Section 25 review of Constitution: party submissions

Constitutional Review Committee

13 November 2018
Chairperson: Mr L Nzimande (ANC, NCOP); Mr S Maila (ANC, NA)
Share this page:

Meeting Summary

VIDEO: Joint Constitutional Review Committee To Consider Report On Land Hearings, 13 November 2018

Committee members presented their political party recommendations on the amendment of section 25 of the Constitution. The ACDP expressed concern at the manner in which the Committee dealt with the written submissions. It stated that a review must consider the impact the amendment would have on food security, agricultural sector stability, investor confidence, the financial exposure of banks and other financial institutions. ACDP submitted that the overwhelming evidence by legal experts is that section 25 does not present an impediment. The ACDP stated that it opposes any amendment to section 25 and advised that the Committee focus on the High Level Panel advice.

The NFP pointed out that the people who are for the amendment are the people who suffered historical injustices. Its recommendation is that Parliament must amend section 25 to explicitly allow for expropriation of land without compensation before the end of the Fifth Parliament.

The DA in its submission stated that the Committee cannot rely only on the public hearings but that it has to consider the written submissions as well. There was disregard of the 650 000 written submissions. It expressed concern that the process already had a pre-decided outcome since the government had announced that certain lands have been earmarked, coupled with President Ramaphosa statement on 31 July which was made while the public hearings were not yet completed. The DA submitted that its position is that the Committee has not done its work thoroughly as would be expected and that there are less restrictive measures available for land reform.

The IFP stated that the expropriation of land was supported by a majority in the public hearings. Very few supported the view that the state should be the custodian of land and that corruption and incapacity by the state to manage land under its control kept coming up. It submitted that the majority of the oral presentations done in Parliament opposed the amendment of the Constitution. The IFP recommends that government qualifies the process if land is expropriated and that the state also confirms its ability. The IFP is opposed to the amendment and believes that reform can still be achieved under the current Constitution and that it is not the Constitution which has failed but it is the policies which have failed.

The UDM submitted that the amendment of the Constitution is the only instrument which will make it possible for people to get their land back. It stated that the Constitution does not explicitly empower expropriation of land without compensation and that members should not abrogate responsibility of making laws to the judiciary. The UDM was of the view that reference to land reform is an attempt to divert and narrow the debate. Its position is that it wants the Constitution amended to allow government to expropriate land without compensation.

COPE expressed its concern about the manner the Committee had gone about the process. It stated that the country is facing the damaging impact of abject failure of state. The state has not given meaningful effect to the provisions of section 25 of the Constitution. COPE’s recommendation is that the Constitution provides all the powers to ensure full realisation of land reform and there is no rational reason to amend section 25. It recommends that the findings of the High Level Panel must be accepted and adopted.

The Freedom Front Plus (FF+) stated that the statistics given by the service provider states that 630 000 submissions were received. 74.9% of the submissions said no to amendment of the Constitution whereas 24% said yes. A total of 53 organisations gave oral submissions in Parliament and 41 of the 53 organisations said no to amendment of the Constitution, 11 organisations said yes. The FF+ emphasised that more than 75% of people who came to Parliament to make submissions said no to changing the Constitution. Fingers were pointed at government for failing at land reform over the last 24 years and that section 25 is not the problem and thus should not be amended.

The EFF stated that it tabled the motion for amending the Constitution and Parliament agreed to a constitutional review process and that public hearings be conducted. Nowhere did Parliament say the Committee should conduct a referendum. Members should not rush to give numbers but should present on the substantive issues. The EFF submitted that no single white person supported amendment of section 25 and that the issue is not a matter of class but a matter of race. White people do not want land to be released because land is regarded as the privilege of the whites. The EFF added that it is happy with the process and that for the first time during public hearings, black and white people were sitting together.

The ANC disagreed that section 59 of the Constitution – dealing with public involvement – was not complied with by the Committee. It had listened to the views of ordinary South Africans and that a majority of South Africans felt that the Constitution must be amended to make it explicit. The ANC stated that it is of the view that section 25 must be amended to make it clear that expropriation of land without compensation is a mechanism that can be used. It clarified that the Committee is not predetermining the when and how since that will be done by another body.

