Section 25 review: adoption of programme for public hearings

Constitutional Review Committee

10 May 2018
Chairperson: Mr V Smith (ANC) NA & Mr P Nzimande (NCOP)
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Meeting Summary

The meeting concerned the programme to facilitate public hearings on the proposed review of section 25 of the Constitution to provide for the expropriation of land without compensation.

Chairperson Smith noted the public hearings were originally scheduled to begin at the end of May 2018. The NCOP however had to consider the budget approval process during that period. As a compromise the public consultation process would then begin on 26 June 2018. Chairperson Smith said that different approaches would be adopted in different provinces. A one size fits all approach would not be appropriate. It would also not be practical to visit every region in every province. Once the written submissions were received the Committee would deliberate on them. The written submissions would determine who would be invited to provide further oral submissions on the proposed constitutional amendment.

None of the Committee Members had any principled objections to the programme. A COPE and ACDP member indicated a substantial number of submissions had been received – close to 140 000 thus far. How would the Committee consider all of those submissions in a meaningful manner? Would all members of the public be invited to make attend the public hearings or only those who provided written submissions?

Both the Helen Suzman Foundation and the Organisation Undoing Tax Abuse (OUTA) requested an extension to the deadline to make written submissions. ANC and EFF members opposed the extension on the basis that: certain organisations had ulterior motives in wanting to frustrate the consideration of the substantive issues on the amendment of the Constitution and those organisations would be able to attend the public hearings if they had further submissions to make. Chairperson Smith noted these concerns but suggested – which was accepted – that the deadline be extended for an additional two weeks in order to ensure that the entire process would be procedurally above board, should any organisations or other individuals attempt to litigate on this process in the future.

The Chairperson requested the Committee Members – in consultation with the Chief Whips of their political parties – to divide themselves into two different groups. One group would conduct public consultations in coastal areas. The other group would conduct the hearings in inland areas. If the groups were uneven, the Chairpersons would exercise their discretion to reshuffle those groups. If any objections were to be made regarding the programme those objections must be made by Members by the following Wednesday. If no objections are lodged by that date then the programme will be adopted as tabled.

Meeting report

Chairperson Nzimande (NCOP) opened the meeting.

Mr J Selfe (DA) and Mr F Beukman (ANC) had provided apologies explaining their absence. No other apologies were received.

The agenda had two items for discussion. All the members had received the agenda. Chairperson Nzimande moved a proposal for the adoption of the agenda.

Professor A Lotriet (DA) seconded the motion to adopt the agenda. The agenda was adopted.

Progress Update & Proposed Programme
Chairperson Smith provided an executive summary of the progress thus far on the public hearings regarding the potential amendment of section 25 of the Constitution to provide for the expropriation of land without compensation.

The first meeting of the joint committee had adopted a programme of public hearings which were scheduled to begin at the end of May 2018. A notification was received it would not be possible to begin those hearings at the end of May 2018. This was because the National Council of Provinces (NCOP) component of the joint meeting had to be afforded an opportunity to conclude their budget approval process. As a compromise, Chairperson Smith proposed the public consultation process then begins on 26 June 2018 to afford the NCOP an opportunity to conclude the budget process. The Joint Committee had resolved to have public hearings for three days in a number of provinces. At those hearings the public would be afforded an opportunity to interact directly with the Committee. The following provinces would have four days of hearings: Kwa-Zulu Natal, Eastern Cape, Limpopo, Northern Cape and the Western Cape. The following provinces would have three days – or three events – of public hearings: Gauteng, Mpumulanga; Free State and the Northwest. A one size fits all approach therefore was not adopted. Rural areas – as suggested by members of the Joint Committee – would have four, as opposed to three, days of hearings. At least one of those four days would be on the weekend. The Chairpersons had attempted to incorporate this into the programme. Given that the process had been delayed from commencing from the end of May to the beginning of June, Chairperson Smith proposed the Joint Committee move their report from their public consultations back two weeks. The proposal thus was to move the report back from the original date of 30 August 2018 to 12 September 2018. This proposal would have to be considered by the Committee as a whole.

Chairperson Smith proposed the following dates to meet various stakeholders in the public consultation process. Key stakeholders, inclusive of Churches, academic groups, government groups and researchers would be engaged with in a colloquium on 25 May 2018 in the morning. After lunch, SALGA, traditional leaders and other relevant stakeholders would be engaged. It was proposed that from 01 to 07 July 2018, the Committee consider the written submissions received.

Mr S Swart (ACDP) interjected. Chairperson Smith keeps on misquoting the applicable dates. The written submissions would be considered in June and not July. The media and other groups would be relying on the dates stated to participate in the public process.

