The Committee had requested an extension to complete its work on the review of section 25 of the Constitution to provide for expropriation without compensation. A letter had been drafted and sent to the Speaker’s office requesting the extension. No reply from the Speaker had yet been received.
The Committee spent a great deal of time debating the agenda. Some members felt it would be premature to consider the draft report on the public consultation process thus far because a decision had yet to be taken to determine whether further oral submission would be received. Other members said no further oral submissions should be received. Many members had not received the draft report which summarised the public consultation process thus far. Other members expressed frustration at the fact that they could not access the written submissions. Some members said it would be impossible for the Committee Members to properly consider each written submission in the time period given. It was stressed that each member is under a legal duty to apply their mind to the written submissions.
The Chairperson said the written submissions were archived and processed to make the consideration of the written submissions more efficient for members. Some members were not persuaded by this response and said that it would not be possible to properly consider the written submissions within the timeline given.
A service provider was procured to summarise the thousands of written submission received. The service was supposed to give its presentation in relation to this but was not able to do so. There was confusion as to the name of the service provider. The presenters were also unable to properly state their names and their job titles to the Committee.
Members googled the name of the service provider which appeared to be a labour broker. Members said any report compiled by the service provider lacked credibility and many refused to hear the presentation. All members expressed extreme frustration with the presenters. Some members said it was unacceptable for someone to come to Parliament with such a poor presentation. Other members wanted to know the terms of reference of the service providers appointment which the presenters could not provide. One member said she would be investigating who appointed the service provider and said the appointment of the service provider could amount to a violation of the Public Finance Management Act.
The Members adjourned to determine whether to continue to hear the presentation or not. A decision was made that the presenters would not give their presentation.
A list of 120 names was circulated of people who had made written submissions and who wished to make further oral submissions. Some members raised concerns that many names did not appear on the list. Other members suggested that no further submissions should be received. All that is required is that the Committee act reasonably to facilitate public consultation. There is no obligation to consider every single person who makes a further oral submission. One member suggested only those people who represent a constituency be allowed to make further oral submissions. Another member also suggested that people who had already oral submissions in Parliament be removed from the list. Both of those suggestions appeared to be accepted by the Committee.
A parliamentary official gave a presentation on the draft report into the public hearings conducted in the various provinces. A number of themes emerged from those hearings. Many people supported expropriation without compensation and many people opposed it. Suggestions were made that the Committee would have to consider the impact of amending section 25 of the Constitution on South Africa’s international law obligations. Article 17 of the United Nations Universal Declaration on Human Rights was specially mentioned. Many people said lack of access to land facilitated the establishment of informal settlements and unlawful land occupations. Many people live in rural areas and work in urban areas and have to use most of their money commuting to work. This is a consideration which should be taken into account by the Committee. Spatial injustice is not limited to rural areas alone but is also in urban areas.
Members said the report was well written overall but a few concerns were raised. Members took issue with the use of the word “overwhelming support” and what that term meant. One member said some of the statements in the draft report and presentation were inflammatory and should be removed. Some members raised minor concerns regarding grammatical errors and typos in the report. One member asked if international law could override the Constitution and specifically the duty on the State to facilitate access to land and land redistribution. One member also said the report should not use the word “chief” and “traditional leader” interchangeably as they mean different things. The report should also include an abbreviation page which it currently lacks because the report will later become a public document. One member said it may be necessary for the Committee to make a few additions to the report at a later stage before it is deliberated upon and presented in the National Assembly.
The Chairperson said the Committee had resolved to make a request for an extension on its deadline to report back to the House. The Committee was currently in the process of preparing a letter requesting that extension. No feedback had yet been received. This is because the Speaker of Parliament has not received that letter. The letter requesting the extension had since been sent to her office.
The IT process to capture all the written submissions is currently ongoing. The IBhumba (*spelling not verified) system is being used to capture all of the submissions on the review of section 25. There are thousands of papers that need to be digitised and indexed. This includes the submissions which had been received by email. It is hoped that most of this process would be completed within the next two to three weeks.
Consideration of Agenda
Mr S Swart (ACDP) said an update on the summary of the public submissions on section 25 should be provided. The service provider should provide an indication or guarantee that it would be able to report back to the Committee in around two to three weeks’ time. Before the Committee can consider the way forward, it is necessary to examine the work which the service provider has conducted thus far. It would be premature to discuss the consideration of the draft reports – especially the oral submissions – because the Committee has not yet decided on whether it will receive more oral submissions at this point in time. Some people who had made written submissions also requested an opportunity to make oral submissions. Whether those people will be afforded an opportunity to make oral submissions as well must also be discussed and considered. The Committee members also need to personally consider the written submissions. There is a legal requirement on each member of the Committee to apply their mind to the written submissions. He had reservations about adopting the agenda in its draft form, until progress on the completion of those draft reports had been provided.
Mr M Filtane (UDM) said – in his understanding – the Committee had earlier resolved not to receive any further oral submissions.
Mr V Smith (ANC) said he agreed with the sentiments of Mr Swart. Consideration of agenda items two and three would be premature at this stage because the Committee has not received the draft reports from the service provider. If the reports are complete, then the presenters should present those reports. At that point consideration could then be given as to whether further oral submissions would be received at a later date.
The Chairperson replied to Mr Filtane. The Committee had agreed that because of the delays of the service provider in providing the reports, it was necessary to give the service provider the benefit of the doubt. There may be certain people that might have requested an opportunity to make oral submissions. Those requests may have been made when the Committee was not at full capacity during the process when the Committee was considering the oral submissions. 42 people had made oral submissions. The Committee had resolved to later consider those oral submissions to make a final conclusion as to whether any further oral submission would be received. The list provided by the service provider referred to around 120 names. The service provider had compiled a report on that basis. That report had been circulated by email to Members the previous night.
The Chairperson said Mr Swart was referring to a larger final report. Only once all the different reports had been considered, the Committee would then collect all those reports and compile them into one single report. That final report would be sent for processing to be adopted by the National Assembly. The Committee would not send three different reports to the National Assembly and would only send the final report.
Dr A Lotriet (DA) said the Committee had received an undertaken that it would be given access to the storehouse where all the documents are stored. The Committee should discuss how long it would take to consider all of those documents.
The Chairperson replied that the best way of the Committee members to consider the submissions was for those submissions to be captured in an electronic format which would allow the Committee members to consider each submission. The IT department is currently in the process of archiving those documents in the government archive system. A letter had been sent to the Speaker requesting extra support to ensure that process runs smoothly. The service provider’s report does go through each submission.
Dr Lotriet asked a point of clarity. The Committee would not be discussing a specific timeline for the Committee members to individually consider the submissions? Would the Committee determine a timeline in which all the submissions would be digitally captured?
The Chairperson said the Committee made a resolution on that matter last week. The Committee resolved that Members may want to make arrangements to personally consider each submission before the submissions are digitally processed. Most of the submissions are digitised but some are in paper form. The Committee should set a timeline for the digital process to be completed. A credible record would be created documenting all the submissions which had been received.
