Section 25 review: proposed programme for public hearings

Constitutional Review Committee

20 March 2018
Chairperson: Mr P Nzimande (ANC KwaZulu Natal) & Mr V Smith (ANC)
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Meeting Summary

The Joint Committee on Constitutional Review was given a mandate by the National Assembly and the National Provincial Council of Provinces to review of Section 25 of the Constitution, and other clauses where necessary, to make it possible for the state to expropriate land in the public interest without compensation.  The Committee was mandated to propose the necessary Amendments to the Constitution, where necessary.

Extensive public participation was required in order to get the views of all stakeholders about the necessity of, and mechanisms for, expropriating land without compensation.

The Committee meeting was intended to give Members an opportunity to consider a plan of action proposed by the management team of the Committee that would set the process in motion without delay in order to meet the deadline for reporting back to Parliament by 30 August 2018. The Co-Chairpersons had prepared a draft plan of action to manage a nation-wide public hearing process and to deal with written submissions before providing a report or proposed Amendment to Parliament in August 2018.

The first item on the action plan was a proposal to prepare Members of the Committee and to ensure a full understanding of all legislation, proposed legislation, research and current views on expropriation of land without compensation.  The Chairperson informed Members that the Committee had joined with the Nelson Mandela Foundation, the Gordon’s Institute of Business Studies, and the In Transformation Initiative to engage in stakeholder consultations on 27 and 28 March 2018.  The National Land Dialogue with a cross-section of opinion makers in the arena of land reform would provide a valuable induction for Committee Members.  In addition, Members would also be expected to review relevant legislation, especially that in the process of being drafted, research into the land issue and relevant terminology.

The programme proposed at least three public hearings in each of the nine provinces to provide Members with an opportunity for the Committee to get out into the field and to consult with the public.  There were two proposals.  The first option was that all 24 Committee Members went out as a single team to visit the nine provinces.  The second option was to split Members into two teams.  The intention was to include as many people as possible in the public hearings. Thereafter, the Committee would consider written submissions and hold hearings for submitters to clarify matters, where necessary. 

Members agreed that it was best to split into two teams with the Committee, as a whole, attending hearings in the Western Cape before each team visited four provinces. Members raised concerns about access to the venues and suggested additional venues or venues in different locations where there were even larger numbers of people or where there were particular land-related issues.  Members questioned whether there would be sufficient money for the buses that would be required to transport participants to public hearings.  Another concern was holding hearings on weekdays and Members requested that is the program be shifted so that public hearings were held on Fridays, Saturdays and Sundays when people were more likely to be available.

Other issues raised by the Committee included the problem, especially for smaller parties, of being away from Parliament in the month of May which was when budgets were presented in the National Assembly at the rate of three to four per day.  Members noted that even the consultative forum date of 27 March was problematic as there were key items on the agenda of the National Assembly on that day.  Members noted that the time pressure was going to be a significant problem.

The Co-Chairpersons announced that advertisements would be placed in the media, within two weeks, calling for written submissions to be submitted to the Committee.  All submissions would be asked to respond to the question of whether Section 25 of the Constitution was an impediment to expropriating land without compensation, and what mechanisms South Africans would like to see for the implementation of land reform.

Meeting report

Opening remarks
The Joint Committee Co-Chairpersons welcomed Members.  Chairperson Smith explained that the decision to consider a review of Section 25 of the Constitution required extensive public participation and the intention of the meeting that evening was to plan for such a process.  It was an urgent matter.
The National Assembly and the National Provincial Council of Provinces had mandated the Constitutional Review Committee to review Section 25 of the Constitution and other clauses, where necessary, to make it possible for the state to expropriate land, in the public interest without compensation, and to propose the necessary constitutional amendments, where necessary.  In doing so, the Committee was expected to engage in the public participation process in order to get the views of all stakeholders about the necessity of, and mechanisms for expropriating land without compensation.  The Committee was to report to the National Assembly and the National Council of Provinces by no later than 30 August 2018.

Chairperson Nzimande explained that the purpose of the meeting was to address the immediate need to approve a plan of action as many things relied on that process, including budgeting. The Committee management had requested additional staff for the next six months, including a legal advisor, content staff and researchers.