Chairperson Smith apologised for the error. The Committee would consider written submissions from 01 to 07 June 2018. On 14 June 2018 Parliament would finalise – based on the written submissions received and considered at that point – resolve who should be asked to present further submissions before the Joint Committee. The following week it was suggested that a briefing be provided from support staff such as security and publicity to facilitate the public consultation within the provinces. From 27 June to 06 August – a period of approximately six weeks – it was proposed that the Committee divide themselves into two groups. One group would engage in public consultations in inland areas. The other group would engage in public consultations in coastal areas. During that six-week period a one-week break period was proposed. During that break the support staff would continue to examine the written submissions received. No face to face oral hearings would take place during that break period but the written submissions would continue to be scrutinised by the support staff.

From 07 to 17 August, it was suggested that the oral submission hearings be concluded. That would give the Joint Committee eight days to consider those oral submissions, excluding Monday. At this point however, a definite period regarding how long the consideration of those oral hearings would take cannot be definitively provided. This time period may change depending on the number of oral and written submissions received at the end of the process. The following week would be used for drafting the Joint Committee report to Parliament. From 04 to 07 September the Committee would then deliberate on the report. On 11 September the report would then be adopted for publishing in the ATC (Announcement, Tablings and Committees).

Chairperson Smith reiterated that the only change to the programme was that the Committee would begin the public consultation in early June – as opposed to the end of May – to allow the NCOP to complete their budget vote process.

Chairperson Nzimande requested the Committee to make any comments they wished to make on the programme and changes proposed.

Ms D Carter (COPE) had no principled objections to the programme. However, the Committee still needed to be realistic. Public opinion polls – called for by the Joint Committee – indicated that most of the input is provided in the last few days of the public consultation process. This was her exact experience when dealing with the Civil Unions Act. If there are currently around 140 000 submissions at present, then it is most likely the Committee will receive submissions in excess of 500 000. Are all of those submissions going to be considered within a seven-day period? The consideration of those submissions will determine who will be invited to make oral submissions. Given that over 100 000 submissions have already been received it is possible that over half a million submissions may be received in total. Practically, it will be difficult to consider all of those submission properly during that seven-day period.

Mr Swart had no principled objections to the draft programme. He welcomed the colloquium on 25 May 2018. However, on that date there is also the Appropriation Bill which has to be considered by Parliament. The budget vote will also be considered during that period. Both items will require a significant amount of attention which is something to keep in mind. It had also been indicated the deadline for written submissions may be extended to 30 June 2018. How will that impact the selection for oral submissions which will have to be deliberated on from 01 to 07 June, given the proposed extension of the deadline for written submissions to 30 June 2018? The President had indicated in Parliament that over 140 000 submission had already been received. The President himself indicated – in much the same manner as Ms Carter – that over 500 000 submissions would most likely be received in total. Would it then be fair to exclude the submissions which are only received after 07 June as many of the people who make those submissions would most likely also want to make oral submissions in many cases. Regarding the consultation with the provinces, would that process be such that everyone in the province would be invited to make oral submissions or would only those who had previously made written submissions be invited to engage at those provincial engagements? How is that process to be managed? This is something which the Committee must deliberate on.

Mr T Motlashuping (ANC) had no principle objections to the programme. However, he had some concerns regarding public engagements in the North West province. The North West is demarcated into four regions. Three regions are reflected in the public hearings in the North West, but the Kenneth Kaunda region is omitted. Why is that region omitted from consultations?

Ms M Mathapo (ANC) said the reference to “Church based organisations” should be changed to “faith-based organisations”. This is a broader term which will include, for example, traditional faith-based organisations. This will prevent a perception that the Committee is aligned to a Christian based conception of spirituality or religion. Previous issues raised regarding consultations in Limpopo have, in her view, been adequately addressed.

Mr F Shivambu (EFF) – partly in response to Mr Motlashuping – said the Committee could not be excepted to visit every region in every province. If for example, three out of four regions are visited that will be sufficient, in so far as public consultation is concerned. Kwa-Zulu Natal for example has eleven regions and the Committee cannot be expected to visit every single region. The programme is adequately consultative at present. The letters received from the Organisation Undoing Tax Abuse (OUTA) and the Helen Suzman Foundation requesting an extension of the deadline for submissions are, in his view, opportunistic. Those requests are aimed at clogging the system and frustrating the ability of the Committee to engage with the substantive issues regarding expropriation of land without compensation. The current deadline for submission is more than adequate. The selection of written submissions which may be elevated to oral submissions should be considered as a matter of urgency and those submissions should be identified immediately once the written submissions were received. The support staff of the Committee should immediately begin the process of identifying those submissions. Some submissions simply repeat what other submissions already say. The submissions which are repetitive can be disregarded as they raise no new substantive issues and secondly, only those submissions which raise new substantive issues should be considered for elevation to oral submissions. The Committee should not be intimidated by pressure groups who aim to clog and frustrate the process.