Adv G Breytenbach (DA) said she had received no documentation on the submissions. She had also been offered no access to those submissions. She had made clear in the past that she wants to consider all the submissions. She had received no access – whether electronic or otherwise. It is not correct to then say that Members had already received access to those submissions. Other members had also received no access to those submissions.
Ms D Carter (COPE) said she had also received no access to any of the submissions.
The Chairperson responded that the Committee had resolved the IT and documentation unit would work on establishing access to the documentation which both Adv Breytenbach and Ms Carter had requested. That process would take some time. There are thousands of documents which need to be processed. Those documents are both in hard form and some are digitised. Once the archiving and digitising process had been completed then Members could consult that record to consider each submission. It would not be feasible or efficient to photocopy each submission individually. The Committee had previously resolved to archive each submission and the Committee members could then consider the submissions according to what had been archived.
Ms Carter said USB’s – containing all the submissions – had not been made available. It was incorrect for the Chairperson to say those USB’s had been made available. Video recordings of the public hearings in the Provinces had also not been made available. Those recordings are also not available on the Parliamentary channel. The external service provider appears to only be considering submissions received by email. This could create issues as physical submissions would not be considered by the external service provider. For Parliament and the service provider to digitise the submissions – according to two different processes – could create a number of complications. The service provider should rather deal with all the submissions.
Adv Breytenbach said creating a record of the submissions is an enormous task. Staff in the Committee are been overworked. A Parliament employee had recently committed suicide in the parliamentary precinct. This should be kept in mind. The Committee Staff should not be placed under unreasonable pressure to meet deadlines. The Constitution requires each member of the Committee to apply their mind to the submissions. This requires each member of the Committee to individually read each submission made. Reading the report compiled by the service provider may not meet constitutional muster. The Constitution expressly requires each Member to properly apply their mind to the submissions. The Members must receive physical access to the submissions made and consider those submissions. Considering a summary of the submissions made by an external service provider may not meet that constitutional standard.
Mr Swart said the Committee had requested that the Committee be properly resourced. His comments appeared to agree with those made by Adv Breytenbach. It is important to ensure the Committee Staff are not overburdened or placed under unreasonable pressure. A request should be made for more resources to ensure staff are not overburdened. Staff must be properly assisted to ensure the Committee can fulfil its constitutional obligations. The physical hard copies should also be considered by the Committee members.
Mr Smith said Adv Breytenbach was incorrect in saying the Committee members had to individually consider each submission to satisfy the requirements of the Constitution. Adv Breytenbach was correct in saying that each member of the Committee must consider the submissions. The documentation is already available and much of those documents are in the public record. Members should be given keys or access to the documentation to individually consider those documents. Nothing prevents Committee Members from considering the physical submissions at the present time. The Constitution only requires sufficient consultation. It does not require the Committee to listen to every person who wants to make a submission. A timeframe should be set for members to consider the oral submissions.
Mr M Maila (ANC) agreed with Mr Smith. Members should have physical access to the documents. If members have access to the documents, that would not frustrate the process of archiving those documents. A timeframe should be set for Members to consider the documents. Each Committee Member has a right and duty to consider those documents. Three weeks should be a sufficient time to consider those documents. While members are considering those submissions, Parliament could also archive those documents.
Ms M Mothapo (ANC) said she agreed with Mr Smith and Mr Mailia. It is not the first time the Constitutional review Committee has received such an enormous amount of public submissions. When the initial request for public submissions was made, a large amount of written submissions were received. The Hate Crimes Bill received more than 75 000 public submissions. When a Committee facilitates public consultation, that Committee would not invite every single person who made a submission an opportunity to make oral submissions. Sufficient consultation with the public is all that is required. The Committee should hear the presentation of the service provider.
Mr Filtane said the Committee was wasting time on this issue. The Committee should proceed with its business for the day as outlined in the agenda. Other issues of importance can be considered after the service provider had made its presentation.
Ms T Mokwele (EFF, NorthWest) agreed with Mr Filtane. The Committee should continue with the items outlined on the agenda.
The Chairperson said it was important to resolve the issue of how Committee members would receive access to the public submissions. He agreed the Committee should proceed with the business for the day as outlined in the agenda. The issue of access to the submissions would be determined at a later date. It is however important to resolve this issue so that it can be placed on the programme and so that appropriate arrangements can be made.
The Chairperson moved to adopt the agenda. He said the agenda should be amended as follows. First, the service provider would give their presentations. Second, the Committee would consider the reports on the public hearings in the Provinces.
The Committee unanimously agreed to adopt the revised agenda as proposed by the Chairperson.
Presentation by Service Provider
The presenter said his company had been requested to make a presentation before Parliament on the public submissions on the proposed review of section 25 of the Constitution, as conducted in the various Provinces. The presentation would therefore focus mainly on the submission received in the various Provinces.
Mr Swart interrupted. What is the name of the company and the names of the presenters?
The presenter apologised. The name of the service provider is isiLumko. His name is Mr Shay Allie, operations manager, isiLumko. The name of his colleague is Mara.
Mr Filtane raised a point of order and expressed extreme dissatisfaction with the presentation. This was one of the clumsiest introductions he had ever seen in his time as a Member of Parliament. The presentation is unacceptably poor. This could impact on the credibility of the entire review process. It is not difficult for someone to simply introduce themselves and the names of their company. It is unacceptable for someone to come to Parliament so completely unprepared.
The Chairperson said the presenters should be given some leeway. It is their first time in Parliament and they are not familiar with parliamentary procedure and protocol. He requested the Committee Members to give the presenters the benefit of the doubt.
Mr M Chabangu (EFF, Free State) said the presenters must use the microphone properly to ensure their presentation becomes part of the parliamentary record.
Mr Mokwele asked the presenters to state their positions in the company.
Mr L Mpumlwana (ANC) asked the presenters to also say who the directors of the company are.
The Chairperson expressed frustration with Mr Mpumlwana’s question. The Committee is here to get the report of the service provider.
Ms Carter said the Committee was wasting time. Members should just google the name of the company if they want further information.
Ms Mokwele disagreed. She said the presenters must tell the Committee their positions in the company.
The Chairperson disallowed Ms Mowkele’s question. The presenters would give their presentation. Once the presentation was complete then the Committee could ask more questions if they wish.
Mr Allie said the isiLumko had been requested to give a report on the public submissions on the proposed review of section 25 of the Constitution. Parliament had sent out numerous newspaper advertisements which invited the public to make public submissions on the review process. The public had until 15 June 2018 to make those submissions.
The report is intended to provide a summary of the electronic and hard copy submissions which were received. A few themes emerged from the various submissions. Each theme had been grouped according to different responses. Those responses had been dividing into categories: those who support the amendment of section 25 of the Constitution and those who oppose the amendment of section 25 of the Constitution.
Mara repeated what was said by Mr Allie. The presentation had divided the submissions into the category of those who support or oppose the amendment of section 25 respectively.