Chairperson Smith explained that the Committee was going to ask the question: 'Does Section 25 cause any impediment to what we want to do?'  The Committee would also ask what mechanisms South Africans would like to see for the implementation of land reform.

He presented a proposed Project Plan for Public Participation Process on Proposed Review of Section 25 of the Constitution for consideration by Members and for suggestions and recommendations to refine the programme.  The key issue was timing as the Committee had to conduct the entire public hearing process and report back to the National Assembly in August 2018. The intention of the meeting was for the Committee to interrogate the plan and to suggest improvements so that the Committee management team could begin organisational processes without delay.

The first action had to be calls for written submissions within a month of the publication of the advertisements. The plan had to be finalised so that a budget could be drawn up. Also, on the programme was a consultation with a wide range of stakeholders on 27 and 27 March 2018.

Mr S Swart (ACDP) asked about research documentation that would give Members some insight into the matter. He felt that it would be helpful for everyone to be on the same page.  He was aware that the consultative meetings on 27 and 28 March would help in that regard, but additional research material would also be welcome.

Chairperson Nzimande said that the Management Committee was trying to raise funds so that all Members of the Committee could attend the consultative forum in Johannesburg the following week. While one could research the matter, the other view was that public hearings were crucial to give direction.  Written submissions would also help.  The Committee would send out advertisements calling for written submissions and to indicate to the public that the Committee was looking for pointers. Furthermore, after the written submissions and public hearings, the Committee would have a better idea as to what needed to be researched. At the current time, the research would be too broad. For the moment, the Committee needed to respond to the resolution which guided the Committee to establish a programme.  Further in-depth knowledge was part of the Committee strategy. Once the Committee had the requested human capacity, research would be taken care of.

Mr S Mncwabe (NFP) stated that it was advisable for the Committee to be armed with legislative issues in that regard.  For example, when he was reading Section 25, it spoke mainly of property issues and only partially to land issues.  He suggested that the legal advisor could indicate where Members could find relevant documentation on the Land Tenure Act, the Restitution of Land Rights Act, etc. because the intention was not to replace law that was already there.  When the Committee spoke about the possible Amendments, Members would have to take into consideration the Land Acts that had already been developed in South Africa.  The Committee could review and improve laws that already existed.  It was not necessary to replace such laws.

Mr F Beukman (ANC) suggested that maybe there was a middle of the road solution in preparing for the following week’s programme.  He suggested that the researchers could produce a very small bundle consisting of the Constitutional Court cases on land matters and maybe a glossary of terminology.  He believed an understanding of the key issues, but especially of the terminology, would be a good starting point for all Committee Members.  He suggested it as a way forward.

Chairperson Smith stated that the Committee could not debate that issue then, but he would allow Mr Swart to conclude the item under discussion.

Mr Swart stated that the most important Constitutional Court judgement was about 500 pages long but suggested that the support staff could perhaps just provide an abstract. He liked the ideas of his colleague because there were relevant Bills, such as the Expropriation Bill and the Restitution of Land Bill, that had an impact on where they were going.  He stated that the Committee needed that information but made it clear that it was not intended to replace public hearings.  Public hearings were very important. The information would equip Members to understand the stance of Section 25. Was it necessary at all to amend the Constitution given what the Members knew, what the courts were saying, what the legal academics were saying and what the public was saying?  He thought that the exercise the following week was going to be very useful. However, he assured Chairperson Nzimande that he agreed that public hearings were very necessary.

Chairperson Smith agreed that the Committee did not want to reinvent the wheel.  He assured Members that the support staff would put together a pack and let Members have it as soon as possible so that Members did not feel naked the following week.

Presentation of Proposed Programme
Chairperson Smith referred Members to the proposed programme before them.  The first item on the programme, after the day’s meeting, was the item on calls for written submissions.  The proposal was that an advertisement be sent out, calling for South Africans to make written inputs on whether the Constitution was an impediment to redistribution, and if it was, what should happen to change it, and that type of thing. The public would be given a month to get back to the Committee.  The Committee Secretary, Pat Jayiya, would place the advertisement in the media as per normal.  That invitation would be released as soon as possible, should the Committee agree.