Meeting report

The Chairperson appreciated the inputs from political parties. The party submissions will not be addendums to the Committee Report. The submissions by the parties are to be used as guides. The Committee will hear inputs from members on the observations and recommendations. A chance will be given to all members and other members will not question the credibility of submissions by other members. The secretariat will capture what has been presented. A session will then be held by the Committee to discuss the observation and recommendations for the Committee Report.


Dr A Lotriet (DA) noted that all parties had submitted written recommendations and asked if Members will be repeating what was submitted.

The Chairperson responded that Members will talk to their submissions. The Secretariat will table a summary which is the product that the Committee will engage on.

Mr S Swart (ACDP) stated that he is ready to proceed.

Mr M Filtane (UDM) asked how much time will be assigned to each member and the Chairperson replied that the time will be five minutes per member.

Mr S Swart stated that as a member of the committee and the ACDP he had been there since 1999 and that during the land hearings he was moved by the pain and anxiety of the poor people who addressed the Committee. He expressed concern at the manner in which the Committee dealt with the written submissions. The Committee is obliged to consider written submissions as part of the public participation process as required by section 59 of the Constitution. The Committee made invitations for written submission in May 2018. There are guidelines on how written submissions are to be presented and that duty has been confirmed by the Constitutional Court in various judgments including Doctors for Life International v Speaker of the National Assembly and Others. The Committee has not complied with the requirements of the Constitution. He appreciates the issue of land reform noting it is an emotive issue and he associates himself with the view that Members must be informed. There is a need for reconciliation love, justice and reconciliation and leaders need to find a common ground that will promote harmony. Any possible review must consider the impact on food security, stability in the agricultural sector, investor confidence, financial exposure to banks and other financial institutions. He appreciated that there are different views on whether section 25 is an impediment to land reform.

ACDP submits that the overwhelming evidence by legal experts is that section 25 does not present an impediment. This view was convincingly argued by former Constitutional Court judge, Albie Sachs, and was also expressed by the High Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change (Motlanthe Panel Report). The South African Human Rights Commission (SAHRC) stated in its submission that while it regards expropriation of land without compensation as being just and equitable in appropriate circumstances, the Constitution does not lend itself to amendments in the detail needed to limit expropriation without compensation in the context of addressing the results of past racial discrimination. Amending the Constitution will be premature and will conflict with the doctrine of subsidiarity. There were various issues about title deeds and state custodianship of property. Evidence was heard about widespread fraud, corruption and nepotism in the land reform process which evidence is corroborated by the findings of the Motlanthe report. The Motlanthe report was not considered by the Committee. The ACDP recommends that because of the different views, the Constitutional Court should be approached to provide clarity on the full parameters of section 25. Section 80 of the Constitution provides that Members of the National Assembly may apply to court for an order that all or part of an Act of Parliament is unconstitutional. The ACDP supports restitution, all existing land audits should be investigated while considering the interests of commercial farmers. The ACDP is also concerned with the number of illegal land invasions and advises that the Committee focuses on the High Level Panel advice. The need to pay compensation is not the most serious constraint, corruption is far more serious. The ACDP opposes any amendment to section 25.

Mr S Mncwabe (NFP) stated that he was happy with the way the public hearings were conducted noting that members of the public were given an opportunity to express themselves in the language of their choice. Most areas covered were in the rural areas in different provinces comprising the people who feel neglected. The views given are different. He pointed out that the people who are for the amendment are the people who suffered historical injustices. Land is sensitive, an old man during the public hearings said that he started working as a young boy and at 80 years he still has nothing to show. People regard land as agriculture and housing but a young teacher said to the Committee that there is an educational aspect to land. The teacher submitted that some schools have only one or two soccer fields necessitating the question of land in the education sector. The land question is a historical matter and that historical wars were based on land. NFP recommends that Parliament must amend section 25 to explicitly allow for expropriation of land without compensation before the end of the Fifth Parliament. There will be differences but the government tried to address the matter amicably by allowing for willing buyer, willing seller which has failed. Amending the Constitution seems radical but there is no other way to address the issue. He pointed out that when a mother cannot give birth the natural way, caesarean section is used because the child must be born and that the NFP recommends that the Constitution be amended.