The Chairperson interrupted and expressed frustration with the presenters. He requested the presenters to speak louder and make their presentation with confidence. The presentation was their own work and they should take pride in it.
Mara said the following themes had emerged:
The first theme was the custodianship of land. Many submissions had spoken about the need to use land to adequately and effectively prevent a range of socio-economic impacts.
The second theme was the reference to land reform in countries such as Venezuela and Zimbabwe, countries where the land reform process had failed.
The third theme was security of tenure. This refers to the legal entitlements of the current owners of land to keep possession of their land. Submissions had referred to security of tenure as an aspect of the inalienable right to private property ownership.
The fourth theme was the potential for corruption and land grabs. People in positions of power could exploit the process of land reform to facilitate corruption and other criminal acts.
The fifth theme was electioneering. Some submissions said the current discussion around the review of section 25 of the Constitution is a tactic used by political parties to garner votes for the 2019 election.
The sixth theme was the issue of bonded land. Some submissions said that a large amount of land is subject to mortgages and bonds. Expropriation without compensation could create issues where the land is subject to a bond or mortgage.
The Committee Members collectively expressed frustration. It was not clear which document the presenter was referring to.
Mr Mpumlwana said the presenters should tell the Committee which document and which page of that document they are currently presenting on.
Ms Mokwele said this confusion was the exact reason why the presenters should have told the Committee their job title and position. The Committee has no idea whether they are talking to an administrator, a chief executive officer or some other person. The presenters appear to be data capturers and are not properly prepared to give their presentation. What the presenters are saying is different from what appears in the documents which have been circulated amongst the Committee members. The presentation has been unhelpful thus far. The presenters are not equipped to give the presentation or explain its contents to the Members in a meaningful manner. It would be better for the Members to just go over the document in their own time and for the presentation to end.
The Chairperson said the presenters are talking to the presentation which is before them. He requested the presenters to guide the Committee as to which page and which document they are currently talking to.
Mara reiterated that she had spoken to six different themes. Each theme and submission had been divided into whether the submission supported or opposed the proposed amendment to section 25 of the Constitution. The theme of custodianship of land appears on page 5. The theme questioned the ability of the recipients of land to adequately use the land once it was redistributed.
A number of Committee members raised their hands whilst the presentation was ongoing. The Chairperson stopped the presentation to hear the points which the Committee wished to raise.
Adv Breytenbach said the presenters are both very young and in an intimidating environment, presenting in front of a large amount of people. She sympathised with their position as it is not an easy task to give a presentation on the report. However, is it not clear who isiLumko is. She cannot find the name of the company on google. She does not know the surnames or job titles of the presenters. She does not know what the company actually does. The presenters must answer these questions, so the Committee can engage with the presenters in a meaningful way. The presentation should not proceed until those questions have been answered. She cannot apply her mind to the work done by the service provider if she knows nothing about the company which has compiled the report.
Ms Mokwele said the presentation was clumsy. It is not clear if the poor quality of the presentation is also a reflection on the quality of the overall work of the service provider. If so, that is a cause for concern. Google searches appear to indicate that isiLumko is a labour brokering company. isiLumko has been contracted by Parliament to undertake the task of considering the review of section 25 of the Constitution which is a vital matter. The presentation appears to indicate the company has a particular ideology or agenda. The presenters should therefore give the name of the directors of the company so that the Committee can determine if isiLumko does have an agenda of some kind.
Dr Lotriet said she had previously raised the issue of the terms of reference. The presenters should provide the terms of reference of their report. The Committee cannot properly analyse the report if they do not know the terms of reference of their report.
Mr Filtane said the service provider was tasked to consider hundreds of thousands of submissions. The Committee is expected to fully apply its mind on the way forward which is a pivotal moment in South African history. The presentation is making it impossible for the Committee to properly apply its mind to this matter. There are two different documents which the presenters are referring to and the presentation has simply created confusion. He proposed the Committee adjourn for 5-10 minutes so that the presenters can give a proper presentation.
Dr C Mulder (FF+) said he had not received a copy of the report. The Committee should be fair to the presenters. It is not the fault of the presenters that Parliament is experiencing technical difficulties. There is uncertainty as to who appointed the service provider.
Mr Mpumlwana said he sympathised with the position of the presenters. However, there is no reason why the presenters could not give their full names. It is also not clear why they could not give the name of the company and what their company actually does. Google searches show that there are three different companies called isiLumko. The Committee has no idea what the service provider actually does or what the surnames of the presenters are or their positions in the company. Why is it difficult for the presenters to answer these questions?
Mr Swart suggested a five-minute adjournment. Copies of the correct documents are currently been made. Parliamentary procurement processes had resulted in the appointment of the service provider. The Committee played no role in their appointment. Issues around the quality and appointment of the service provider can be taken up at a later date. The project brief and terms of reference are in the report. It is the fault of Parliament and not the presenters that the presenters cannot properly present their presentation.
Mr Mailia agreed with Mr Swart. If the members receive a copy of the presentation, then the presenters can properly engage with the presentation. The Committee must be fair to the presenters.
Mr Chabangu said the presentation could not be given properly and considered by the Committee because the final report is not yet complete. He suggested the Committee go to the storeroom to consider the submissions individually.
Adv Breytenbach said a google search shows that isiLumko is a labour broker or recruiting office. isiLumko is not in the business of producing reports. The report lacks credibility. Who in Parliament appointed the service provider to undertake the task of producing the report? The appointment of isiLumko could amount to a breach of the Public Finance Management Act (PFMA) which would be very serious if found to be true. Until she is satisfied as to those issues she is not prepared to listen to the presentation or the report produced. The report lacks any credibility. The whole procedure is entirely suspect. She is not prepared to continue any further until her concerns are properly dealt with.
Ms Mokwele asked how the Committee can be expected to adopt this report. The company lacks credibility. The report therefore also lacks credibility. Why is it so difficult for the presenters to answer questions such as who is the company and what their business is? She suggested the presenters cease their presentation and then return in seven days’ time to give a proper presentation.
Ms Carter said in the first meeting Members had questioned this process. Members who questioned the procurement process were told they had no authority to become involved in that procurement process. Whoever took the decision to appoint isiLumko had not consulted with the Committee at all. The failure to consult with the Committee has now come back to bite the Committee.
Mr F Beukman (ANC) said this issue should be discussed further the following Tuesday or Wednesday. The presentation should continue but the procedural issues raised by Members regarding the procurement process leading to the appointment of isiLumko should be discussed further at a later time.
The Chairperson said his fundamental difficulty was that the Committee members had not yet read the report prepared. The Committee had only received the report last night. Members cannot make a final judgment on the quality of the report at this point in time. The presenter’s role is only to assist the Committee in highlighting certain aspects of the report. The question as to who appointed the company – and other issues of that nature – can be discussed once the report has been properly considered by the Committee. If the members want to investigate the correctness of the procurement process, then there are processes which the Members can use to raise those complaints. He had personally read the report and did not find anything untoward in the report. The presenters should – in his view – continue with their presentation. If members have issues around procurement, then they should approach their respective chief whips who can raise the issue with the Speaker. He is not involved in the procurement process and cannot assist in so far as matters of procurement and matters of that nature are concerned.