The second point was that the Committee management team had been informed that work was being done on the issue of land restitution by various academics at the Gordon’s Institute of Business Studies (GIBS) at Pretoria University. GIBS, together with the Nelson Mandela Foundation and the In Transformation Initiative, was holding stakeholder consultations in Gauteng on 27 and 28 March 2018.  The National Land Dialogue would see engagement between landowners, land claimants, land claim lawyers, Land Claims Commission, farming community, government, financial institutions, academics as well as civil society and various foundations.  Amongst those attending were the very people that the management team had considered calling to Cape Town for an induction prior to the public hearings.  The plan had been to hold a two-day induction in Cape Town with academics, departments and so on, but then the management team was informed about the GIBS process.  GIBS, the Nelson Mandela Foundation and the In Transformation Initiative, together with the Committee management team had decided that it would be better to join forces, at the event that had already been organised at GIBS.

The intention was for Members to be inducted into the issues relating to land expropriation.  The experts would be there, and Members would attend both days, learning from those immersed in the debate.  It would be a joint initiative.  Even the funding was joint funding, including funding contributed by the Department of Justice and Constitutional Development.  Attendees at the forum would basically be the opinion makers on land issues and so when Members walked out after the two-day session, their enhanced understanding would complement whatever documentation they had been asking for and which would become part of the tools of the trade.

After 28 March 2018, the Committee would have something to offer in respect of what was already happening.  The Committee could then decide whether to change it, to adopt some of it or whether to scrap all of it.  Many of the people who would be there the following week had already played a significant role in the discourse to date. The proposal was on the table.

The real meat of the matter was the proposed programme of public hearings in provinces that would get the Members out into the field, consulting with the public.  There were two proposals.  The first option was that all 24 Committee Members went out as a single team to visit the nine provinces.  The management team suggested that the Committee spend three days in each of the provinces.  There was no magic about the three days.  The team had simply worked backwards from 30 August 2018, which was the deadline, and had worked out how much could fit in the time available between calling for written submissions and the processing of written submissions.  The Committee would be out in the field for about 27 days plus the number of days required to travel from one location to the other.  Members could decide whether to increase the number of days, but the intention was to ensure that there was full consultation so that at no stage would the Committee be open to an accusation that it had not consulted.  The proposal was to work Tuesday, Wednesday, Thursday and Friday, and, when necessary, on a Saturday, as it might be difficult for people who were working to attend the public hearings on a weekday. 

If Members agreed on the principle, it was suggested that the Committee travelled with the assistance of the Public Education Office and other stakeholders to identify the spots where the Committee should hold its hearings in order to reach as many people as possible. The proposal was to start in Limpopo.  If the Committee travelled as a single unit, it would probably take the Committee until 27 June 2018 to complete the public hearings.  In July, the Committee would consider the written proposals and anything that had been picked up from the public hearings.  Members would have about six weeks in Parliament to process submissions and to prepare the report or Amendment to Parliament.

Option two was that the Committee split into two teams.  Instead of all Committee Members going to all nine provinces, one team would go to the inland areas and the other team would go to the coastal provinces.  Chairperson Smith was of the opinion that in that way all the areas could be covered but that the pressure on individuals would be less because each individual would be doing four or five provinces instead of nine provinces.  It would also give the Committee more time.

Those were the two options on the table.  When the Members returned from the public hearings, the Committee would have to go through the written submissions, followed by the normal public hearing process for those who had submitted to substantiate the written submission.  Thereafter, everything had to be consolidated into a Bill or a report for Parliament.

Once the proposed plan had been adopted, the next step would be to take it to the leaders or the powers-that-be for funding.  As Members could imagine, funding would have to be fairly substantial to pay for all Members to travel and for accommodation as well as venues etc.  The sooner that the decision was made, the sooner the process could be budgeted and forwarded to those who had to find the funding. The management team would also be able to plan for the process.