Chairperson Smith first responded to Mr Shivambu. The Committee would consider the submissions as they are received. The House Chairperson had been requested to increase the capacity of the Committee to properly consider all the submissions received. Of all the submissions thus far, 64 000 have come from a WhatsApp group. The aim of that group, in his view, is to clog the system. 1100 submissions have been received from Afriforum alone. The other submissions – which are yet to be sifted – are around 40 000 which appear to be genuine submissions and will be dealt with in due course. The IT Department had been requested to get a second inbox to facilitate the consideration of those submissions in an efficient and proper manner.

Responding to Ms Carter, Chairperson Smith stated that if 500 000 submissions were received then the Committee would have to consider 500 000 submissions. There is nothing that the Committee can do about the amount of submissions received. However, as raised by Mr Shivambu, those submissions can be dealt with in an efficient and sober manner.

Responding to Mr Swart, the consideration of the Appropriation Bill on 25 May 2018 was noted. In principle, if it will not be possible to have the colloquium on that date then an appropriate date will be determined, and the Committee will be informed in due course if any changes are made.
The legal department would provide the Committee with an opinion regarding whether to grant a postponement for the deadline for public submissions as requested by OUTA, the Helen Suzman Foundation, Adv Paul Hoffman SC and others.

On the actual hearings – in response to Mr Swart – Chairperson’s Smith’s view is that those public hearings are an open invitation, and anyone will be able to attend regardless of whether they made written submissions or not. South Africans will be engaged as a whole. It will be necessary to ensure that any venues are appropriate for the numbers concerned. The Committee should not attempt to shift through who can – and who cannot – attend those public hearings.

In response to Mr Motlashuping there is no magic regarding how many regions are visited by the Committee. Accommodations would have to be made as practically the Committee cannot visit every region in the country. However, it is important to ensure that the public has an adequate and proper opportunity to consult to ensure that if the Committee is taken to the Constitutional Court, then they will not be found wanting from a process point of view. He agreed with Ms Mathapo’s suggestion that the reference to “Churches” be changed to “faith based organisations”.

Chairperson Smith stated the Committee appeared to be in consensus on the majority of the issues raised thus far. The final issue for consideration was whether the extension of the deadline for public submissions should be granted.

Chairperson Nzimande requested the Committee to provide their views on whether the extension should be granted or not.

Mr Swart asked whether the extension would result in any prejudice to anyone? In his experience, extensions for public submissions on Bills are often granted provided it does not result in any substantial prejudice. The same approach should be followed. This is a substantive matter with a high degree of public interest. Arguably, sufficient time has already been given. However, the extension should in his view be allowed as requested by OUTA and the Helen Suzman Foundation.

Mr D Ximbi (ANC) opposed the extension. If the extension was allowed this would open a “can of worms”. The process must move forward, and no further extensions should be provided.
Another member opposed the extension. How genuine is the request? As noted by Mr Shivambu the Committee must guard against pressure groups whose sole aim is to frustrate the consideration of substantive issues and clog the process. In his view, sufficient time has already been provided. The organisations in question are structured organisations who should have made their submissions in time. He supported the view of Mr Ximbi that to grant an extension at this point would divert the Committee’s focus from a consideration of the substantive issues.

Ms Carter stated the issue of public consultation is not about particular organisations. It is fundamentally about facilitating the input of the public as a whole. Any person – whether an individual citizen, company or NGO – can make comments, all of which are equally valid. She had received a confidential legal opinion which outlined the process for the extension of the deadline for public submissions. The starting point should be to consult the legal opinion to determine whether the deadline should be extended or not. The last paragraph of the legal opinion, in her view, provides an answer to that question.

Mr Shivambu said right wing opportunism is trying to take advantage of the public participation process with the ultimate aim of frustrating the substantive work of the Committee.

Mr Swart interjected with a point of order. It is not helpful to revert to comments or insults regarding the submissions of different organisations or individuals. Every person is entitled to make submissions and the Committee should refrain from labelling those who make submissions as “right wing” or otherwise. Every submission must be equally considered on its merits without reference to political ideology or other disagreements which members may have with those who make those submissions.

Chairperson Nzimande noted Mr Swart’s objections. However, the Chairpersons cannot dictate to Members how to frame their responses and engagements. Mr Shivambu is not procedurally out of order and therefore the point of order appeared to be rejected.