Dr A Lotriet (DA) stated that her observations are being made under protest and the making of the recommendations should not be construed as acquiescence, approval or consent of the errors in procedure. The majority of the oral submissions strongly pointed out that government has failed to implement provisions of the Constitution. The process is not finished and is compromised. The issue of land is extremely important and emotive and any rushed procedure does not do justice to its importance. She quoted Justice Sachs who stated that active and ongoing public involvement is a requirement and a constitutional obligation. The Committee cannot rely only on what happened at the public hearings and has to consider the written submissions too. There was disregard of the 650 000 written submissions received. 176 000 submissions were disregarded because of the use of the same email address. Members of the Committee do not have access to those submissions on email. The Committee is already asking for recommendations yet there is no report on the written submissions. An additional problem is the integrity of the report on written submissions which is questionable because of the credentials of the company which did the work as was evident on 20 September 2018. Members have not yet received the finalised report indicating that the service provider report is verified. Members are still sitting with the service provider report even though Members had rejected it. It is also worrying that the process already has a pre-decided outcome since the government announced that certain lands have been earmarked, coupled with the President Ramaphosa statement on 31 July 2018, while the public hearings were not complete, which statement undermined the work of the Committee. The Committee has not dealt with section 36 of the Constitution and the different requirements there. The Committee has not done its work thoroughly as expected. There are less restrictive measures available for land reform. She noted that there are other legislative measures which have not been exhausted and made reference to the Restitution of Land Rights Amendment Bill and the Extension of Security of Tenure Amendment Bill. The Committee has not engaged with the High Level Panel recommendations and the Surveyor General. She concluded that the Constitution allows for progressive land reform and that other legislative measures have not been exhausted and that the DA does not support amendment of Constitution.

Mr M Buthelezi (IFP) acknowledged that land is in the hands of a few people and that it is a challenge which needs to be addressed urgently. Every person who participated acknowledged the need to address the question of land reform once and for all except for AfriForum which in its submission made it clear that there is no need for land to be given to black people. This view was different from the view in all the provinces. Expropriation of land was supported by a majority in the public hearings. Very few supported the view that the state should be the custodian of land; it was stressed that land should be given to the people and title deeds issued. The issue of corruption and incapacity by the state to manage land that is under its control came up. Those opposed to the amendment of the Constitution were shouted at during the provincial hearings. There was also interferences at the hearings and there was an instance where one political party demanded that white people be removed. The majority of the oral presentations in Parliament opposed the amendment of the Constitution. The IFP recommends that government qualifies the process if land is expropriated. The State should also confirm its ability. The IFP is opposed to the amendment and believes that reform can still be achieved under the current Constitution and that it is not the Constitution which has failed but it is the policies which have failed.

Mr M Filtane (UDM) stated that given the painful history of dispossession through the brutalising of the then land owners over three centuries ago, the one and only instrument for making it possible for people to get their land back is for the Constitution to be amended. The process of amending the Constitution has been meticulously observed and is in compliance with the Constitution. He said others can fault the process but the case will fall flat at the Constitutional Court. There has been enough time to explore and exploit opportunities and even now there is still time. The Constitution does not explicitly empower expropriation of land without compensation. The landless have through public hearings overwhelmingly supported the proposed amendments. There is no economy that performs better because the wealth is only in the hands of a few people. The high spate of land grabs is a manifestation of the hunger for land. Those opposing the amendment are bent on perpetuating poverty and people are living in tin houses from generation to generation. Members cannot and should not abrogate the responsibility of making laws to the judiciary. The majority of South Africans do not know how to make applications to the Constitutional Court. The majority of the people cannot read or write. Members were encouraged to acquaint themselves with the written submissions and for some Members to complain at the 11th hour demonstrates that these Members are not working in the interest of the people. Some Members keep referring to land reform yet the motion refers to public interest and makes no mention of land reform. Reference to land reform is an attempt to divert and narrow the debate. He submitted that the UDM wants the Constitution amended to allow government to expropriate land without compensation. There is no government with a budget to purchase land at ever increasing prices from people who did not purchase it in the first place. If one says people must go to court one must ask whether Members are talking about the interest of the public. It is selfish to want people to live in tin houses for the rest of their lives.

