The Ad Hoc Committee met to gather information that would guide the Committee in its work. Presentations focused on the AfriForum court case, a summary of the Joint Constitutional Review Committee Report and presentations by experts on land reform and constitutional development.
Members were informed that the AfriForum court case was divided into two parts. Part A was an urgent interdict which sought to suspend the decision of the Joint CRC taken on 15 November 2018 on the review of section 25 of the Constitution. The organisation also wanted the court to restrain the Joint Constitutional Review Committee from submitting the report to the National Assembly (NA) and to the NCOP until Part B was finalised. Part B was a request for the court to issue a declaratory order declaring that the report of the Joint Constitutional Review Committee and its decision to adopt the report was constitutionally invalid and directed the court to provide a just and equitable remedy setting aside the decision and the report and remitting the report to the Joint Constitutional Review Committee for re-consideration and inclusion of the excluded submissions. The High Court dismissed Part A of AfriForum’s application which meant that the urgent interdict to prevent the adoption of the Joint Constitutional Review Committee Report was dismissed but directed the Parties to agree to a timetable in order to bring Part B before the Court. The programme would allow for the further handling of the Review Application. Since then the National Assembly had resolved to adopt the Joint Constitutional Review Committee report and had formed the Ad Hoc Committee to Amend Section 25 of the Constitution. The view of Senior Counsel was that the matter was moot on the basis that the challenge had been overtaken by events.
The key observations of the Joint Constitutional Review Committee were presented, including observations showing the reasons why land reform was such an urgent matter and that the State should develop a clear strategy for the land reform process. The Committee had observed that the Constitution implicitly stated that land expropriation without compensation was a legitimate option for land reform, but needed to be made explicit. Some of the impediments to the current land reform regime were policy uncertainty, failure to implement, biased land audit, paying for stolen land, lack of political will, corruption and failure of the oversight function of Parliament.
Members were reminded that Parliament expected the Committee to make explicit that which was implicit in the Constitution, establish a mechanism to effect the necessary amendment, ensure that a Constitutional Amendment Bill was tabled, processed and passed before the end of the Fifth Democratic Parliament.
The first expert to present was a former Constitutional Development Minister who assured the Committee that it was not illegal to amend the Bill of Rights. He highlighted tht the Constitution gave minimum requirements to be followed before an amendment could be made. He emphasised the weightiness of the procedure. Part of Amendment was the legal process and the other part was the public “legitimacy’ of the Amendment. There had to be a long gestation period and the process to date could not be faulted. The Committee needed to communicate what it was doing, and not doing, to reassure the public and investors. He also informed the Committee that section 25 was not drafted to protect and appease white people who held land but to ensure that when black people did own property, there was no danger that that land could be taken away in the future. Therefore, in making the Amendment, the Committee had to make sure that people did not live with the insecurity of knowing that land or property could be taken away at any time.
Members asked whether it was possible to deal with land and not with the water side of it. What had prevented the drafters of the Constitution from explaining explicitly that expropriation without compensation was possible? Why did it have to be dealt with at the current time? There would have to be a cut-off point somewhere. Was 1913 the appropriate cut-off point? Would the former Minister support any dispensation where there was no restitution?
The second expert was a retired judge of the Constitutiona Court. He presented four points that he considered important: the Amendment as such; the necessary legislative programme to give meaning, substance and direction to the change in the Constitution; the need to relook at land reform and property law generally in the context of South Africa; the role of the courts - there had to be an ultimate voice of the court to ensure that the Administration did not decide for itself who would get what. The judge was alarmed by the proposal for the adoption of the Amendment by 20 March 2019. He thought the target date of 20 March was not acceptable to the process, considering what had to done.
The judge favoured a preamble in the Amending Act which set out why the Amendment was necessary and would guide future generations and the courts and indicate exactly what the intention was in amending the Constitution. He expanded on the notion that there was a need to create a property law regime in South Africa which took into account the desire by black people to have title deeds to their own land and the African culture of stewardship of the land. A new property law, as revolutionary as sectional title was at the time of its introduction, could take the current context into account and allow for a process of land transfer that would begin immediately but would slowly transfer rights from one party to another.
The judge added that every democrat in South Africa would say that the judiciary had played an astonishingly significant role in maintaining certain core values. There had been a vision of a Constitution that guarded against corruptibility and the judiciary had done its work. Sometimes Parliament felt the judiciary was too obtrusive, but it had held the line.
Members, noting that the Expropriation Bill that would deal with the ‘how’ of land reform and that the constitutional Amendment was not the be-all and end-all of it, asked if that would allay the judge’s fears of the laconic approach to an amendment being inadequate. How did one maintain nation building? Was it not impossible to reconcile the two sides without some saying that Parliament had bent over too far? Members also noted that there was a cry about the rights of the girl-child when it came to access to land. Why was a girl-child only able to get land by marrying? Why could she not have land in her own right?
The third expert had been a member of the High-Level Panel under the chairmanship of former President Motlanthe and was a member of the Presidential Advisory Panel on Land Reform. She argued that the Constitution was not to blame for people not getting land. The problem was that there was no jurisprudence in terms of section 25 of the Constitution. The Bill of Rights mandated land expropriation in the interests of land reform. It did not require market-related compensation, but any compensation was to be ‘just and equitable’ which meant that any expropriation was to be addressed on a case-by-case basis. The problem was not the Constitution, but the failure to use it, so she queried how an Amendment to the Constitution would take the process forward.
