Expropriation Bill: withdrawal, with Deputy Minister

Public Works and Infrastructure

28 August 2018
Chairperson: Mr H Mmemezi (ANC)
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Meeting Summary

The Portfolio Committee (PC) met to consider the withdrawal of the Expropriation Bill, with which it had been sitting since 2015. The Chairperson provided a brief background, explaining that the Bill had passed all stages until it reached the former President, who had returned it to Parliament twice to consider certain issues. The PC on Public Works was the relevant portfolio, and it was aware that Parliament had set up an ad hoc committee that was dealing with Sec 25 of the constitution. However, there could not be parallel processes going on in Parliament at the same time, so the PC had been advised to send the Bill back to Parliament. The work of the Committee was to withdraw the Bill. It had to produce a report which it would take to the Speaker, indicating that it was rejecting the Bill.

Members raised the question of whether “land” and “property” meant the same thing, since the Expropriation Bill was dealing with property, whereas the constitution review committee (CRC) was dealing with land. The Deputy Minister acknowledged that there was an overlap between the two areas, and that even though the matters being deliberated were not the same, the results would be similar.

The Chairperson clarified that Members were not dealing with the contents of the Bill, and that the Committee needed to pass a resolution on whether it was dealing with the Bill or rejecting it. Members of the Committee thought the word “rejection” was too strong, and that the best word to use was “withdrawal.”  However, the Chairperson responded that the rules provided that the word to be used was “rejection.”

The Deputy Minister confirmed that the intention was to withdraw the Bill and to present a revised version of the Bill later which would indicate that, in the case of expropriation, there would be specific conditions to ensure it would be just and equitable. Members of the Committee passed a resolution that the Bill be rejected. The DA reserved its right to support or reject the report.

Members also noted that the wording of the new Expropriation Bill would have to take into account the CRC report and an amended constitution. The new start could happen only after that process was completed, and the matter may be ready for consideration only by the term of the Sixth Parliament.

Meeting report

Background to Expropriation Bill

The Chairperson said he was going to provide a brief background of the Expropriation Bill, and thereafter allow Members to comment.

Mr M Figg (DA) raised his concern as to why no apologies had been received from the Minister and the Director General (DG).

The Chairperson confirmed that he had received apologies from the Minister and the DG, and that the Deputy Director General (DDG) would be present later on. He commented that the Minister was busy, but added that the Minister should not account via the Deputy Minister all the time.

He commented that the Portfolio Committee (PC) on Public Works had been sitting with the Expropriation Bill since 2015. The Bill had passed all the stages until it reached the former President, who had returned it to Parliament twice. There had been issues raised concerning the Bill which Parliament had to look into, and these were listed in the report which had been provided to Members. He added that the PC was the relevant portfolio, and that it was aware that Parliament had set up an ad hoc committee that dealt with Sec 25 of the constitution. There could not be parallel processes going on in Parliament at the same time. The PC had to send the Bill back to Parliament. The work of the Committee was to withdraw the Bill. He also reminded Members that there were a lot of issues that made the Bill problematic.

The PC had to make a report which it would take to the Speaker, indicating that it was rejecting the Bill.

Discussion

Ms C Madlopha (ANC) thanked the Chairperson for providing a background to the Bill. She observed that there had been a mistake, and that joint rules 203 (2) and 3 (c ) were the relevant sections on referral to the Assembly committee, and not 208. She agreed that Parliament was dealing with the matter of reviewing Sec 25 of the constitution dealing with the issue of expropriation without compensation. She then proposed that the Committee reject the Bill until it heard from the committee dealing with Sec. 25.

Mr M Filtane (UDM) recalled that there had been a lot of debate on the definition of “property.” The PC had requested the Department of Public Works (DPW) to give a definition, and that the definition of property as contemplated in the constitution was the final conclusion. He added that land was property, but property was not necessarily land. The Constitutional Review Committee (CRC) was deliberating about land, not property, and having been part of the CRC, the question of definition had come back time and time again. He said that the Expropriation Bill was about property, and not land.

Ms Madlopha raised a point of order, saying that the PC was not deliberating on the Bill. It was saying that it could not have same process as the CRC, and that was why it should reject the Bill.

The Chairperson sustained the point of order, and clarified that the PC was not dealing with the contents of the Bill.

Mr Filtane argued that the Chairman had passed judgment before allowing him to finish his statement.

The Chairperson confirmed that the question was whether the Committee was rejecting the Bill, or if it was dealing with the Bill.

Mr Filtane said that the issue of definition related to whether the Bills were speaking to the same thing. The Committee should avoiding situations where it oversimplified things. He asked whether the PC should suspend the processing of the Bill, instead of rejecting it outright. The question was whether land and property meant the same thing. This Bill was dealing with property, while the CRC was dealing with land. Which portfolio Committee was supposed to deal with land – the PC on Public Works, or another Committee?

Ms E Masehela (ANC) agreed that the PC on Public Works should withdraw the Bill from its side. It had been dealing with the Bill all along, but the ad hoc committee was dealing with it now, and Parliament could not have parallel processes going on.

Mr D Ryder (DA) commented that it was not right that the agenda for the meeting had been circulated at 3.30 p.m. the day before the meeting. He had been surprised to hear the Chairperson on the radio discussing the issue of withdrawing the Bill, yet he himself, as a member of the Committee, was not aware of it. He asked that his consternation be put on record, because the report was given to Members only the morning before the meeting. He said that the administration of the Committee had failed. He referred to the Committee’s oversight trip to the Eastern Cape, where arrangements had been poorly effected and only a handful of Members had been there. He was not ready to decide, and needed more time to interrogate the report properly.