Mr Mpumlwana said the report which the Chairperson had read is different from the report which is currently before the Committee. It is not clear why the presenters cannot fully and properly introduce themselves to ensure that everyone is on the same page.
Dr Lotriet said the presentation should not proceed. The Committee is supposed to meaningfully engage with the presentation. However, the Committee cannot engage with the presentation if they do not know what the terms of reference for the company are. If the Committee does not know the terms of reference, then how can the Committee properly interact with the report and presentation?
Mr N Paulsen (EFF) said the report is poorly drafted and the presentation is poorly presented. The report opens with the reference to the “socio-economic impact” of the review of section 25 of the Constitution. The report looks like propaganda. Who is the company and what are their interests? The only isiLumko he can find is a labour broker. The report should not be tabled, and the presentation should not proceed further. Only once the Committee has background as to who isiLumko is and how the data was compiled, and the report compiled the Committee should not proceed with the report in its current form. The report appears to be a form of propaganda against amending section 25 of the Constitution.
Mr Filtane said the general tone of the Committee is one of unhappiness and extreme dissatisfaction with the company. The Committee does not accept the credibility of the report of the company who compiled it. The Committee should adjourn for ten minutes so that the presenters can sort themselves out. It is unacceptable for a presenter to come to Parliament and not be able to properly introduce themselves or the company which they represent.
Mr Swart said Mr Paulsen’s comment that the report is propaganda was unfair. It is not fair to say the report is propaganda simply because it does not suit the agenda of the EFF. From the beginning of the process 65% of people surveyed indicated they are opposed to the amendment of section 25 of the Constitution.
Mr Paulsen and Mr Mokwele interrupted Mr Swart. They took offence at his comment that the EFF had an agenda and that their comment that the report was propaganda was unfair. [Both Mr Paulsen and Ms Mowkele shouted at Mr Swart].
Mr Swart requested the Chairperson to provide him with protection.
Ms Mathapo said the meeting was degenerating. The Committee is now debating a completely different issue and is wasting time.
Mr Paulsen persisted in shouting at Mr Swart.
The Chairperson called the meeting to order. All members must respect the authority of the Chairperson and Parliament. They must conduct themselves in a proper manner.
Mr Swart suggested the meeting adjourn for a few minutes so that a proper consideration can be made as to whether to continue with the report. Procurement issues cannot be rejected out of hand.
Mr Mulder said the Committee Members are setting a poor example in front of the public. Submissions had been received and no person can change the substantive content of those submissions at this stage. The Committee needs a report which properly indicates the content of the submissions received. The Committee should adjourn to sort out the issues raised and whether to proceed. The review process may be subject to legal proceedings in the future. It would be a mistake to push the process through now, which may impact of the legal credibility of the entire review process if the issued raised are not properly considered by the Committee.
Mr E Buthelezi (IFP) said the discussion was deteriorating. The Committee must take a final decision to either listen to the presentation or not. The manner in which Committee Members are conducting themselves is embarrassing.
Mr Smith the Members had made a reasonable request. The meeting should be an adjourned for the Committee to discuss the concerns they had raised amongst themselves. Once the Committee has made a decision after the adjournment then the Committee can take a final decision as to whether to proceed with the meeting with or not. The Committee had spent the entire day just discussing the agenda items.
Ms Mokwele said the Committee must be honest and forthright. The Committee should not try to act smart just because members of the public are present. The Committee must be apologetic about who they are or how they behave. It is not necessary to apologise because the presentation itself is unacceptable. The current process is not a referendum which deals only with numbers. If numbers were the sole concern, then that could have been done during the public process. The question of amending section 25 of the Constitution is not a referendum. Members had received the report the night before and even a cursory examination of the report shows that the report is full of loopholes and errors. The presenters are wholly unprepared to the extent they could not even tell the Committee their names or job title. The service provider is also a labour broker. There is no need for an adjournment. A decision should be made now. To allow the presentation to continue would amount to condoning the report and the report is completely unacceptable.
Mr Mpumlwana said there should be an adjournment. During the adjournment copies of the correct presentation should be made and circulated amongst the Committee so the presentation can continue.
Dr Mulder said he agreed with the proposal by Mr Smith. There should be adjournment to decide whether the meeting should continue or not.
Mr Buthelezi agreed and said there should be adjournment to decide whether the presentation should continue to not.
The Chairperson said the Committee only has to make observations on the quality of the report itself. The issue of improper procurement is a separate issue. However, an adjournment should be called to sort out the issues raised.
The meeting was adjourned for a period of time.
After the adjournment the Chairperson said the Committee had agreed on the following:
That the service provider was initially appointed to assist in handling the submissions received on the review of section 25 of the Constitution.
Parliament must take ownership of the process and a report must be presented regarding the manner in which the service provider was appointed. A report should be given to the Committee at a later date.
The Chairperson excused the service provider. The service provider therefore did not complete its presentation.
Reconsideration of Agenda
The Chairperson said the agenda should be reconsidered. Three items remained on the agenda. The report on the oral presentations would not be considered. The Chairperson proposed the Committee consider whether 120 names on the list of people who had requested an opportunity to make oral submissions on their written submissions.
The Committee Members confirmed they had the list of the 120 names.
Adv Breytenbach asked what the list refers to. Is it a list of all the people who wish to make oral presentations? Would it be supplemented with more names later?
The Chairperson responded the list is the final list of names of people who could be identified who made written submissions and had requested to make oral submissions as well.
Mr N Koornhof (ANC) said the Committee had already received oral submissions from 42 of the people and organisations identified in the list. Those 42 names should be subtracted from the list of 120 names. He proposed the Committee should only invite people who represent a constituency and not individuals. Organisations which represent a constituency can be determined by looking at the email address. Thus far, he has calculated around 60 people represent constituencies. If his proposal is adopted, then around 20 more people could be added to that list of 60 people representing constituencies.
Mr Swart said the circulated list has a number of problems. He had received an email from an attorney called Mr Le Roux. Mr Le Roux had made a written submission and requested an opportunity to make an oral submission in his written submission. How can the Committee deal with this issue as Mr Le Roux’s name is not on the circulated list? Another person called Mr Peter Meakin, Chairperson, of the International Institute of Land Value Taxation had made written submissions and had requested an opportunity to make oral submissions. Both Mr Le Roux and Mr Meakin do not appear on the list of 120 names. The only solution to this issue is to request that the names of both Mr Le Roux and Mr Meakin be added to the list of people who had requested to make oral submissions. There is evidence that both had made written submissions. Both also represent a particular constituency. He agreed with Mr Koornhof that only those people who represent a constituency should make further oral submissions. It appears however that the list of 120 names does not properly include people – who do represent constituencies – and who should be afforded an opportunity to make oral submissions on the basis that they did make written submissions as well.