The land reform expert suggested that there were four scenarios according to which land reform could take place in South Africa currently, but she referred the Committee to the Brazilian Constitution that saw land as having a social function. It did not criminalise land occupations of vacant land, but where that land was not being used for a social function, the state could withdraw the right of those people to occupy the land.
Members asked how one dealt with the fact that some people had received government subsidies for their land in the past. Was the intelligentsia aware that there were less than 6 000 cases outstanding from the original claims in 1998? How could the intelligentsia quantify restitution when they got the figures wrong?
Members asked if one of the weaknesses of the redistribution section was that it was demand-led. The issues of claiming land were easy to relate to but redistribution was different. Did one need a different policy? How had the High-Level Panel approached the matter? What would be an appropriate mechanism?
The Committee did not have time to listen to the fourth expert, a land valuer, and he was invited to speak at the next meeting.
The Chairperson welcomed Committee Members. Mr Valli Moosa, a former Constitutional Development Minister, who had humbly agreed to present to the Committee.
Committee Minutes dated 21 February 2019: Mr S Mncwabe (NFP) was seriously concerned as he had been noted as Ms S Mncwabe. The error was corrected. Mr P Mnguni (ANC) noted that the Chairperson had opened the meeting and not the Committee Secretary. The adoption of the minutes was
proposed by Mr M Maila (ANC) and seconded by Mr Mncwabe.
The Chairperson stated that the decision had been to gather presentations from the parliamentary legal advisor on the AfriForum court case. The Content Advisor would present a summary of the Joint Constitutional Review Committee Report. Thereafter, the Committee would receive presentations by experts. The Committee programme only had two items on the programme, but it had been decided to add the briefing by the experts to the agenda.
The Chairperson informed Members that she had consulted the Programme Committee on meeting dates but almost all Committees were meeting regularly, which impacted on Members, so the only day available for meetings was a Friday.
Briefing on High Court Application: AfriForum Non-Profit Consortium (NPC) v Chairperson of the Joint CRC of Parliament and Others
Mr Nathi Mjenxane, Legal Advisor, Parliament’s Constitutional and Legal Services Office, indicated that he would present on the AfriForum matter.
Mr Mjenxane began with a brief sketch of the background. Later the Committee would get a report from the Constitutional Review Committee (CRC) that would indicate the processes that had taken place there. The resolutions of the National Assembly and the National Council of Provinces (NCOP) were known to Members. That had led to the process of the CRC looking into Section 25 of the Constitution. The CRC had determined how it had to go about its work and had agreed upon a truncated time period. That contested with the significant public interest in the matter before the CRC. What immediately became clear to Committee management was that there were capacity constraints and a decision was taken that a service provider be appointed to bolster the capacity of the Committee to do the work. A service provider was appointed and worked under the direction and management of Parliament. The work of the Committee was concluded, and the CRC adopted its report. Immediately after that process, AfriForum, a non-profit consortium, served papers which cited one Chairperson of the Joint CRC, the second respondent was the Speaker of the National House of Assembly and the third respondent was the Chairperson of the NCOP.
Argument of AfriForum
The matter of AfriForum was divided into two parts. Part A was an urgent interdict which sought to suspend the decision of the Joint CRC taken on 15 November 2018 on the review of section 25 of the Constitution. It also wanted the court to restrain the Joint CRC from submitting the report to the National Assembly (NA) and to the NCOP until Part B was finalised.
Part B was a request for the court to issue a declaratory order declaring that the report of the Joint CRC and its decision to adopt the report was constitutionally invalid and directed the court to provide a just and equitable remedy setting aside the decision and the report and remitting the report to the Joint CRC for re-consideration and inclusion of the excluded submissions.
The grounds on which AfriForum based its challenge was, firstly, that the work for CRC was done by a service provider whereas it should have been done by the CRC. The service provider had no credentials to do the job, and the appointment of the service provider was irregular. Certain submissions had been nullified and excluded and that had constituted a breach of the Constitution to facilitate adequate public involvement. On that basis, AfriForum wanted the report of the service provider to be set aside and that the report itself to be declared irregular.
In response, Parliament had argued that the right to public participation had been given effect to and that the CRC’s report was neither binding nor determinative but merely began the process. There were no legal consequences flowing from the CRC report. The judicial intervention was premature, and the High Court had no jurisdiction in line with the separation of powers. Parliament had to be given space to do its work and the High Court had no jurisdiction as the challenge was based on section 59 of the Constitution which set out the requirement of Parliament to facilitate public involvement in the legislative process. That matter could only be heard by the Constitutional Court. Parliament also argued that the appointment of the service provider stemmed from an appointment to assist Parliament and not to take the role of Parliament.
The High Court’s decision
The High Court did not grant a written judgement but verbalised its order. The High Court dismissed Part A of AfriForum NCP’s application which meant that the urgent interdict to prevent the adoption of the CRC Report was dismissed but directed the Parties to agree to a timetable in order to bring Part B before the Court. The programme would allow for the further handling of the Review Application.
Parliament had provided the entire record of the CRC to AfriForum NPC so that it could further prosecute the review application if it wished to do so. It was common cause that the National Assembly had adopted the CRC report and the Parties were in the process of agreeing to a timetable.
The NA had resolved to adopt the CRC report and had formed the Ad Hoc Committee to Amend Section 25 of the Constitution. The view of Senior Counsel was that the matter was moot on the basis that the challenge had been overtaken by events. The Legal Advisor added that the AfriForum decision had no bearing on or impediment to the work of the Committee and referred to the Midi Television Supreme Court of Appeals decision on the common law principle of sub-judice.
The Chairperson stated that the briefing was for Members to understand the matter and the two parts of the AfriForum court case. The second part was still a matter that had to be deliberated on. The information would assist the Committee in understanding the situation and how to go forward. There was not much in relation to the second part because it had not yet been deliberated upon. The discussion on how to move forward would be taken later but she would accept questions for clarity.
Mr Mncwabe said he had been there for the entire process and the report was a true reflection of what had happened.
Mr Maila agreed with Mr Mncwabe that it was an accurate report.
Summary of the Joint Constitutional Review Committee Report
Mr Shuaib Denyssen, Content Advisor, summarised the Joint Constitutional Review Committee Report.
The intention was to refresh the memories of Members on the key aspects of the CRC Report.
The Content Advisor began by presenting the key agreements (later amended to key observations):
- Inequality and skewed land ownership continued to exist.
-The dispossessed expressed the view that very little was done to redress the situation.
- Security of tenure for farm workers had to be assured.
- Corruption, an insufficient budget and lack of capacity had been stumbling blocks.
- The State should develop a clear strategy for the land reform process.
- The Constitution implicitly stated that land expropriation without compensation was a legitimate option for land reform, but needed to be made explicit.
Because the NA and the NCOP had taken a decision that the ad hoc Committee had to process an amendment to section 25, the Content Advisor presented the divergent views on the topic.
Opponents argued that:
-the whole of section 25 was an impediment to land reform and subsections (1), (2b) and (3) were impediments because they protected “illegitimate” property rights acquired under the colonial and apartheid regimes.
-under certain prescribed circumstances, section 25 allowed expropriation of land with zero compensation but did not guarantee property rights in absolute terms.
-the failure of land reform was not a failure of the Constitution, but a failure of both legislation and its pragmatic application by the Executive.
-government required further guidance through regulation and Practice Notes to ensure proper implementation.
-section 25(6) provided for traditional communities to restitution of property. The communal land under the custodianship of the traditional leaders must not be expropriated.
The Content Advisor listed some of the impediments to the current land reform regime as policy uncertainty, failure to implement, biased land audit, paying for stolen land, lack of political will, corruption and failure of the oversight function of Parliament.
Finally, he reminded Members that Parliament expected the Committee to make explicit that which was implicit in the Constitution, establish a mechanism to effect the necessary amendment, ensure that a Constitutional Amendment Bill was tabled, processed and passed before the end of the Fifth Democratic Parliament.
The Content Advisor reminded Members that it was only a summary and so it did not capture everything, but he believed that he had captured the main arguments.
The Chairperson noted that it was not the full detailed report. The current Committee was not an extension of the CRC, but as the Committee entrusted to do the Amendment of section 25 arising out of that process, it was important to understand the arguments that arose and the understandings of section 25 of the various constituencies.
Mr Maila said that generally he agreed with the summary, but he asked that the word “agreements” on page 1 of the Joint CRC report summary be changed to read “observations” as the Joint CRC had observed those instances, but they were not agreements.
The Chairperson agreed with his request.
The Chairperson said that she had spoken in a forum on land matters the previous day but had not spoken on behalf of the Committee. Instead, she had addressed the question: what did land reform represent? There would always be land restructuring in any society. Land reform was taking place in a number of countries and was dealing with the mischief in a society at a particular time. A country had to ask what was the mischief?
She had referred to the coming German Referendum on housing. Germany was dealing with the mischief of inadequate housing in Berlin and was looking at acquiring some of the 200 000 properties of the bigger landlords in Berlin and turning their property into social housing. The United Kingdom had the same problem in London regarding a shortage of housing that needed to be addressed. She referred Members to a paper written by Tony Blair. In each state of the United States, the land issue was addressed when the state faced a particular problem, such as shortage of housing or industrial space.
The point was that those issues happened at any time. SA’s mischief was policy uncertainty, slow pace of land reform, a continuing lack of tenure security, etc. The Committee’s mandate was to address the mischief through the Constitution and, as the Department of Public Works was doing, through the Law of General Application, with the Expropriation Bill. The Department of Rural Development and Land Reform was looking at an omnibus Bill.
South Africa should not fear land reform because the land question might come back again with some other mischief. A workshop of universities in January 2019 had identified that institutional frameworks had not helped the country to deal with land reform.
The Committee had to make a proposal to Parliament on how to address mischief.