Mr Shivambu reiterated right wing elements are attempting to undermine the ultimate substantive issues which the Committee wants to consider by clogging the system with frivolous submissions and requests for extensions. Afriforum for example is currently in America attempting to garner support from colonial elements to undermine a legitimate process undertaken by the South African Parliament to investigate this particular issue. As public representatives, the Committee is duty bound to expose those elements who are attempting to undermine the sovereignty of South Africa and Parliament. Those elements are trying to undermine the return of the land to their rightful owners. To be safe, the Committee should allow further submissions to be submitted. However, the original time period should be stuck to and submissions considered as they are received. Public platforms can also be created to facilitate public input on this issue. The people of South Africa must be allowed to participate in the programme, but a time frame has been agreed upon and must be stuck to.

Mr L Mpumlwana (ANC) said the deadline should not be extended. A huge amount of submissions have already been received. People who do not meet the deadline for written submissions can always attend the public hearings. The public hearings – in addition to the opportunity to make written submissions – are more than adequate. Those who have requested an extension should be informed that unfortunately the request cannot be granted. However, they should simultaneously be informed that they can make further inputs at the public hearings.

Mr D Stock (ANC) suggested the Committee agree in principle to the adoption of the programme. A few minor alterations would have to be made. On the extension request it is important to facilitate public involvement but also – as raised by Mr Shivambu and Mr Ximbi – it is important to guard against those who want to clog the system and undermine the work of the Committee. The Committee must guard against being sent from pillar to post. The Committee cannot practically consider 500 000 submissions individually. The technical committee will isolate the submissions accordingly to facilitate the consideration of those submissions. At the same time however, it is important properly facilitate public consultation wherever possible, without undermining the programme as adopted. In his view, the Helen Suzman Foundation and OUTA, appear to want to litigate and therefore hold the Committee to ransom if an extension is not granted. They should be accommodated as far as is reasonable to properly facilitate public input on the work of the Committee, but this cannot be done at the expense of the time frames agreed upon as a whole.

Chairperson Smith said the public had been given 45 days to make submissions. Additionally, the Committee will be facilitating public engagements in all nine provinces. That is more than sufficient in his view. However, in the spirit of public consultation he recommended that an extension of two weeks be provided, bringing the total amount of days to 60. At the end of that period no further extensions should be granted otherwise – as raised by Mr Stock, Mr Ximbi – the work of the Committee will be sabotaged.

The Committee agreed to the two-week suggestion proposed by Chairperson Smith.

Mr Swart asked what effect the extension would have as alluded to Ms Carter with reference to the legal opinion she had received? In his view however, 60 days would be more than adequate. Why however was the legal opinion not circulated amongst the Committee.

Chairperson Nzimande stated the Committee had asked Parliament’s legal department to make a recommendation on public consultation therefore it is not really a legal opinion as such.

Mr Mpumlwana had a single comment on Eastern Cape hearings. Hearings would be conducted in both Queenstown and Stutterheim. The Stutterheim hearings should be moved to King Williams Town which is more central. The public hearings in Jansenville should be moved to Port Elizabeth which is also more central.

Chairperson Smith appealed to the Committee to accept that the programme is a compromise between various interests and requests. Practically in a committee of 24 members, not everyone can be ideally accommodated. The programme has been put before the Committee. He appealed that the programme as is be adopted.

Mr N Koornhof (ANC) said there was a typing error. The programme refers to the 6th to 7th June, when it should the 4th of June.

Mr Shivambu responded that the draft programme had already been adopted. He recommended that the co Chairpersons then exercise their discretion at the applicable time whether further changes should be made, as the need arises, to facilitate public engagement in other areas. The programme is solid, and the Committee should begin engaging with the public on the land issue without delay.

Ms T Mampuru (ANC) agreed with Chairperson Smith that not everyone can be ideally accommodated. The programme should be adopted as is, and then if issues arise later they can be dealt with accordingly.

Chairperson Smith stated if no suggestions to amend are received by Wednesday 16 May 2018 then the programme will not be amended and will therefore be adopted as is. The public needs to be informed and prepare for consultations with the Committee and further amendments beyond Wednesday would create undue delays and technical complications. He requested the whips of the respective political parties provide, by Wednesday 16 May 2018, which members will go to the coastal areas and which will go to the inland areas. If the final list is unbalanced, then the Chairpersons will exercise their discretion to shuffle the members to ensure an equal proportion of members in each group.

Mr Mpumlwana wanted to know whether the Committee had sufficient support staff?

Chairperson Smith reassured Mr Mpumlwana that sufficient support staff would be provided. He cannot provide the exact numbers at present but sufficient support would be provided.

The meeting was adjourned.

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