Ms Carter agreed with what Mr Swart had said. There are at least 27 names – which she personally knows of – which have not been included in the list and which should be included in the list on the basis those 27 people had made written submissions and had requested to make further oral submissions. It is not always clear whether a person represents a constituency or not simply by looking at their email address. Parliament’s website is clear. Every citizen has a right to request to make oral representations to Parliament. There is nothing which gives the Committee the power to refuse a request to make submissions. The only power that a Committee has is to regulate the time frame in which to receive submissions. It would be a big mistake to now limit the ability of people to make submissions to Parliament. Parliament’s website clearly sets out members of Parliament are required to do, in so far as public consultation is concerned. The only limitation is that that right is limited to citizens. It would be a mistake for the Committee to limit the right to people to make oral submissions to the Committee at this stage of the review process.
Ms Mokwele asked if the Committee members have a record of who has made written submissions. Who is entitled to have a record of who made written submissions? If necessary, members of the Committee should speak on behalf of their respective constituencies. Personally, she knows of 100 people who have made written submissions but do not appear on the list. A decision should be made as to who can make oral submissions or not. Committee Members cannot simply say they know of people who have made written submissions – which do not appear on the list – without providing evidence that those people have made written submissions.
Mr Mulder said the purpose of a public participation process is to receive input and information from the public. The Committee has gone out of its way to facilitate public participation through public hearings in the Provinces and other measures. Some people may have missed out on that process and should be allowed to make oral submissions. However, the process should not be completely reopened to allow for every single person to wants to make a submission who wishes to do so. All the Committee has are names and email addresses. That in itself will not properly show whether the person who made the submission represents a constituency or not. The current discussion is also not taking the matter forward as how to resolve this issue.
Mr Mpumlwana said he agreed with the suggestion of Mr Koornhof that if someone represents a certain organisation or constituency they should be allowed to make oral submissions. However, most names on the list are individuals. If further oral submissions are to be presented, then the Committee should ensure that those people who make submissions are representative of a group of people. He agreed with Mr Mulder. The Committee has done a lot to facilitate public consultation. The views of many different people and groups have been listened to and considered. Personally, he believes further submissions from individuals should not be received.
Mr Filtane said the current process is a legal one. The South African legal system often uses the standard of reasonableness or the reasonable person. The question is whether what the Committee has done – to facilitate public consultation – is reasonable in the circumstances. Public hearings had been conducted in the provinces. Many people had arrived and wanted to personally make submissions. Not all of those people had the opportunity – due to time constraints – to make oral submissions. What is the difference between those people and the people who gave written submissions and now want to make further oral submissions? A reasonable person would find that a substantial number – which is at least 50% - of people have been afforded an opportunity to make presentations. The Committee has acted reasonably. The Committee, as far as he is aware, has made no guarantee to provide every single person who makes written submissions with a right to an oral hearing. If the people in the provinces did not all personally receive an oral hearing, then why should the people who made written submissions be afforded that right? The Committee is only required to act reasonably. The Committee has acted reasonably and met the legal standard which they are obliged to act in accordance with. To give people who made written submissions an additional right to an oral hearing – and to deny the people in the provinces that right – could mean that some people would say that the Committee has discriminated against the people who personally attended the public hearings in the provinces.
The Chairperson said the Committee has to consider the point raised by Adv Breytenbach that the Committee should go through the list and determine which names on the list represent a constituency. If necessary, the Committee could then determine whether further oral submissions given by some of the names of the list or not. Ms Carter was correct in saying the current process is subject to time limitations. Members should first complete the process of going through the list and then determine after that process, whether to have further oral submissions or not.
Mr Swart said a better approach would be for each member of the Committee to receive the written submission of each name on the list. Once the written submissions were received, the Committee could then determine which people should be afforded an opportunity to make additional oral submissions on their written submissions. That process could be concluded by the following week. It is true the Committee has limited time. However, the Committee would be able to better determine whether the written submissions represent a constituency or not as opposed to reading the email address of each name on the list. Responding to Mr Mokwele, he has evidence of people who had made written submission and now want to make oral submissions. The advertisement had created a legal right in the form of a legitimate expectation that every person who made written submission would be afforded a right to make oral submissions as well. It is true, as said by Mr Filtane, that there is a reasonableness element. However, the advertisement had created a legitimate expectation within the meaning of reasonableness. Is the Chair suggesting that each member individually consider the written submissions of the 120 names on the list by the following week? It would not be possible to consider all of those written submissions in one week.
The Chairperson responded that each Member may have their own proof as to whether each person – who has requested an oral hearing – has made a written submission or not. Only once the Members had gone through the written submissions could each member of the Committee be satisfied that the people on the list had in fact made written submissions. Ms Mokwele had raised a valid point. What would happen if a person had requested an oral hearing – based on their written submissions – but it was later found that their written submissions had not been received or had not been sent in the first place? The best process would be for the Committee Members to go through the individual submissions.
Mr Swart responded that time is an issue. There is an urgency to only consider the 120 written submissions. If people want to add to their written submission through an oral hearing, then they should be allowed to do so. The Committee should examine each written submission of the 120 names to determine whether those people should be allowed to make an oral submission as well.
The Chairperson asked if Mr Swart was suggesting the Committee only look at the oral submissions of the 120 people on the list.
Mr Swart replied that was correct. The other 500 000 submissions could not be properly considered within the two-three week period.
The Chairperson said Mr Swart had made a proposal. He asked the Committee to give comments on the proposal.
Ms Carter said she was concerned. Mr Swart had said the Committee should consider the written submissions within three weeks. Each member of the Committee is legally obligated to consider each written submission to fulfil the legal requirement that they apply their mind to each written submission. 450 000 written submissions had been received. If each Member considered each submission for one minute only, that equates to 450 000 minutes. That equates to 7 500 hours, which is 625 days at 12 hours per day. To say the Committee must consider the submissions within two days or two weeks is therefore physically impossible. The Committee should allow every person who wants to make an oral submission to do so. The process cannot be reopened at this stage. The Committee should contact each member on the list to determine whether they represent a constituency or not to make the current process more efficient.
Ms Mokwele said the Committee has to ensure that they have met the requirements demanded by public consultation and what is reasonable in the circumstances. The Committee needs to find a solution to this matter and it cannot listen to every person who wants to make a submission. All that is required is sufficient public participation which can occur by way of written or oral submissions. A decision should be made as to who on the list of 120 names should be given an opportunity to make an oral submission. The Committee cannot be flooded with submissions. An agreement should be reached on who – out of the list 120 names – will be afforded an opportunity to make further submissions. Those submissions can either be by way of written or oral submissions. This process cannot continue forever.
Mr Mpumlwana said the consensus of the Committee appeared to be that no further people should be added to the list. The Committee has done more than enough to facilitate public consultation. No further submissions, whether oral or otherwise, should be considered. The process of public consultation should be closed as the Committee has done enough to fulfil the requirement of facilitating public consultation.