Ms D Carter (COPE) stated that democracy is representative and participatory in nature. COPE believes that the process to be followed and respected by the Committee has not been complied with. There was disregard of written email submissions on the pretext that the emails are duplicates. Despite request by some Members for the digital spreadsheets to be made available, that was not done. Members were given an opportunity to go to a board room where the hand delivered submissions were made available but to date almost 500 000 email submissions have not been made available and the administrative staff have indicated that Parliament’s IT unit is still trying to upload the emails. The Committee has disregarded two thirds of the submissions. The Committee has failed to comply with section 59 and 195(1)(e) of the Constitution that encourages the public to participate in policy making.

 

Members have listened to the views of South Africans. Members have perused handwritten submissions and feel the pain and frustration of the people. In addressing historical injustices Members must be mindful of the future. COPE is concerned with the manner the Committee has gone about the process. The country is facing the damaging impact of abject failure of the state and its executive. The state has not given meaningful effect to the provisions of section 25 of the Constitution. The lack of legislative framework to drive land reform lies in the hands of the state. The High Level Panel report is an official document of Parliament circulated by the Speaker to the committees to address the findings in the report. She does not understand why the Chairperson rejected the High Level Panel report. Parliament has not exercised meaningful oversight over the executive and the state has failed to ensure realisation of land reform and section 26 on housing rights. It is the state that is responsible for realisation of housing as South Africans migrate to urban centres for jobs and better lives.


Ms Carter noted the impact of the amendment on future economic growth and the stability of the banking sector. She pointed out that in February this year the valuation of property dropped by 30% and said that it is the poor who will suffer the most. Injustice must be remedied but COPE does not support expropriation of land without compensations. COPE concurs with findings of the High Level Panel. She requested that the Committee makes available written submissions to committee members. It is not right that the Committee trusts staff members and agencies from outside but does not trust the Members. The Committee should interact with the Surveyor General, should the Committee not agree to the above. COPE’s recommendation at the level of protest is that the Constitution provides all the powers to ensure full realisation of land reform and no rational reason is there to amend section 25. The findings of the High Level Panel must be accepted and adopted. She cautioned Members from creating policy insecurity and asked what the effect on the fiscus will be when taxpayers are no longer going to invest in the country.

Dr C Mulder (Freedom Front +) stated that if one wants to change the provisions of the Constitution, then the Committee cannot afford to make procedural errors. He said in this process many errors were made and are still being made. The FF+ reserves its rights in regard to the process and that the observations should not be construed as approval or consent of the errors committed willfully by the Committee and its Members, even after being warned. He said the Committee is committed to taking a report to Parliament that will embarrass Parliament and the President. The whole process is flawed. On the public hearings, there were 33 meetings where on average 75 people spoke at each meeting. He asked Members to assume that all who attended the hearings were in favour and that 1000 people attended the hearings, then it could be said that 33 000 were in favour of the amendment. On the written submissions he reminded Members that on 14 March 2018 the President asked for the public to make submissions. On 31 May 2018 an advertisement was placed in the media asking the public to make submissions. On 24 June the Parliament spokesperson said the Committee is contracting a service provider to increase the capacity of the Committee with the aim of analyzing the submissions to ensure each and every submission is considered. That process did not happen. Not one single submission was addressed to a political party or Committee member; the submissions were addressed to Parliament. Members were asked to go and have a look which Members did. No report dealing with the written submissions was presented to the Committee. More than 200 000 emails are somewhere in space and were never made available to Members. Statistics given by the service provider state that 630 000 submissions were received, 74.9% of the submissions said no to the change in the Constitution. 24% said yes. For the oral submissions in Parliament, a total of 53 organisations came, 41 of them said no to amendment of the Constitution, 11 said yes. More than 75% of people who came to Parliament to make submissions said no to changing the Constitution.