Mr Swart made reference to the proposed dates.  He indicated that the month of May was a very busy time in Parliament with all the budget votes.  For Members, such as himself, from the smaller parties, it was a very big challenge.  The Committee also consisted of a lot of Members from the Portfolio Committee on Justice and Correctional Services.  He suggested that the joint Chairpersons might wish to have a discussion with the Chairperson of the Justice Committee.  He recognised that the matter was urgent, but had to raise the issue that was very difficult for him as he had to speak in debates and so on. 

Regarding the options, he was in favour of option two where the Committee split up.  Instead of 24 people going to the same place, the Committee could possibly cover more places.  However, that was just his initial thought.  He liked the point that Chairperson Smith had made about the onerous burden on Committee Members should they each have to go to all of the venues.  Obviously, because there was a time pressure, it was important to start as soon as possible, but he asked the Chairpersons to remember the workload of the Members.  He wondered whether there was not a period of extended constituency time that could be used for the public hearings without eating into Parliamentary obligations.

Mr L Mpumlwana (ANC) said that his point had been covered.  He understood land expropriation was a very, very important topic and that many people had an interest in it.  In most cases, Parliament was guilty of consulting only those who were able to get to Parliament or to certain areas.  He was not sure about the people on the farms.  What provision would the Committee be able to make to get farm workers?  There was a problem because it was dependent on the baas and the baas allowing them to go.  What provisions were being made for such people?  Farm workers were the most vulnerable group and he wanted to know how the management team had planned to touch them.

Secondly, it appeared to him that the time was very, very short. He suggested that maybe the Committee should start the ball rolling and ask Parliament to give additional time of maybe a month or so to make sure that they had covered quite a number of people. He was not sure how other people viewed it. Option 1 or Option 2 would depend on the questions that the Committee was going to ask.  He trusted that there would be guidelines as he would not like to see one team approaching the public hearings differently from the other.

Mr M Mhlanga (ANC, Mpumalanga) noted that, looking at the programme, it seemed to be categorised per region per district in terms of the participatory programme.  In terms of mobilisation, as the latter speaker had said, he felt that it was more important to put the onus on the District municipalities to make sure that they supported the initiative in whatever way they could, such as bringing people to participate, especially affected parties such as farm dwellers and so on.  The issue of guidelines was also very important and had to be taken into consideration if the Committee was going to split up into two groups.  There needed to be a framework for approaching the hearings.  He would like to report back in August, but the issue was that he would like the Committee to be able to, either before or after tabling the report, go for a study tour so that the Committee could benchmark against the progress of forces on the matter of land, or progressive movements on the matter of land.

Chairperson Smith noted that everyone wished to speak.  As it was about the programme which had to be finalised in that meeting, he suggested that everyone be given an opportunity to speak on the programme.

Mr N Shivambu (EFF) commended the Chairpersons and those who had assisted on the programme.  He thought that it was an excellent programme and wanted to move that the Committee adopted the programme. The only addition that he wanted to make was with regard to the areas that would be visited in KwaZulu-Natal.  He wanted to add another area.  He suggested a location in the Umkhanyakude District, either Jozini Municipality, Ingwavuma Municipality or Mtubatuba Municipality as there were burning issues in that area.  The area had the world’s biggest wetlands and people had been speaking about access.

He added that those Members who were committed to working on the Committee should be prepared to forego other commitments in Parliament and deal with the matter as had been done in the ad hoc committees in Parliament.  He reminded Members that when they had worked on the SABC, they had set everything else aside.  Likewise, Members had focused everything on Eskom and State Capture.  There were burning issues and it was an issue of national interest, so the Members needed to go and listen to the people in terms of what would be the best framework for expropriation of land without compensation, which was inevitably going to happen.

Ms T Mampuru (ANC Limpopo) agreed with the proposal that the Committee be split into two. Mr Shivambu had raised the issue of KwaZulu-Natal.  She also saw that both groups would be visiting the Western Cape.  She asked what the criteria were in determining the areas that were to be visited.  She wanted to know why the management team had specifically chosen Groblersdal because, according to her, Limpopo was very rural, and it was not possible to say that one location was central to the land that was open.

Mr Mncwabe fully supported the idea of splitting the Committee into two groups as Members had a big job to do.  Almost everyone in the country was looking at that Committee due to the nature of the work given to the Committee.  He also wanted to support Floyd (Shivambu) and the issue of KwaZulu-Natal, especially Jozini.  In addition to the issue of the land, there was also the Jozini Dam which was a large dam that was privately owned and had been a matter of concern, let alone the private game reserves and the wetland.  He supported the idea of going to Umkhanyakude District as it was a very big district and predominantly rural. 

He noted that one of the Members had suggested that there might be a need for a study tour.  It had been in his mind that perhaps there was a need to visit Zimbabwe and to see and establish where it had gone wrong and why the country now wanted to correct it. President Emmerson Mnangagwa was speaking another language on the issue of land, which was not as radical as that of the old man.  The Committee could not run away from the fear that the country was going to be like Zimbabwe.  Members had to look at those lessons and listen to the people in South Africa as well.

Chairperson Smith requested that each member limited him or herself to two minutes.  He wanted to know whether people agreed or disagreed and what improvements they could suggest.

Adv G Breytenbach (DA) had nothing to add to what had already been said.

Mr C Matsepe (DA) supported the idea of splitting into two groups.

Mr J Selfe (DA) supported the idea of splitting into two groups.  He suggested that the Committee should be somewhat flexible when it came to the programme, particularly around the places that the Members went to because it might very well be that when they went to a particular place, there might be other places that they would have to go to.  Subject to that disclaimer, he supported the programme.

Dr A Loriet (DA) supported the programme and splitting into two groups.

Dr C Mulder (FF+) heard colleagues saying that they supported the programme, but it was quite an ambitious programme.  He understood that the deadline was 30 August 2018, but it had to be recognised that the month of May was crucial for budget votes going through Parliament three or four at a time.  So, what he was saying was that it was going to be impossible.  He asked the Chairpersons to remember that the smaller parties were represented on Committees by two Members but on this Committee all the smaller parties wanted to participate because it was a specific issue and the parties had very divergent views on the matter.  If the Committee held public hearings in the month of May, some of the smaller parties simply would not be able to participate because they had responsibilities in Parliament.  The second point that he wanted to make was about the consultative forum the following week.  Parliament was in session on 27 March and some of the representatives of the smaller parties were involved in some of the debates.  He added that if the Committee did hold public hearings as per the programme, then the Committee would obviously have to split and go as two groups.

Mr Swart was covered.

Ms R Mothapo (ANC) endorsed the comments of her colleagues, but she had a small concern with regard to Limpopo.  She aligned herself with Ms Mampuru, especially in the light of the politics prevailing in Limpopo.  Excluding Mopane might be a problem because there were specific issues in Mopane and she requested that that be taken into consideration.  She was also concerned about accessibility.  Her colleague had made mention of Groblersdal which was not central to the people of Sekhukhune and other towns.  She commended the Co-Chairpersons and the Secretary on the program.

Mr Beukman agreed with the sentiment of splitting into two groups.  He had just one point he wished to make.  He suggested that the bias should be towards the weekends.  They would not get the people on weekdays in the rural areas and therefore it would necessary to use the weekends, especially in some areas.

Mr Mahlangu supported the split into two groups.

Ms C Motara (ANC Gauteng) supported the split into two groups, taking into consideration the need to be flexible depending on where the Members were going.

Mr Motlashuping (ANC North West) also supported the proposal to split the delegation into two groups.  It made a lot of economic and political sense.  It would save time.  In respect of embarking on a study tour, he did not think that the Committee would be able to do it.  He understood that some Members might want to take a look at Africa but bearing in mind that it was an election year and the constraints on the budget, he proposed that the suggestion of a study tour be withdrawn and that the Committee focused on the task at hand.

Mr S Maila (ANC) supported the programme as it was very good.  He supported the idea of splitting the group as there would be less pressure on the individuals who would be more creative and more energetic.  He proposed that those who wanted to make changes to the venue should submit proposals to the management team.  He warned that it was not going to be possible to cover all areas.