Mr Koornhof said the only requirement is whether the Committee has acted reasonably in fulfilling public consultation. The 42 people/organisations on the list that have already made oral submissions should be removed from the list. The remaining people could then be contacted to determine whether they represent a constituency or not. If those people represent a constituency then they should be invited back. That would leave around 30 more people who would be invited to make further oral submissions. Those remaining oral submissions could be completed within the next two weeks.
Mr Smith said he agreed with Mr Koornhof. Those who had already made oral submissions should be removed from the list which would leave around 82 names. The question is whether it would be reasonable to use the 120 names as the benchmark. The Committee has facilitated thousands of submissions in the provinces. Thousands of written submissions had also been received. Oral submissions had also already been made before the Committee in Parliament. If only using the list of 120 names as a benchmark is insufficient, then people should convince the Committee why the current level of facilitation thus far has not met the requirements of adequate public consultation. The process cannot go on forever. If people are upset at the level of consultation, then they would be welcome to challenge the process in court.
Ms Carter said when the Committee visited the provinces it had asked for people’s contact details. If people made oral presentations in the provinces, then those people should also be taken off the list. She noted at least one person on the list who had already made oral submissions at provincial public hearings.
Mr Swart said he agreed with the approach of Ms Carter. People may have only made a single paragraph submission. The first issue would be to determine if there is enough weight to the submission which requires an additional oral submission. There are time constraints however which he acknowledges. Some people however had numerous requests to make oral submissions. At the same time there is the principle that each person must be treated fairly.
The Chairperson said the consensus of the Committee is as follows. The Committee would consider each name on the 120 person list. Each Member would examine to determine whether the written submission has sufficient substantial content to justify inviting that person back for an oral hearing. At the same time each person on the list would be examined to determine whether they represent a constituency or not. All of these factors would be considered to determine whether those people should be invited to make further oral submissions or not.
Mr Mpumlwana took issue with Chairperson’s view of what amounted to a consensus. In his view, the Chairperson had listened to what Mr Swart and Ms Carter had said and had concluded the views of those Members amounted to a consensus of the Committee. Mr Filtane had said that during the provincial hearings not everyone who attended was afforded an opportunity to personally make oral submissions because of time constraints. Why should people who have now made written submissions be afforded an extra right to make oral submissions simply because they had made written submissions? The essence of his point was that the Chairperson is incorrect in saying what the consensus of the Committee is. Consensus should be determined by a show of hands in the Committee.
Mr Filtane said the sole issue was considering the input of the public. The Committee is not duty bound to listen to what people have said simply because they have written their submissions down. The constitutional requirement is only that the Committee consider the submissions received. There may be a more efficient way of dealing with the application of people to make further oral submissions. Only if the Committee has given a written guarantee to consider further oral submissions should those people be invited back to make further oral submissions. The people on the list who want to make further oral submissions should be considered by the Committee. That does not necessarily mean however that simply because someone appears on the list that they should automatically be invited to make further oral submissions. It would be discriminatory to allow people who had made written submissions to be given an automatic right to make further oral submissions but to deny the same right to people who had requested to make oral submissions in the Provinces but had been denied that right because of time constraints. The Committee should not be discriminatory in its approach on this matter. In conclusion, Mr Filtane said he opposes further oral submissions unless the purpose of facilitating oral submissions is to meet the threshold of the requirement of reasonableness.
Mr Koornhof said he accepts the points raised by Mr Filtane. However, the problem is that the original public advertisement said that every person who made a written submission would be given a right to make a further oral submission. The same approach was not extended to those people who made presentations in the various provinces. This is the unfortunate difference between the people who made written submissions and those who were not afforded an opportunity to make oral presentations in the provinces, despite the people in the provinces being present and wanting to make oral submissions. There is sufficient consensus on the way forward. If 30 more people or organisations are allowed to make oral submissions no one will say the Committee has not met the requirement of adequately facilitating public consultation.
The Chairperson responded that Mr Koornhof was not entirely correct. The original advertisement had said anyone who made written submissions would be given an indication – not a right – as to whether they would be afforded an opportunity to make further oral submissions. 120 names are currently on the list. There might be people on that list who have already been considered in the sense they have already given oral submissions. It appears there is consensus that those people should not give more oral submissions. Even Mr Swart had said he would not add to the list, even though he has proof that people who made written submissions do not appear on the list in its current form. In his view, there is sufficient consensus on the way forward. The relative substance of each written submission should be considered to determine whether the person who made the submission should also be afforded a further opportunity to make oral submissions. The secretariat should be asked to look at the submissions and email the people on the list to verify whether they represent a constituency or not and whether they still want to make oral submissions or not.
Mr Swart said the public hearings could be completed in the following two weeks.
Mr Koornhof said any Committee Member who wanted to go and individually look at the written submissions could go and look at the submissions.
Mr Swart said it may take some people a bit longer to consider the written submissions than others.
Mr Mokwele said there is sufficient consensus. The people on the list should give oral submissions as determined by the Committee. During the first week of October logistical arrangements should be made for those hearings to occur.
The Chairperson agreed and said the appropriate logistical arrangements would be made during the first week of October. During the second week of October arrangements would be made for each Committee Member to be given keys to the storeroom to consider the written submissions to determine who would make further oral submissions.
Ms Carter reiterated each Member of the Committee is legally obliged to consider each written submission. Does the Chairperson expect each Committee Member to go through 90 000 submissions every day during that two-week period? That is an unreasonable expectation. If that is the expectation, then all Committee members must be part of the process. All Committee Members must then work 18 hours per day to ensure that every Member properly considers the written submissions.
The Chairperson responded that access would be provided. The documents would have to be archived and captured in a record to make the process manageable. He agreed with Ms Carter that it would be unreasonably onerous to expect each member of the Committee to consider 450 000 submissions individually. That is why he had suggested the submissions be digitally captured to make the process of reviewing each submission more efficient and manageable. Is Ms Carter suggesting the Committee abandon the process because the consideration of the submissions would be unmanageable?
Ms Carter said the Committee has a duty to work through all the submissions.
The Chairperson responded that the standard is that each Member of the Committee must be satisfied that they have adequately considered the public submissions. Committee Members could be satisfied – according to that standard – if they have attended the public hearings and feel sufficiently informed to make an informed submission on what the report contains, in so far as the public submissions are concerned. All that is required is that the Members feel adequately appraised of who is opposed and who is in favour of the proposed amendment of section 25 of the Constitution.
Ms Carter said the Chairperson was completely incorrect. The Chairperson appears to be treating this matter as a referendum where the only question is who favours – and who opposes – amending section 25 of the Constitution. The process of reviewing section 25 of the Constitution was not a mere referendum. The emphasis is not on the quantity, the emphasis is on the quality of the input. The Chairperson’s view, in effect, makes the public’s written submissions tantamount to a farce.
The Chairperson said that was Ms Carter’s view. The Members are not limited to applying their mind on any substantive matter.
Mr Mailia said he agreed with the suggestions of the Chairperson. A record should be kept of which Members considered the written submissions. A second report would not be drafted by the Committee members on the substance of the written submissions. There is no report which Members will provide showing they individually applied their minds to the written submissions. There should be a monitoring mechanism to determine which Members have considered the written submissions received.