He observed that the Committee had shelved the Bill at its previous meeting, and withdrawal was the next logical step. The President had been on record as saying that the constitution envisaged expropriation without compensation, and that it was the specific circumstances which needed to be clarified. He added that Section 25 (5) of the Constitution provided that the state must take reasonable legislative measures, which was the basis upon which the Expropriation Bill needed to be finalised. He added that if the Expropriation Bill was what would clarify expropriation, then there would be no need to change the Constitution.
 
Mr Figg said that the CRC was looking at the Constitution, whereas the PC was dealing with the Bill. The Committee was not dealing with the Constitution, and it must be careful of conjoining the two, whereas the outcome would probably be similar. The report handed out stated that the PC had done certain things yet he could not recall any of those decisions being discussed. He said that the Committee was rushing to ensure the task was completed without serious considerations. The Bill had been sent back to Parliament because of certain flaws. Once the Bill was withdrawn, his concern was that there would be a new Bill which was not an amendment. He raised his concern on when the new Bill could be expected to be finalised.

Mr Jeremy Cronin, Deputy Minister of Public Works, appreciated the agreement among Members that there was going to be withdrawal. He agreed that Mr Filtane was raising a legitimate point. The two processes were not the same thing, but the two processes were very overlapping. The PC was looking at general expropriation, covering all forms of expropriation, including intellectual property, to ensure it was a just and equitable process. The CRC was looking at the expropriation of land, but there was a significance overlap. The report presented said that the Committee had been put in quandary because of the public debate, and going out into this without clarity, the PC would encounter the same problem that the CRC had.

From the country’s perspective, there was a polarisation of two highly emotional issues. Members had a country responsibility. One could guess the outcome of the CRC, and that there was a strong possibility that the constitution needed to be amended. The constitution allowed the legislature to take measures, provided the provisions were in accordance with section 36(1), the general limitation clause, to the extent of being reasonable and justifiable. Parliament had allowed for that, but the PC needed to send a signal that the approach that would be taken would be implicit in the constitution, and would not be a Zimbabwean style of land grabbing. The best way was to present a revised version of the Bill, to indicate that in the case of expropriation, there could be specific conditions in which it would be just and equitable.

He added that the Committee was running out of time, and that the intention was withdrawal of the Bill to enable the DPW produce a draft Bill that could be tabled for public comment .He insisted that the expropriation would not be about white genocide or preserving property or unequal property genocide. He urged that the rejection/withdrawal process move quickly.

Mr F Adams (ANC) proposed that the PC accept the proposal of the Chairperson. He also proposed that the report handed out to Members be withdrawn, because there was unanimous acceptance that there would be withdrawal, and not outright rejection.

Mr Filtane stated that he was happy the Bill was being rejected, since the UDM had not initially supported it.

Mr Figg asked whether there were plans to discourage land grabs and land invasionsd, with all that was happening around expropriation.

Mr Ryder said that the wording of a new Expropriation Bill should take into account the CRC report and an amended constitution. The PC needed to start again, but the new start could happen only after the process had been completed, and the matter may be for the Sixth Parliament.

Ms Madlopha proposed that the report be amended with the recommendation of section 203 (3) (c) of the rules.

The Chairperson remarked that at his instruction, the staff had worked on the report. This was upon realising that the Committee could not sit with the Bill forever, and that it was necessary to withdraw it. Joint rules 208, 203 and 205, 206, 207 were the withdrawal rules guiding the Committee. The report reads that the Assembly rejects the Expropriation Bill. The other parts of the report provided the history of the Bill and observations. The rules prescribed use of the word “rejection.” The rules also allowed the Minister to come back with a revised Bill which had more clarity.

He said the President had stated that the amendment of the constitution should be in light with the stability of the country, and that everyone must be protected. The report that goes to the Speaker would be informed by Committee Members’ input. The Minister would wait for the ad hoc committee to report and then deal with it.

The Chairperson then read out the resolution of the Committee to the Members. It provided as follows:

 ‘In accordance with joint rule 208(2), joint rule 203 3(c), joint rule.205, joint rule 206, joint rule 207 the Committee report a recommendation that the Assembly rejects the Expropriation Bill.’

Mr Figg said that the DA reserved its rights to support or reject the report.

Mr Cronin asked whether the resolution could read that the Bill would be reintroduced at a later stage.

The Chairperson advised that the option to reintroduce the Bill was covered by joint rule 208, which allowed the Bill to be reintroduced at a later date.

Mr Adams asked the legal advisor to advise on the legality of the rejection. Since the expropriation Bill was a Section 76 Bill, the Bill may still have to go to the National Council of Provinces (NCOP). He added that in the resolution, the Members could not include that the Bill would be reintroduced at a later stage since the Bill may have be reintroduced by the Sixth Parliament, and the Committee could not direct the Sixth Parliament on what it would do. The duty of the Committee was to say it rejected the Bill and send the report to the Speaker requesting her to withdraw the Bill from the Assembly.

Ms Phumelele Ngema, Parliamentary legal adviser, responded that Parliament was a creature of statute, and the process was being done in accordance with Sec 79 of the constitution, since it was a remitted Bill coming from the President. It was also a Sec 76 Bill, which had to get the consideration of the two Houses. The manner the resolution had been crafted indicated that through the application of the law and rules of Parliament, the process would be followed as outlined. The resolution as crafted referred to joint rule 208 (2). The reference to joint rules ensured validity and legality of the rules, and addressed everything. She added that was an instruction that applied to both Houses – the National Assembly and the NCOP -- and must be complied with by both Houses.

The Chairperson, having confirmed the legality of the process, advised that the minutes be confirmed so as to confirm that the report had been tabled the way it was. The Committee Secretary thereafter read out the minutes.
 
Ms Madlopa proposed their adoption, and Ms Adams seconded.

The Chairperson confirmed that the report would thereafter be presented to the Speaker.

The meeting was adjourned.

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