Mr Mpumlwana stated that he was looking at the Eastern Cape, in particular.  He found that there needed to be a lot of adjustments there.  Three venues would not be enough, and they might need to go up to five venues.  If one looked at Bizana, it was 350 km from Mthatha.  The Committee would have to extend the days and the times.  He also asked about buses.  Did the Committee have sufficient money and had the number of buses been considered?  The distances across the province were vast.  He reminded the Chairperson that he was also concerned about farm workers.

Mr L Mokoena (EFF Free State) stated that he supported the programme and the two groups that had been proposed.  He reminded Members that there were three spheres of government that should support each other.  Local government should be engaged, especially in respect of the buses.  Local government should be part of the programme.  He also put emphasis on the study tour because South Africa was not an isolated entity and Parliament needed to benchmark its policies and regulations.

Mr Shivambu asked that they concentrate on the workers because those were the voices that they wanted to hear.

Dr M Motshekga (ANC) supported the suggestion that the recommendations for changes to venues be submitted to the management team and not dealt with in the Committee meeting.

Chairperson Smith agreed that the management team could handle the matter of venues, but he wished to emphasise that the programme was not the management team’s programme - it was the Committee’s programme, and everyone had to own the programme.  In terms of the split, that seemed to be the preferred option and the management team and support staff would work on that.  In respect of locations, the management team had been thinking of central locations, but the Members came from the various areas and might know better than the management team did.  He asked that Members who wanted to suggest changes did it at that point.  Changes could not be made later as it had to do with logistics and so on.  If the management team had not received proposals for changes by the end of the month, the team would go ahead with the plan as it stood.  He could not accept late changes because that would impact on the ability of the team to plan.

The month of May was an issue that needed to be spoken about.  One of the Members had pointed out that sacrifices would have to be made, but he did understand that for the smaller parties it was not going to be that easy.  There was a concern about May being right in the heart of budgets but, unfortunately, the Committee was working towards a deadline.  Members could not start thinking about extensions on day one.  That was just not the way that it worked.  However, May was a real concern and Members might have to talk about it further.

As far as weekends were concerned, he was quite sure that the programme could be rearranged to run on Fridays, Saturdays and Sundays.  The whole issue of mobilisation and buses was a function of the budget.  The in-principle agreement was that people would be bussed in to a venue and that was what would be considered when drawing up the budget.  The budget had to cover venue hire plus transport and everything else.  That was why agreement on the actual locations was critical as only then could the management team know how many buses would be needed from the surrounding areas. It was in the budget plan but until costs were determined, and Parliament had agreed on the budget, he could not say how far and how many people would be bussed.  The intention was to go to as many people and places as possible.

He agreed that one could not argue about a time constraint on the one hand and ask for a study tour on the other hand.  Unfortunately, he did not think that the Committee would win the battle of a study tour.  He did not think it was even worth pursuing the matter.

Broadly speaking, he believed that the questions had been answered and that everything had been tied up.  He was also aware that 27 March was a day on which Parliament would be sitting and so many Members would not be able to attend the consultative forum.  He was working on the 27th and had to be in the House but had decided that he would attend on 28 March 2018.  He encouraged as many people as possible to go, but he understood that there were other responsibilities.  Those dates, unfortunately, could not be changed because it involved a broader range of stakeholders.

Chairperson Smith asked Committee Members to give the management team the right to split members.  If each Member chose for him or herself, the Committee might not get the balance correct.

Mr Mpumlwana asked that the management team take cognisance of the languages that were spoken in the different provinces.

Mr Shivambu suggested that the whips of each party could make the split. The whips would take relevant considerations into account.

Chairperson Smith indicated that there was no problem if the whips chose to split Members into Teams A and B but that would be also be required by 28 March 2018.

Chairperson Nzimande announced that the meeting had come to an end and he wanted to thank all Members for helping the Chairpersons who would move on to process the decisions that had been taken. The Committee would meet again when it was called.  He thanked Members for their participation and attendance.

Chairperson Smith asked Members to kindly inform the Secretary as to whether they would be attending the consultative forum on 27 and 28 March, or not.  If a Member was only attending one day, that should also be submitted to the Secretary.  She required the information via email by the following day so that she could make travel and accommodation arrangements.

The meeting was adjourned.


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