Committee Report on Review of Section 25 of Constitution: adoption

Constitutional Review Committee

15 November 2018
Chairperson: Mr L Nzimande (NCOP); Co-Chairperson: Mr M Maila (ANC) (NA)
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Meeting Summary

VIDEO: Will section 25 of the Constitution be amended?
The Chairperson noted the observations and recommendations made by Members on behalf of their political parties the day before. There were points of divergence and convergence which the Committee can highlight in its observations. The Committee must have a final recommendation which gives an answer to the question of the possible review of section 25.

The EFF and the DA put proposals forward to the Committee as final recommendations. The EFF proposal recommended that section 25 of the Constitution be amended to make explicit that which is implicit in the Constitution on expropriation of land without compensation, as a legitimate option for land reform, to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes.

The EFF clarified that the question is whether to amend section 25 or not. The EFF position is the state must own the land but that will not go into the Constitution. The Constitution should state that land shall be expropriated without compensation. The Bill will speak to the details.

The DA proposal recommended that successful land reform does not require amending the Constitution. That which is implicit in the Constitution must be made explicit by legislation and that section 25 of the Constitution should not be amended.

The Committee agreed that the second proposal be dismissed by a vote of 12 in favour and four against. Thereafter the Committee voted in favour of the first proposal that the Constitution be amended. The Committee Report was adopted by a vote of 12 in favour and four against. The Committee Report will be referred to the two Houses of Parliament for approval.

 

Meeting report

Mr M Maila (ANC), Co-Chairperson, noted the observations and recommendations made by Members on behalf of political parties the day before. There were points of divergence and convergence which the Committee can highlight in its observations . The Committee must have a recommendation which gives an answer to the question of the possible review of section 25. This meeting is being held to get an answer, being the final recommendation after a mammoth process which witnessed public participation as never seen before. Corrections had been made to the addendum to the Committee Report which the Committee discussed the previous day. The divergent and convergent views can be included in the observations but that the Committee needs a recommendation

Mr F Shivambu (EFF) proposed that the following be the final recommendation:
 

"Having taken into account all the observations, the Committee recommends:

That section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without compensation, as a legitimate option for land reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs

That a mixed ownership of land, which inter alia includes individual ownership (title deed issued to beneficiaries), direct state ownership, trusts and communal land custodianship must be ensured through a separate Land Redistribution Bill, which will make sure that all South Africans have equal access to land

That Parliament must urgently establish a mechanism to effect the necessary amendment to the relevant part of section 25 of the Constitution

That Parliament and Executive must ensure that all legislation related to Land Reform, must be enacted as a matter of urgency

That security of tenure for farm workers, farm tenants and those residing on communal land held in trust must be assured, and all rentals of communal land must be abolished

That Parliament must table, process and pass a Constitutional Amendment Bill before the end of the Fifth Democratic Parliament in order to allow for expropriation without compensation".

Mr V Smith (ANC) seconded the proposal by Mr Shivambu. He requested if the meeting can adjourn shortly so that copies of what Mr Shivambu was proposing be made available to Members.

Co-Chairperson Maila asked if there is any other proposal.

Dr Lotriet said that the DA believes that the report should not have been tabled, process has not been followed and that the DA reserves its rights. The current constitutional provisions adequately allow for progressive land reform, restitution and the protection of tenure security and land rights. Successful land reform does not require amending the Constitution. That which is implicit in the Constitution must be made explicit by legislation and the DA recommends that section 25 of the Constitution not be amended.

Mr L Magwebu (DA) seconded Dr Lotriet’s proposal

[The meeting adjourned so Members could receive copies of the two proposals]

Co-Chairperson Maila reconvened the meeting and noted that the proposals were directly opposite and asked whether it is possible to reconcile the two positions. He offered two minutes to the proposers to convince Members on the way to go.

Mr N Koornhof (ANC) noted that the proposal by Mr Shivambu which Members had in hand was different from what was earlier read to Members. He asked for clarification.