Dr Mulder said the land issue should be addressed in a proper fashion and Members should not play politics. The Committee was told of the implications. In terms of the international implications, there is section 17 of the Universal Declaration of Human Rights and the AGOA Act. From the written submissions and oral submissions made in Parliament, 75% stated that there were no grounds for amendment of the Constitution. The Chairperson himself had at numerous times informed Members that the written submissions are just as important as oral submissions. He pointed to President Ramaphosa’s statement on 31 July 2018, which was made in the middle of the Committee public hearings process. The SA public and international community should take note that the process was a charade and fundamentally flawed; the Committee wasted time and people’s money. Fingers pointed to government for failing during the last 24 years but now the finger is pointed to the Constitution. He emphasised that Section 25 is not the problem and should not be amended.

Mr J Malema (EFF) stated that the EFF tabled this motion and Parliament agreed to a constitutional review process and it was agreed public hearings be conducted. Nowhere did Parliament say the Committee should conduct a referendum. Members should not rush to numbers but should present on substantive issues. In the hearings, a majority of people agreed that the Constitution be amended to enable them have access to land to resolve inequality, unemployment and poverty. The people want to use the land to empower themselves to become active participants in the economy of South Africa. No single white person supported the amendment of section 25. He said the issue is not a matter of class but is a matter of race. White people do not want land to be released because land is regarded as the privilege of the white. State incapacity in the past does not translate to state incapacity in the future. Land is an emotive issue and it was expected to be a heated debate. Serious threats were made in the meetings by white people threatening the stability of this country but the EFF does not want to belabor the point. A lot of laws have been passed by Parliament through public participation and none attracted such a huge number of people as this. In reference to Dr Mulder’s submission, he said it cannot be correct that because only 33 000 people were in favour, then the Committee cannot make a decision. Parliament has been making decisions based on 500 people participating in public hearings. President Ramaphosa was speaking on a party position and he never said ‘government’. The EFF is happy with the process. In the public hearings, ordinary people were saying that for the first time black and white people were sitting together. It was a smooth process, only that the other parties’ ideas did not win the day.

Mr V Smith (ANC) stated that section 10 of the Bill of Rights states that everyone has a right to inherent dignity and the right to have their dignity respected. For centuries the dignity of the people in South Africa was trampled on and that needs to be corrected. He agreed with Mr Malema that it was not a referendum. It is a fact that the majority of current land owners were opposed to the amendment. It is also a fact that those deprived of land cannot wait to get their land. The question was on the desirability of amending the Constitution. A majority of South Africans felt that the Constitution must be amended to make it explicit. Many of those in the rural areas asked Members to put it in the Constitution so that it cannot be challenged in a court of law. The recommendation by ANC is to strengthen it and make it unchallengeable. He disagreed with the argument that the court must test it. Parliament cannot outsource its responsibility as law makers to courts. The High Level Panel no longer exists and those who participated in the High Level Panel interacted with the Committee. The interaction did not need to be physical since Members can read.

He agreed that part of the problem in the last 24 years has been a lack of capacity and corruption. Whatever is done, Members must ensure that food security and the economy will not be tampered with. The Committee must debunk the myth that there will be shortage of food if the people are given land. He pointed out that President Ramaphosa is talking about investors who want to come and invest in the country. He clarified that the Committee is not doing the actual amendment. The Committee is saying to Parliament whether there is need for amendment. He disagreed that section 59 was not complied with and confirmed that the Committee listened to the views of ordinary South Africans. He said the ANC is of view that section 25 must be amended to make it clear that expropriation of land without compensation is a mechanism that can be used. The Committee is not predetermining when and how, that will be done by another body. Parliament must ensure that the restitution and expropriation acts are expedited, which process can be done simultaneously. The people have complained about tenure of security, graves have been desecrated and there is need to restore the dignity of South Africa and guarantee the future of the children.

The Chairperson informed Members that a summary of the party submissions will be presented the following day. The Committee will discuss what was presented. The views that cannot be agreed on will be presented to a popular vote.

Meeting adjourned.

Share this page: