Legal Services on process to amend the Constitution

Ad Hoc Committee to Amend Section 25 of the Constitution

21 February 2019
Chairperson: Ms T Didiza (ANC)
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Meeting Summary

Section 25 Process

The Ad Hoc Committee received a presentation from the Parliamentary Legal Services on the legislative process to amend Chapter 2 of the Constitution to allow for the expropriation of land in the public interest without compensation.

The committee heard that in developing a policy in terms of Rule 274 of the NA, among other things, it would have to indicate which subsections should be amended, expanded or deleted. The committee will further have to develop a Bill. As the Bill will be a Section 74 Bill, legal services suggested that it be sent to the National House of Traditional leaders, the public and provincial legislatures for comment.

The committee, in principal, adopted its programme for this process. It includes a presentation on the summary of the Joint Constitutional Review Committee report as well as presentations from various experts on the question of land reform.

Members of the committee identified experts to advise it but noted that they should not reopen the debate and have experience in this topic.

Meeting report

The Chairperson started by seeking support to adopt the agenda of the meeting; to which members obliged. 

She reminded the members, as was indicated in the last meeting, that two members from one party were previously representing smaller parties. The matter was raised with the Parliament administration and Chief Whip committee. When it was discussed, it was found to be a mistake and so Mr Mncwabe and Mr Buthlelezi were given the mandate to represent the smaller parties.

The Chairperson apologised for pushing the meeting forward because of the unavailability of most members on Friday 22 February. 

Members suggested that because of their crowded schedules, Fridays would be ideal for the committee to be holding its meetings.

Briefing on process to amend the constitution

Adv Charmaine van der Merwe, Senior Legal Adviser, Parliament, stated that the first step in any Committee Bill is to obtain permission and in this case there is already a National Assembly (NA) resolution given on 6 December 2018. What is difficult for this committee is that they are not only sitting with the requirements of a committee Bill but also requirements set by Sec 74 of the Constitution because a constitution amendment Bill is being dealt with in this case. As a result, during this presentation, reference will be made to the NA Bills and as well as Sec 74 of the constitution and both of this sources will inform the process.  The steps to the taken are the following;

Develop Policy: NA Rule 274(1) (a)

A Constitution Amendment Bill may only deal with Constitutional matters

The Committee must consider the first draft of the Bill and:

-       Deliberate on whether it reflects the policy instructions;

-       Consider questions that may have arisen during the development of the Bill;

-       Provide instructions on any further amendments / additions / deletions to be made so that a final-draft can be produced

Joint Tagging Mechanism (JTM): NA Rule 274(1)(b)

The Committee consults the JTM for advice on classification of the Bill

-       The Bill is a section 74 Bill (amending the constitution);

-       As this Bill deals with land, it is the view of Legal Services that the Bill must be sent to the National House of Traditional Leaders for comment (30 days is required)

Publication and Invitations: NA Rule 274(1)(c)

-       The Committee must publish particulars of the proposed amendment in the national Government Gazette for public comment;

-       S 74(5) requires that between publication and introduction at least 30 days must lapse;

-       NA Rule 275 requires that the Committee gives parties at least 3 weeks in which to comment.

-       NAR 274(3) – The committee must submit the particulars of the proposed amendment to the provincial legislatures for their views

See attached presentation

Discussion

Ms M Semenya (ANC) asked if the thirty days referred to can run concurrently as in thirty days to the National House Traditional Leaders and to other parties.

Mr V Smith (ANC) recommended that legal services give members a chart with a roadmap detailing when the thirty days will begin and end. This will guide the members to know when to end and when they start the process and by so doing, it would make life easier for members.

The Chairperson asked members if they agreed for the thirty days and concurrency matter to be clarified by legal services first. After that, they will progress to the programme from the management committee.

Mr M Maila (ANC) said that, on the possibility of public hearings, legal services said it is not a must but it should be considered to be deliberated on by members at some point as part of the committee’s programme. The reason being that public hearings have already taken place on the proposed amendment of the constitution and maybe there is no need to go to the public again otherwise what is the issue to be taken to the public again.

Ms L Maseko (ANC)  wanted to know whether clarity emanating from the speaker's invite to  the public or  provincial legislatures can be tabled before or after such comments has been considered by the committee?

Mr P Mnguni (ANC) wanted to know if there were court orders emanating from prior processes, how can they be integrated into the work of this committee?

Adv Van der Merwe said that the days can run concurrently in other words consultations with the National House of Traditional Leaders, with the public and the Provincial Legislatures will all be happening during the same period of time. On questions detailing the process such as the tabling of the comments received, that happens with the introduction of the Bill. The slide presented here has been sent to the committee secretary and he will distribute them to members because in the notes to the slides, a more detailed process was included. It is intricate and condensed to guide the committee plan their programme. This is a new committee and all its processes are new, but the Constitution Review Committee (CRC) could be used as a source but its processes are separate from that of this committee.

Consideration of Draft programme

The Chairperson suggested that two weeks starting on 25 February to 01 March be devoted to the committee meeting whereby a presentation summarising the report of the Constitutional Review Committee (CRC) be presented to the members to refresh their memory. The legal team that represented the committee during the Afriforum legal challenge will also brief the members during that presentation.

During week three and four, the issue of the policy framework of the Committee Bill will be discussed. The mischief and solutions thereto will be dealt with. It might be important to have a presentation from the Lands Claims Court because it has been dealing with some of thes issues for 25 years. It can share its experiences and stumbling blocks arising from the legislative framework dealing with equitable access to land reform and restitution. Experts will also be called to give insights and members are free to make some suggestions on the names of experts who can assist the Committee.   

If all goes well, at week five, instructions could be given to legal services to start the drafting. On week eight, legal services will present their draft to the committee which will then be deliberated on. Next step is for the committee to take decisions and then adopt the draft. Then the tagging process and sending the bill to the National House of Traditional Leaders and the respective provinces will follow. It is then published for comments, after receiving comments it will be sent to the House. 

Members were invited to make inputs on the draft programme produced by the management team.

Ms L Maseko (ANC) wanted legal services to work out the time frame and programmes with regards to the thirty days for deliberations. This will guide members as they deliberate.

Ms T Mbabama (DA) was worried about Mondays and Fridays earmarked for committe work as it  clashed with member’s constituency work. For those coming from the Eastern Cape, flights to Cape Town are scarce. Efforts should be made to reschedule committee’s programmes between Tuesdays and Thursdays if this is possible.

Mr H Mkhaliphi (EFF) said that even though she is not a member of this committee, she suggested that instead of meeting weekly, the committee could meet for a whole week to deal with the issues since it has been mandated to finish within the term of office of the present Parliament.   

Mr S Mncwabe (NFP) said the committee is running against time and allocating time just to deal with the court order brought by Afriforum is counterproductive. Why not add another activity in the time allotted to the presentation of the court order because some members were in court. Some members mentioned public hearings, is it necessary to be included?

Ms Semenya suggested that this committee being an Ad Hoc one, meet on Fridays because most other days are occupied with activities of Parliament.

Mr M Filtane (UDM) expressed concern about the proposed engagements with the Lands Claims Court and identified experts on the challenges they encountered. The problem is whether the the challenges identified by the Lands Claims Court is intended to influence policy directions. The same thing applied to the identified experts and who identified these experts.

The Chairperson explained that the Land Claims Court’s mandate has, in a large measure, been guided by section 25 of the Constitution. It has dealt with land claims and related matters such as security of tenure with respect to farm workers. Given that section 25 is being amended, it will be good for the court to present to this Committee what in their view are areas to look at in this amendment. The management committee is also open for advice from members as to other persons that could further contribute and add value to the work of the committee.  The committee’s mandate is clear, the House told the committee to amend but the committee is obliged to report what came out of the consultations it undertook.

Mr Mncwabe said, on the issue of experts, the Committee should take only cognisance of experts who would not reopen the debate. Only progressive experts should be consulted such as the Deputy Judge President of KZN, Judge Masondo, because he has written extensively on traditional courts and land issues. The retired justice of the Constitutional Court, Justice Dikgang Moseneke, should also be considered. These are patriotic experts who can help this Committee.

Ms T Mokwele (EFF) looked at the draft programme and suggested that the Committee should compress  it to such an extent that that it could accommodate five presentations and also specially use Fridays for its work. All presentations involving court rulings, Bills should be heard in week one while other issues dealing with contents and legal matters should be in week three. The NCOP should also be given enough time to deliberate on the draft Bill that will come from NA.

Mr Maila said that the Committee supported the outlined programme in principle but members had to factor in court challenges because those who took the Xonstitutional Review Committee to court are not taking the issue lying down as they might as well take this Committee to court too. 

Mr Smith said that the Committee today should develop a wish list and allow the chair to populate it. Retired judge Albie Sachs should also be listed as one of the experts to be considered. The chief whips should be consulted so that members can be excused to attend committee duties after 20 March because by then they are expected to be doing constituency work.

Ms P Ngwenya-Mabila (ANC) supported adoption of the programme in principle and also proposed that Agri-SA and the Legal Resource Centre be called as experts.

The Chairperson also added Nkunzi Development Association as experts to be invited because of the work they do with farm workers. She emphasised that the names mentioned so far are not exhaustive. More reflections should be done taking into account gender parity. There is broad consensus in the meeting with suggestions on compressing some of the presentations so that more traction could be gained in terms of time. The constitution drafters could also be brought in to know what their intent was in putting his section into the constitution.

The meeting was adjourned. 

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