Mr Smith commented that the mandate of the Committee was to check whether section 25 must be amended. He asked whether the Committee should be talking to how that will be done or whether the Committee should leave that to the incoming vehicle. He asked if mixed ownership should be part of the Committee’s recommendation. He proposed that the Committee should have one simple liner on whether to amend or not to amend.

Mr J Malema (EFF) stated that the question is whether to amend section 25 or not. The EFF position is the state must own the land but that will not go in to the Constitution. The Constitution should say land shall be expropriated without compensation. The Bill will speak to the details.

Mr L Nzimande (ANC), Co-Chairperson, suggested that the proposers be given two minutes to address the meeting .

Mr M Buthelezi (IFP) stated that the Committee has been going through the process and there is no need for the proposers to present; the question should be whether Members agree or do not agree.

Mr Malema said that the EFF’s position is in the recommendations and that (b) on mixed ownership can be removed. He proposed that (b), (c),(d),(e) and (f ) be removed, then Committee can say it is amending the Constitution, Parliament then knows the process that is to follow.

Mr Smith proposed that bullet point (a),(c) and (f) remain.

Co-Chairperson Nzimande noted that the first proposal was from Mr Shivambu who is an alternate member of this Committee. The Committee takes it that he was doing it on behalf of Mr Malema.

Mr S Mncwabe (NFP) said that it was correct to say that the Committee should speak to section 25 so that the Committee does not act out of mandate. He proposed that Members confine themselves to section 25 and that the other points can be supporting points.

Mr Malema responded that the proposal can also be similar to the DA proposal which says do not amend which can easily be done by having a one line proposal saying that the Constitution should be amended. He clarified that (c) and (f) seeks to suggest how Members can possibly go forward and that political parties can debate the matter in the House.

Mr Mncwabe replied to Mr Malema saying he was convinced.

Co-Chairperson Maila said Members are not going to discuss the proposals; the Committee is answering the question. He read out the question stating that on 2 February 2018 the NA took a decision that the Committee should engage on the question. On 7 March 2018 the NCOP agreed with the NA that the question be put before this Committee. The Committee should review section 25 of the Constitution and other clauses where necessary to make it possible for the state to expropriate land in the public interest without compensation, and in the process conduct public hearings to get the views of ordinary south Africans, policy makers, civil society organisations and academics about the necessities of and mechanisms for expropriating land without compensation. He confirmed there are two proposals before the Committee.

Mr Malema read out the first proposal as amended:

"Having taken into account all the observations, the Committee recommends:

That section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without compensation, as a legitimate option for land reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs

That Parliament must urgently establish a mechanism to effect the necessary amendment to the relevant part of section 25 of the Constitution

That Parliament must table process and pass a Constitutional Amendment Bill before the end of the Fifth Democratic Parliament in order to allow for expropriation without compensation".

Mr Malema added that the EFF supports that in the public interest the Constitution must be amended to allow for expropriation of land without compensation. The EFF knows that there is a separate process to be engaged before amending the Constitution and that a Constitutional Amendment bill must be processed to allow amendment of section 25.

Mr Smith said that for the record he seconds the amended proposal as read by Mr Malema because this is what majority of the people are saying.

Dr Lotriet read out her proposal: The DA states categorically that the observations and recommendations are being made under protest. The Committee Report in which the recommendations and observations appear should not be considered yet as the constituent parts of the report are yet to be finalised. The Democratic Alliance reserves its rights with regard to the draft Committee Report, and the making of recommendations under these circumstances should not be construed under any circumstances as acquiescence, approval or consent of the errors in procedure that have been willfully committed by the Committee and some of its Members. Nor should it be construed as legitimizing the process. The current constitutional provisions adequately allow for progressive land reform, restitution and the protection of tenure security and land rights. Successful land reform does not require amending the Constitution. That which is implicit in the Constitution must be made explicit by legislation and that the DA recommends that section 25 of the Constitution not be amended.

Co-Chairperson Maila asked if the motion is a DA motion or a motion by Members of the Committee.

Ms D Carter (COPE) seconded the proposal.