Mr Swart said he would be individually considering the written submissions received. This is the essence of the requirement of applying the mind. Monitoring mechanisms can be put in place. The Committee as a whole must apply their minds to the submissions. There is an element of reasonableness and substantial compliance which should be considered, in so far as consideration of the submissions are concerned.
Presentation on Report on Provincial Public Hearings
The Chairperson said Dr Thulisile Ganyaza-Twalo, Content Advisor, Parliament, would provide a presentation setting out the contents of her report on the public hearings in the provinces.
Dr Ganyaza-Twalo said the presentation is a summary of what is contained in the report. The report should be read alongside the presentation as the actual report sets out the findings of the public hearings in greater detail.
Parliament had taken a resolution to review section 25 of the Constitution. The review process was undertaken to facilitate a process to potentially amend section 25 of the Constitution to allow the State to expropriate property without compensation. The review process also had to examine whether other constitutional amendments would be necessary to facilitate the ability of the State to expropriate property without compensation.
To lawfully engage in the process of reviewing section 25 of the Constitution – to facilitate a potential amendment – the Committee is required to facilitate a public consultation process to hear the views of all stakeholders on the matter. Stakeholders were afforded an opportunity to make presentations to the Committee – both in Parliament and in the Provinces. The Committee has been tasked with this responsibility of facilitating public consultation with all relevant stakeholders. The Committee is obliged to draft a report on the public consultation process which will later be presented to the National Assembly.
Both the National Assembly and the National Council of Provinces mandated the Joint Committee on Constitutional Review to facilitate the public consultation process. The Committee facilitated public hearings in all nine provinces from 26 June 2018 to 04 August 2018. The aim of the public hearings was to comply with the constitutional requirement of facilitating public consultation.
Prior to the public hearings in the provinces the Committee had taken other steps to facilitate public consultation with stakeholders. The Committee hosted a colloquium setting out the progress made in achieving the mandate of section 25 of the Constitution. The colloquium also discussed the limitations contained in section 25. Parliament had deployed a team to raise awareness amongst members of the public so that the public could participate meaningfully in the provincial public hearings. Statements had also been sent out to further raise awareness and members of the Committee gave interviews to various media houses as another way of raising awareness. Parliament took reasonable steps to raise awareness to ensure that the public were aware and sufficiently equipped to participate in the public hearings.
The guiding framework of the public hearings was that the hearings would start at 11:00 in the morning and end at 16:00 in the afternoon. However, most public hearings went over this time. The house rules were explained to ensure the public behaved appropriately and section 25 of the Constitution was also read out to members of the public at those hearings. 23 towns were visited during the hearings. That is 3.7 towns per province.
In all provinces and towns, the public demonstrated overwhelming support for the review of section 25 of the Constitution. Most cited that the primary reason for this is to address the injustices of the past and the dispossession of the land by the colonial and apartheid regimes. People at the public hearings said that black people still do not own land and also do not own productive land. The public also said need there is a need to facilitate access to land for previously disadvantaged people which is also necessary to ensure that the majority of the country can participate meaningfully in the economy.
People on land often lack security of tenure. Dispossession of land during the Colonial and Apartheid era also created a structural problem – which persists today – as many black people were pushed to the margins of society and the economy. White people dominated the productive sectors of the economy. Black also were most affected by land dispossession. As far back as 1652 the Colonial and Apartheid governments destroyed communities who had their identity tied to their land. This violated dignity. Dignity is associated with a respect for self and equal worth. Part of dignity is autonomy which includes the ability to live free from external authority or pressure. Page 90-92 of the report expands on this aspect in more detail.
Section 25(6) and (7) both act as mechanisms to advance land reform. Both provisions relate to redistribution, land reform and restitution. People said the pace of land reform has been too slow since 1994. The expectations of the people have not been met. People said the legacy of colonial and apartheid policy is part of the reason that land reform has been so slow. Other people said the current wording of section 25 – particular section 25(1)-(3) – make it next to impossible to expropriate land without compensation. People said that sections 25(1)-(3) require market value which makes it difficult to expropriate land for land reform purposes. The counter-argument was that section 25(3) only requires “just and equitable” compensation which means that compensation less than market value could be paid. Market value of property is not provided for in the Constitution. People said that market value is elevated above other factors contained in section 25(3). People said that only 24% of land has been redistributed since 1994 which falls short of the target of 30%.
Section 25(5) requires the state to take reasonable legislative and other measures to facilitate land reform and access to land on an equitable basis. Landless people argued African people only owned 4% of land and the majority of the land was owned by Coloureds, Indians and Whites. Landless people also said that the failure of the government to facilitate land reform contributes to the unlawful occupation land. Another theme was that the people said that the land was originally taken without compensation and often through violence. There was also opposition to negotiating prices for land redistribution. Other people said the failure of land reform is not due to the Constitution but because of a failure of government policy. A law of general application should be enacted which clearly sets out the ability of the State to expropriate for the purposes of redistribution. A view was also expressed that the High-Level Panel Report also needs to be considered which provides a useful starting point as to how facilitate land reform. Linked to this view was that expropriation legislation needs to be tested in court.
Section 25(6) refers to tenure reform. Section 25(6) requires the State to take measures to secure security of tenure for people who have insecurity of tenure as a result of past discriminatory laws and practices. People said there has been a failure to link land redistribution to urban needs. People live in rural areas and spend most of their money commuting to and from their places of work in urban areas. Informal settlements arise out of land dispossession.
Farm dwellers and people living on rural land and the former homelands under traditional leaders said they should not be seen as a single homogenous group but rather as different groups. Women and children on farms face particular dynamics of insecurity of tenure. Proponents of State Custodianship said this form of ownership would help address existing inequalities of land ownership. People said a failure to administer this process properly could result in further marginalisation of the poor. This occurred in the North West where people said state corruption had resulted in people not benefiting from mineral rights in terms of the state custodianship of mineral rights under the Mineral Resources and Petroleum Development Act (MPDRA). Another view was that people should have leaseholds on land according to the principle of state custodianship. Land could also be expropriated for the benefit of private individuals – and not the public interest – which could create new forms of land dispossession in the country. People said it was always clear whether traditional leaders are the custodians or owners of the land. People said that traditional leaders do not own communal land but rather hold the land in trust which must be used for the benefit of the people.
The Committee must consider the requirements of international law when undertaking the review of section 25 of the Constitution. Section 39 of the Constitution governs the interpretation of the Constitution and requires that international law is considered when any right in the Bill of Rights is interpreted. Article 18 of the United Nations Universal Declaration of Human Rights (UNDHR) protects the right to private property and says that compensation should be paid to someone if their property is expropriated by the State. Agricultural needs must be considered, and emerging farmers must be supported to ensure food security. That property rights are the cornerstone of the economy which must be considered. Financial markets had reacted negatively to the proposed review of section 25 of the Constitution. There was also a concern that the process could result in the destruction or distortion around the history of land dispossession in the country.
Ms Mokwele said the report failed to include the views of people who attended the hearings in Goodwood in Cape Town. Page 71 and 72 also appeared to copy and paste information. This could impact on the credibility of the report. Was the information on those pages copied and pasted from somewhere else? The report should also not classify Khoi and San people as non-Africans. This is what the Apartheid and Colonial people did. The Committee and the final report must deal with the dispossession of land in an inclusive manner.
Mr Filtane said he was generally happy with the report as a whole. The Free State submissions however did not appear to be covered in the main report. The report also uses the word “overwhelming” repetitively. When does support – or opposition – for the amendment of section 25 of the Constitution reach the threshold of “overwhelming”? Page 100 of the main report refers to Article 18 of the UNDHR. Does the UNDHR override the Constitution? Specifically, the provisions of section 25 of the Constitution which require the State to ensure that people have access to land?
Mr Mpumlwana said the report had noted a number of problems such as evictions on farms. However, the report failed to mention the issue that many farm dwellers do not receive government services. Farm dwellers said they do not receive access to government services because the farm owners often do not allow the government to come onto their land. This is an issue which the report should include. Farmers also own a large amount of land. This was also not included in the final report. In Umtata a number of proposals had also been made. An inkosi had made certain proposals to facilitated land reform and the review of section 25 of the Constitution. Were those suggestions captured in the final report? Overall, the report accurately reflects the public submissions in the provinces in his view.
Ms Mothapo said the report should have a dedicated page for abbreviations after the table of contents. The report will ultimately become a public document. In some instances, acronyms were used without defining those acronyms in full. There also a few typos and omissions which need to be sorted out. Some terminology is also incorrect. For instance, in some cases the report refers to “chiefs” and “traditional leaders” interchangeably. It would be better to use the terminology used in the Traditional Leadership and Governance Framework Act (TLGFA). There is also some repetition which should be rectified. Overall however the report is well done.
Mr Swart said he appreciates the report is a draft and therefore is a work in progress. The Committee will have to deliberate on the findings of the report at some stage. He appreciates that the presentation is simply a summary and not the final report. However, some statements in the presentation were a cause for concern. One statement in the presentation said the “public painted a desperate situation of landlessness and threatened to occupy to land”. That is not a factual statement. Not all of the public share that view. Many people made presentations and not everyone who made submissions shares that view. It is important to be careful as to how the report is ultimately phrased. Some slides referred to the “farming community” but there are multiple farming communities throughout the country who may have different views on the review of section 25 of the Constitution. It is important for food agricultural and development to be included in the report. He understands it is difficult to capture everything. There are some statements which have been omitted which should be included. It may be necessary for the Committee to make additions to the report going forward.
Mr Chabangu said there are omissions in the report regarding Kwa-Zulu Natal. Some people in KZN said the land should be under the Ingonyama Trust. Other people – especially in Pietermaritzburg – had more mixed feels and some said land should be expropriated without compensation. There are also a few grammatical errors which need to be corrected.
Dr Ganyaza-Twalo said the report provides a list of the people who made the submissions in the various towns which the Committee visited. The report aims to synthesise that information. Responding to Ms Mokwele, the report did include the presentations made by the people in Goodwood in Cape Town.
She appreciated the positive comments on the report. It may be necessary to rearrange some information – such as that collective in the Free State – to make the report more user friendly.
Responding to Mr Filtane, the phrase “overwhelming support” simply means that in some towns the majority of people supported the review of section 25 of the Constitution. It is difficult to answer the question as to whether Article 18 of the UNDR overrides the Constitution. Compliance with international agreements are usually monitored by some external agency. Such agreements will not necessarily override the Constitution but a failure to comply with those agreements could have adverse economic effects on investor confidence.
Responding to Mr Mpumlwana, she would try to incorporate the input of the people from Mthatha into the report. Issues around foreign ownership of land would also be incorporated into the report. The issue around farm dweller insecurity was touched upon but can be expanded on further, specifically, regarding issues such as farmworkers not receiving government services.
Responding to Ms Mothapo, an abbreviations page would be developed. The issue of using “traditional leaders” and “chiefs” interchangeably in the report would also be looked into.
Responding to Mr Swart, a consideration would be given to the language used in the report. She has tried to capture the submissions exactly as it was presented. However, she would look into examining the language and phrasing of the report generally.
Responding to Mr Chabangu; the report does reflect the views of people in KZN and the suggestions around the Ingonyama Trust. However, the report would be examined to ensure those issues are properly dealt with and included in the report.
Ms Carter said the submissions in Vryheid had illustrated the effects of policy uncertainty on the issue of expropriation. People are already losing their jobs because of that policy uncertainty. The word “overwhelming” should not be lightly used. For instance, in Kokstad there was overwhelming support for land redistribution but is not clear whether “overwhelming support” refers to expropriation without compensation or expropriation with compensation for instance.
Mr Buthelezi said he agreed with the comments of Ms Carter. It is not clear what the phrase “overwhelming support” refers to as it can mean a number of different things. The report also does not really mention the issue of state-owned land. The report does not capture the submissions that the State should first redistribute state-owned land before expropriating land.
Mr Swart said in Qwa-Qwa there was evidence that corruption had occurred in a Department. That is an important aspect which should be highlighted in the report as well. The challenge is determining what should be excluded or included in the final report. However, the issue of corruption should be included. The reference to the high level panel should also be included in the report. He agreed with the other members that the use of the word “overwhelming” was inappropriate and should be avoided where necessary. Figures should be provided of how many people spoke and what their respective views were.
Mr Filtane said his question regarding the Free State was not answered. He had made personal notes regarding the presentations in the provinces. His notes do provide a different perspective from some of what appears in the report and the presentation.
Mr Mpumlwana said the figures should be broken down into more capture and shared with the Committee if possible.
Dr Ganyaza-Twalo said she agreed with the suggestions made by the Committee and would incorporate those suggestions. Many of the suggestions already appear in the report but maybe should be magnified to make those aspects of the report more explicit and clear.
The Chairperson requested that if Members of the Committee have personal notes that those notes be sent to Dr Ganyaza-Twalo. This would help her to compile her report and ensue that the report is accurate. Those written notes could potentially be added as annexures to the report. The draft report would be infused in the final report which would be deliberated on by the Committee and presented to the National Assembly.
The Chairperson said her point around calling Khoi and San people as African or non-African is a bit tricky. Some Khoi-san people who made oral representations said they do not identify as black. The same principle suggested by Ms Mothapo regarding the phrase “traditional leaders” should also be used for any reference to Khoi-San.
The meeting was adjourned.
Nzimande, Mr LP
Beukman, Mr F
Breytenbach, Adv G
Buthelezi, Mr EM
Carter, Ms D
Chabangu, Mr M
Filtane, Mr ML
Koornhof, Mr NC
Lotriet, Prof A
Maila, Mr MS
Mokwele, Ms T
Mothapo, Ms MR
Mpumlwana, Mr LKB
Paulsen, Mr N M
Smith, Mr VG
Swart, Mr SN
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