Ms M Mothapo (ANC) pointed out that Ms Carter is an alternate and requested that an authentic Committee member seconds the proposal.

Co-Chairperson Maila clarified that Ms Carter is standing in on behalf of Mr Swart of the ACDP. In the smaller parties there are alternates and Ms Carter and Mr Buthelezi are alternates. He confirmed that Ms Carter is standing in for Mr Swart and has full participation rights.

Ms Mncwabe confirmed that Ms Carter has full status.

Dr C Mulder (FF+) wanted to confirm that there will be no discussions on the proposals.

Co-Chairperson Maila noted that Mr Buthelezi had earlier made a suggestion that there be no discussion and that there had been no dissenting view from Members.

Dr Mulder raised a point of order, asking if it is procedurally correct to have two different motions on the table and whether there could be an amendment on a proposal.

Mr Malema asked that Dr Mulder point to the rule which says there can never be two proposals on the table. An amendment to an existing proposal can be another proposal which is the same thing. People must not be bitter about losing the debate.

Mr Smith put to the table that the Committee rejects the proposal by Dr Lotriet. The DA talks about the process as being flawed and then goes ahead to make a recommendation on what is flawed. He moved that the Committee goes only with the first proposal by Mr Malema.

Mr Malema seconded the proposal by Mr Smith.

Co-Chairperson Maila asked Members in favour of the proposal to indicate by a show of hands.

 

Twelve Members raised their hands to Dr Lotriet's proposal being dismissed.  Four Members were against dismissing Dr Lotriet's proposal.

Co-Chairperson Maila ruled that the motion by Dr Lotriet has been dismissed.

Co-Chairperson Maila asked those in favour of the motion by Mr Malema to indicate by a show of hands.

Twelve Members were in favour of the proposal by Mr Malema and four were against.

Co-Chairperson Maila ruled that the motion by Mr Malema has been agreed to by the Committee.

Dr Mulder said that the Committee was set up to have parties represented. He noted that Members from other parties participated in the process but were not entitled to vote. He asked if the recommendations can indicate those parties that supported the motion and those that did not support the motion.

Mr Malema replied to Dr Mulder saying that will be done in the House.

Co-Chairperson Maila added that parties were given the right to participate and were never barred and that there will still be debate in the House.

Mr Malema said that it is incorrect for Dr Mulder to act as if he does not know how the process works. The small parties were represented by Ms Carter.

Dr Mulder replied that Mr Malema is not informed and that Ms Carter voted on behalf of the PAC and APC.

Mr Shivambu said that the FF+ made 15 recommendations in its observations and that the small parties were given equal time as the bigger parties.

Co-Chairperson Maila put the Committee Report to the Committee for adoption.

Mr Smith requested the legal advisor give clarity on how to adopt the Committee Report since it is 20 pages.

The Parliamentary Legal Advisor said that since the report was previously presented to the Committee, there is no need for it to go through it again. It is up to the Committee if it wishes to go through the report again.

Mr Mncwabe proposed that Members adopt the report since Members had gone through it before.

Co-Chairperson Maila said the recommendations will form paragraph 7 of the report.

Mr Malema proposed that a paragraph be added to the Committee Report stating that the Committee is overwhelmingly satisfied with the process which attracted huge numbers.

Ms T Mampuru (ANC) agreed with Mr Malema that the observation should be included in the report. The Committee had travelled across the country, the Committee had what it takes and Members are happy.

Mr L Mpumlwana (ANC) moved for adoption of the report.

Mr Mncwabe seconded.

Co-Chairperson Maila asked those in favour to indicate by a show of hands. He confirmed that 12 Members were in favour of adopting the Committee Report.

Co-Chairperson Maila asked those Members against adoption of the Committee Report indicate by a show of hands. He confirmed that four Members were against adoption of the report. He confirmed that the report has been duly adopted.

Co-Chairperson Maila thanked Members for their work and said that the Committee Report will be referred to the two Houses of Parliament.

Meeting adjourned.

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