Presentations by Experts
Presentation by Mr Valli Moosa, former Minister of Constitutional Development
Mr Moosa thanked the Chairperson for inviting him. He had spent nine years of his career working full-time on drafting and implementing the Constitution. His presentation went beyond legal and was about constitution-making. The Committee had an enormous and very weighty responsibility in its role of constitution-making. After 25 years, it was the first time that the country was considering amending the Bill of Rights. When one involved oneself in constitution-making, one had to develop something that would last 25 to 30 years. It was not easy when dealing with an emotional question like land, and also when parties were in the throes of seeking votes for election. The weight of what was being done was so important.
On 6 December 2018, Parliament had said to the Committee that the general public did not know what Parliament was doing. If they had known, they would have had the same view as the Chairperson had regarding the international issue. An issue was unresolved and therefore it was the responsibility of Parliament to resolve it.
The Constitution had taken six years to draft. From 1994 to 1996 he had led the ANC delegation and so he knew every section well. Very important at the time was the legitimacy of the Constitution. Most of the political parties in Parliament were not very happy with it, other than ANC but they all voted for it. The Constitution was the most legitimate “institution” in SA. The Constitution was, and is, the most trusted brand in SA. When the country had had problems with elected leaders gone rogue, people turned to the Constitution. It was a good constitution and when it was adopted in 1996, it had been the most modern in the world, but it was also legitimate because of the process that had been followed.
At CODESA a decision had been taken that negotiating parties could not only be men because the Constitution would not be for men only. The parties had had to scramble around to find women to include in negotiating teams. Another radical decision was that the entire process was to be open to the public. The Constitution was not to be drawn up above the heads of people or behind their backs. The drafters were concerned that they would be overwhelmed by the number of attendees each day, but after the first few days, it turned out that only a small number of people observed the deliberations each day.
It was not illegal to amend the Bill of Rights. The Constitution gave minimum requirements to be followed before an amendment could be made. But, if they were followed, an amendment was perfectly legitimate. However, he emphasised the weightiness of the procedure. Part of the Amendment was legal process and the other part was the “legitimacy’ of the Amendment. The Committee had to think about a process to ensure public legitimacy. The Committee had to ensure that there would be a long gestation period. The process to date could not be faulted. Now the Committee had to set the right precedent to make an Amendment to the Constitution.
Populist decisions were being taken all over the world. If a populist government decided in 10 years to change the Bill of Rights, the current Committee should have established a process for legitimacy of any change to the Constitution.
The second thing for the Committee was to communicate what it was doing and not doing. People were holding back on investments because they were worried that the new law would take their factories away. The Committee was only dealing with a sub-section of section 25 dealing with land. It was not a general change to the entire section on property. The Constitution knew that property went beyond land, but the Committee’s job was limited to land and that had to be communicated.
The Minutes of the sitting in the House on 6 December 2018 stated that the Committee was to amend section 25 to make explicit what was implicit in the Constitution. It was not a general change to the Constitution. The Chairperson’s reasons for the Amendment were valid. The point was to make the sub-section clear. It was not well-understood out there.
He had read the Draft Expropriation Bill from the Department of Public Works. The Bill defined new protocols relating to land expropriation and outlined the legal basis for Constitutional Amendments. The Bill noted that five ‘types’ of land may be expropriated without compensation, if it was in the public’s best interest.
Lastly, Mr Moosa stated that section 25 was not drafted to protect and appease white people who held land. Under apartheid, it was illegal for an African person to own any land. More humiliating was that black people were simply rounded up and taken to some other place because the land had been declared white land, often in the middle of the night. Security of tenure and ownership of land was a major cause of the struggle.
Now that black people did own property, nothing should be done to take that land away again. One did not want the danger that an African person’s land could be taken away in the future. Therefore, in making the Amendment, the Committee had to make sure that people did not live with the insecurity of knowing that land or property could be taken away at any time. That was a big challenge. The Committee did not want that. That was the big challenge. How did the Committee enable black people to acquire land without taking the process backwards?
Mr Moosa stated that there was a lot more that he could say but he had run out of time, so would conclude at that point.
The Chairperson thanked Mr Moosa for his own lived experience and for indicating what the Committee needed to take note of in taking the process forward. She agreed that the weightiness of the task was enormous, as were the consequences of amending the Bill of Rights. But Mr Moosa had also pointed out how the process would influence processes in the future, nationally, locally and even internationally, and how, by default, a sense of tenure insecurity could be created for those who had benefitted from the Constitution of 1996. She invited Mr Moosa to engage in the public processes that the Committee would soon be having and to present his ideas there.
Ms G Breytenbach (DA) thanked Mr Moosa for his insights and asked if Members could have a copy of the points that he had not yet made.
The Chairperson asked Mr Moosa to put his presentation on paper.
Mr Moosa agreed to do so.
Mr V Smith (ANC) noted that Mr Moosa had said that he knew every line of the Constitution. Mr Moosa had said that the Committee was dealing with land and not property, and that the distinction between land and not property had to be made. But, he was wondering whether it was possible to deal with land and not with the water side of it. Subsection 25(8) of the Constitution said: No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1). He asked for Mr Moosa’s opinion. Was land the solid in the mud? When the Committee dealt with it, was the water to be excluded. He was referring to agricultural land. Was water to be excluded? What had been the thinking at the time of drafting the Constitution?
Mr Mncwabe appreciated the explanation about the perception that the land section was to appease a certain race at that time, and he was happy to have that clarified but what had prevented the drafters from explaining explicitly that expropriation without compensation was possible. Why had it not been stipulated? There had been parties at the time, such as the Pan-Africanist Congress, that had been very strong on the issue of the return of land. Why had it not been very specifically stipulated in the Constitution? Why did it have to be dealt with at the current time?
Mr Mnguni also appreciated Mr Moosa’s input. What he had done had been done in his position as a leader and a cadre of the organisation, and one should never stop thanking those had been involved for taking the country through to where it was in the present day. Scholars and others debated the Constitution process and some people thought that the ANC should have gone the insurrection route but all wars end in negotiations. Some said that negotiation and the Constitution had been a sell-out, but it was not. It was necessary to talk about those things. He appreciated the clarification of the reasoning behind the land clause and was pleased that it was not a sell-out clause
Mr Mnguni asked about the 1913 Native Land Act. He could contextualise his question, but the Chairperson wanted him to be brief. There would have to be a cut-off point somewhere. Some people believed in evolution. Where would Mr Moosa start, and could he put 1913 in context? What was his take? Some people made nonsense of 1913. But from where he sat, he made sense of it fully.
The Chairperson interjected, asking Mr Mnguni not to cast aspersions.
Mr Mnguni agreed that he was a politician and was politicking around 1913.
The Chairperson informed him that he should just ask Mr Moosa to say something about 1913.
Mr Mnguni asked the Chairperson to be patient with him as these were pertinent issues. He knew, for a fact, that the Committee would be asked to say something on 1913. The other point was on restitution. There were three legs to land reform: restitution, redistribution and security of tenure. Would Mr Moosa support any dispensation where there was no restitution? He would point to the pain of people from District 6, etc. It was a substantive issue and the Committee would be asked to say something about it.
Mr Moosa explained to Mr Smith that the water question had a different set of considerations. The important thing for the purpose of the Committee was that there was no private ownership of water in the country. People could be allocated rights to water, so it was not an issue for the debate at hand. It did not fall into the same category. It was not as if a private person owned the Vaal Dam. Everyone had a right to water. He explained that when it came to a dam on a farm, the dam belonged to the farmer and he was given the right to use certain quantities of the water in the dam, but the water was not owned by him. Unfortunately, the law was not always adhered to. However, it would not make sense to expropriate land and not give water rights. That would not make sense because agriculture was impossible without water.
Mr Moosa referred to the question of why the Constitution had not explicitly made reference to expropriation of land without compensation in the first place. In the debates that were taking place at the time, the first debate was whether anything should be said about property at all. Secondly, was it a human right? Should it be in the Bill of Rights? It was an important and legitimate debate. Many constitutions in the world said nothing about property. In the SA Constitution, the property clause was included because ownership of property and security of one’s own home was a very important element of the struggle. He recalled pass checking and the humiliation of people being thrown in the back of a van. The pain of not being allowed to be somewhere or to own something could never be forgotten. The question was: could that ever happen to us again? That had led to the property clause in Bill of Rights.
The other issue was the negotiation with the apartheid enemy for whom land security was very important as security of land, especially farming land, was very important for a big part of their constituency. There was a dream of nation-building without racial barriers and anything that helped nation building without undermining the right to land and security had to be done. The willing buyer and willing seller was proposed but the state did not have that kind of money and that would have meant that the state could never buy the land that was needed. That was why there was no reference in the Constitution to willing buyer and willing seller.
Mr Moosa truly believed that the lack of land reform was not because of section 25. He would not say why he thought it had not happened because he did not want to end up attacking his own party. That was not what an expert was invited to do. Section 25 might have become a peripheral obstacle, but it was very peripheral. He would say so if he thought that the Constitution was wrong, but he believed that it was the right thing at the time. He was very protective of the Constitution, but he recognised that the time had come to consider a change. The change was being proposed after 25 years and it was not without thought and consideration. He informed the Chairperson that he definitely would attend the public hearings.
The question of the 1913 Land Act had loomed large in the freedom struggle. It was the big thing, and the most visible manifestation of theft. It was neat and easy to go back to that date because things could be traced pre- and post-1913. For many decades, the ANC, by its own pronouncements, had said that it was the 1913 Land Act that brought Africans together. The date of 1913 was a marker but there was no magic in that date which suggested that something that had happened in 1910 did not count. He had heard the President talking about 1913, but it could not be a firm dividing line.
Mr Moosa asked if Mr Mnguni could repeat his question.
Mr Mnguni explained that he had asked about land restitution. The Constitution recognised the three aspects of land reform. Restitution was about land that had been confiscated, so he was asking about the validity of land claims and land restitution in principle. At the present moment, there were some who were saying that restitution was out of the question. He did not want to know about modality and mechanisms but whether, in principle, there should be restitution.
Mr Moosa replied that the institutions and mechanisms set up around land claims and restitution were fundamentally part of a national programme to bring about land reform. It was not linked to proposed changes to section 25 but it was a programme that could not be faulted. The problem was the institutions that had been charged with the process had been unsuccessful. If a group of people could say “This is our land and this is the date of expropriation and we want it back”; that group of people should get it back. It was an administrative problem. Those institutions had never been underfunded. They had never even spent all their budgeted funds. The country still needed those institutions, regardless of what happened to section 25.
Mr Moosa knew that it was not within the scope of that Committee, but Parliament had to put much more focus on those institutions where there were serious allegations of corruption. The section 25 Amendment had taken up a lot of energy, but the same amount of energy had to be put into fixing those institutions. There was a great deal of energy in public debate but not much energy in getting things done. His message was not to take the focus away from land reform. He suggested that the Committee should try to influence Parliament to get that work done properly. If those institutions worked, it would give Parliament space to complete the legislative processes relating to section 25. If those institutions were not working, the Committee needed to put pressure on Parliament to get them working.
The Chairperson suggested to Mr Mnguni that if he went to the 1993 Interim Constitution, he would see that clause 121 provided for restitution and gave land rights. It also indicated that legislation had to be promulgated and the Land Act of 1913 was put specifically as the cut-off date. Possibly important for the other Committee that Mr Mnguni served on was to look at the Expropriation Act of 1975. Specific things were addressed, such as how court orders should be dealt with and they would be treated. It was important to go back to that legislation. Parliament was re-looking at the Expropriation Bill and that did not need to wait for the section 25 issue.
The Chairperson welcomed Judge Albie Sachs.
Presentation by Judge Albie Sachs
Judge Sachs joked that he had been suffering from a disease called separation of powers for 20 years and now he was sitting next to Valli Moosa in Parliament, so the separation of powers was coming together. He was envious of the way that a mathematician like Valli Moosa could capture the Constitution in a way that lawyers, with all their studies, could not. He also referred to Colin Eglin, who had been a land surveyor, and Pravin Gordhan who could articulate their views on the Constitution in a way that he wished he and other lawyers could.
Judge Sachs asked the Chairperson whether he should make a statement, or whether he should just answer questions.
The Chairperson explained that Mr Moosa had taken the Committee back into the process of constitution-drafting and some principles to be addressed in that process and then Members had posed some questions.
Judge Sachs stated that he was there to lead a little bit of a fight-back for legal thinking. There were four points that he would like to raise in response to the question sent to him:
-the Amendment as such
-the necessary legislative programme to give meaning, substance and direction to the change in the Constitution
-the Albie proposal – his temporary name for the need to relook at land reform and property law generally in the context of SA
-the role of the courts as there had to be the ultimate voice of the court to ensure that the Administration did not decide for itself who would get what.
When the Constitution was being drafted, the intention was to make it something that would remain, in fair weather and bad weather. The Constitution was something not to be rushed and not to be changed without deep consideration. There had to be a sobriety in the approach to be adopted. He was alarmed by the proposal for the adoption of the Amendment by 20 March 2019. He thought the target date of 20 March was not acceptable to the process, considering what had to done.
But generally speaking, there were two ways to do the Amendment. It could be a laconic Amendment with a change to one or two words, or there could be a moment of reflection in SA and one of importance in true nation-building so one wanted the Amendment to have true resonance. One could have an Amendment with a preamble which set out why the Amendment was necessary, and which would guide future generations and the courts, and which would indicate exactly what the intention was in amending the Constitution. The Preamble would not go into the Constitution. The danger with the preamble approach was fighting over every word, but if one could get a preamble similar to the end of the opening sentence in the Constitution that explained the need to deal with the massive historical injustice, but in a context which was productive and got people getting involved in the land, so that it was not just a transfer of title from one party to another. He personally favoured the preamble approach. It was dignified, and helpful to the courts. The preamble to the Amendment could be an opportunity for setting down the points already made in the wrap-up session. On the other hand, the Committee might find the technical wording difficult enough and one did not want fighting over a preamble.
Judge Sachs noted that it was a great moment in SA’s history. It was disruptive because one needed the disruption to deal with the matter of land reform. He had ideas where the wording should go in section 25 to be neat, tidy and coherent but he was not going to offer his ideas about that. However, if there was a decision to go that way, he could offer advice and clear words. If the words simply said that Constitution allowed expropriation without compensation; that would be totally inadequate.
Judge Sachs stated that the High-Level Panel (HLP) Report had provided some valuable information. 65 000 to 75 000 land claims had been processed and people had got restitution, and it had been a very valuable process. When the drafters had chosen 1913 for restitution, i.e. returning specific land to specific owners, that desire for restitution had arisen out of the forced removals of 1970s and 1980s, and the drafters had wanted the people to get their land back, which they had. The country had to build on the positive achievements of the early days without diminishing the failures that came afterwards.
The Committee had to outline some sort of legislative programme. Whether it was one or more land reform laws or whether existing laws could be amended, he did not know as that was a parliamentary issue. The HLP report spoke about silos and of people working separately in their different sectors. There had been a complete lack of coherence in the land reform process.
Thirdly, there was a need to create a property law regime in SA. In most countries, property law was based on Roman Property Law or Civil Law land developments. Later the German system was transferred to other countries in Asia and the Middle East. Britain had colonised countries and had spread the British Land Law to those countries.
He had been taught that the Roman Law system was much neater, clearer and more coherent and adapted to the needs of society and commerce as it had adapted in Europe and then in SA. The system included things like land ownership, usufruct - which was a lifetime use of property, rights of way or servitudes, tenancies, etc. All of those basic concepts about property law had been affected by statutes but all were based on an interest in land of full title and less than full title. He had learnt as a student that everyone who owned land owned the structures on the land. They could not be separated. A few decades ago, the money-making capitalists (capitalists in a technical sense) had introduced section title so that one could own a flat but not the land, which went against 2 000 years of Roman Law. It was a violation of everything that lawyers had been taught, but was now an accepted form of ownership in SA.
Just as sectional title had to be introduced to re-conceive the nature of ownership, SA had now to find new concepts of land ownership and use in the country. The question of ownership of the communal or trust system was whether the land in trust was owned by the trust and could be rented to people or whether the people owned the land. He was getting a strong impression that people wanted the sense of security of owning their land. Like anyone else, they wanted to be able to lease the land if people wanted to mine it, etc. People wanted title deeds.
Judge Sachs said that he was also told that putting up a fence was against African culture and there could be no title deed because land was for the people and the people were simply stewards of the land. It was much like the modern ideas about conservation. However, title meant that one had collateral. Security of land was important for funding, but security could very quickly turn to insecurity as the land could be lost. The country was trying to fit land into the old boxes of land determined by Roman Law, but the country needed new boxes, and not just one new box. One could allow for a shared interest in the same piece of land in a way that Roman Common Law and African Common Law could not accept. It would take new language in law.
Transferring land from white ownership to black ownership would take land away from white owners and give the title to black people, or land could be taken for the state which would lease out the land. However, his vision was that tenants that had long interest in a piece of land and had worked on the land and needed recognition could be given a small percentage of ownership but with an incremental increase of land ownership. It might be that the white owner saw sentimental value in a farmhouse or animals, and one had to consider that so one could have mixed ownership that progressively became greater ownership for blacks and less for whites. That had the advantage of the transfer of skill even while the farmworkers had a feeling that they were secure. The compensation for the land could come out of the proceeds. That would mean recalibrating the rights of land ownership. To do that would require a lot of thought. Perhaps a team could be set up to work through new concepts as the Law Reform Commission could take a very long time to perform a task such as that.
Lastly, Judge Sachs had recently seen a statement to the effect that the Committee was keen to avoid the courts playing too big a role in the land reform process. The courts were seen as a delaying tactic, but it would be very dangerous to remove the courts from the land process. Every democrat in SA would say that the judiciary had played an astonishingly significant role in maintaining certain core values. It was not an accident. The values were built into the Constitution because it was drawn up, not just for the good people like Nelson Mandela, but for all people. The ANC stalwarts had lived in countries across Africa and throughout the world and they had seen how easy it was for people who had fought for freedom to become corrupt. There had been a vision of a Constitution that guarded against corruptibility. The judiciary had done its work and sometimes Parliament felt it was too obtrusive, but it had held the line. As seen in so many countries the temptation to give land to family, friends and contributors to the party was enormous. The only independent bulwark was the courts. Of course, he added, that the only thing was to make sure that the rich and powerful could not tie up the process in court.
The late Chief Justice Ismail Mohamed had said that there were some fundamental features in the Constitution that could not be changed by even 100% majority because one would not be amending the Constitution, but undermining the Constitution and destroying constitutionalism. Parliament could create a constitutional crisis by changing the Constitution and ignoring the courts.
The Chairperson thanked Judge Sachs for giving such incisive input and advice and also for sharing his reflections on some matters that might require another process to address some of the mischief and problems in relation to land matters.
She opened the floor for questions of clarity.
Mr Smith appreciated the contribution by Judge Sachs. The mandate of the Committee was to make explicit that land expropriation without compensation was legal. Judge Sachs had said that that would be inadequate. As things stood, there was an Expropriation Bill that would deal with the ‘how’. The constitutional Amendment was not the be-all and end-all of it. Would that allay his fears of the laconic approach being inadequate? Secondly, there was the theme of nation building, also raised by Mr Moosa. Mr Smith agreed with the notion of nation building but there were two extremes and one side could not wait any longer to appease others. On the other side, there were those who said that the farm was their whole life. The farm was their home, pension, job and security. So how did one do it and maintain nation building? He thought that it was impossible to reconcile the two sides without some saying Parliament had bent over too far. Was it possible?
The Chairperson asked if the Judge had meant that the preamble was to be a preamble to section 25 or a preamble to the section that dealt with the Bill of Rights.
She had also noted that he had raised the fact that there were multiple tenure systems in SA, such as freehold rights and customary rights. One of the issues for the General Laws of Application was to find a way of managing the tensions or finding a codification to manage the informal rights. The relationship of the land and how it was understood in the African spiritual nature of land rights for the dead and those who were still to come had to be addressed. There was also a cry about the rights of the girl-child when it came to access to land. Why was a girl-child only able to get land by marrying? Why could she not have land in her own right? Maybe there were long-term issues that needed to be dealt with in the SA jurisprudence.
Judge Sachs agreed that the change to the Constitution to explicitly authorise expropriation without compensation was enormously important in itself but if it was not followed through with meaningful changing of land reform, people would feel doubly defeated. It would be insufficient if pals were still benefitting. A laconic Amendment was one that said the Constitution should be amended by changing words from x to y. Or one could dress it up. It was not just a technical change. It affected the nation. He was not suggesting a preamble to the Bill of Rights because Parliament was not changing the Bill of Rights, but a preamble to the Amendment, giving the reasons for the Amending Act. Parliament could allow strong emotions and consensus-seeking to be incorporated in the Amending Act.
This Committee should not even attempt to say how but point out to the public and Parliament that it was just a first step, a guide to show there was a next phase in which something had to be done in terms of legislation. It would be more responsible for anybody reading the Amendment.
Judge Sachs noted that there was a question about nation building. He asked who had thought it possible that a united SA could be created after centuries of oppression, visible apartheid and leaders being locked up. But look at the Parliament. In the end the drafters had got it right. Many called it a miracle.
The first step to true nation building was to acknowledge the tensions on an emotional level and to find mechanisms for giving people realistic hope. His example of a new modality of mixed forms of tenure, different from what was there in law was the kind of thing that would give hope. People had to come up with a mobile, developing process. The farmer who said that it was his home, his life, his security and his pension and not just a piece of property had to be understood. There was a process in getting farmers to reconcile with the workers and seeing how the farmers could meet the workers’ needs. There could be commonly-owned land and privately-owned land, depending on the situation. It would not be a case of one size fits all. One needed much discourse directed to changing the interest of people in land in a productive way, but in a way that was not humiliating and did not imitate the behaviour of the colonialists.
Oliver Tambo had said that the ANC did not take its morality from those who had robbed its people of their land. One wanted land where all could contribute. Often there was a close bond between people on the land, between farmer and workers, but it was the question of ownership that was divisive. The new approach to land could allow for different responses and forward-looking white farmers could even contribute to the process, but not direct it.
When the multiple tenure systems and the new forms of land were being worked out, that would be the time to introduce a new non-sexist approach to land in accordance with the Constitution. The connection of women to the land was very insecure. Roman-Dutch Law had not given women security and the old forms of customary law deprived women of their right to land, despite their bond with land and the fact that women were the main workers of the land. The courts had already stated that customary law should be living customary law. At the same time, the environmental thinking and the African sense of stewardship of land would give more justice to the land itself. It was quite drastic in recalibrating laws of servitude etc, but it was not out of touch with the lived reality. It was not a revolution. The law would be responsive to the lived land reform. Those concepts had to be built into the very mechanisms of land reform.
The Chairperson thanked Judge Albie Sachs. She could hear similarities on fundamental issues from the experts. One similarity was the process. The Committee had to be mindful that it was not an easy amendment because of the nature of the right and how people felt about those rights. It was important to take the citizenry along and the Committee had to ask how one might create the opportunity for the nation to have another dialogue amongst the people. The legitimacy of the outcome of the process was important because one wanted the broad consensus of society. The introduction of new areas to be considered was helpful as one could give input by giving an agenda of other processes, legislation and so on that would need to take place.
The Chairperson informed the Committee that the next expert had been a member of the HLP. The Report of the HLP contained a substantive part on land reform. The same expert was a member of the Presidential Advisory Panel on Land Reform.
The Chairperson assured the Committee that whatever the Advisory Panel was doing did not detract from what had to happen. Other mechanisms should be taken into account, but land reform had to happen without delay.
Presentation by Prof Ruth Hall
Like the previous speakers, Prof Hall had a long memory of the process of land reform as she was writing her post-graduate thesis on land reform at the time of the CODESA negotiations. Farmers, banks and mines had been concerned about not only land, but also property. There had to be a clear logic as to whether land and other forms of property should be treated differently and if so, why and how?
ANC lawyers had argued that if the opposition wanted property, they would subvert that desire and so property rights in the Constitution were actually negative rights as section 25 explained how property could be removed. The lawyers had argued for property rights for the landless. The property clause meant that property was a right and not a result of largesse. It imposed a positive obligation on the state to provide the land. Geoff Budlender had said that the only way to achieve a balance about who owned and who did not, was about weakening the rights of those who did own property.
Prof Hall argued that the Constitution was not to blame for people not getting land. There was no jurisprudence in terms of section 25. The court had to be approached: it could not reach out and make judgements. She added that section 28 was an over-riding clause and the requirement that compensation should be just and equitable, could not impede the state.
It was important to bear in mind that there was a comprehensive analysis of land reform and that was in the HLP report. The Bill of Rights mandated land expropriation in the interests of land reform. It did not require market-related compensation, but any compensation was to be ‘just and equitable’ which meant that any expropriation was to be addressed on a case-by-case basis. The state had to expropriate to break the deadlock, to speed things up. The problem was not the Constitution but the failure to use it.
There were four possible scenarios:
-State custodianship of land would be under the general law of application and not a deprivation. It did not address redistribution; and was unclear about what problem was to be solved. No rent was being extracted from people. Vesting custodianship in the state was a deprivation of property rights in terms of a Law of General Application. That was EFF policy; not ANC policy. In that scenario no constitutional amendment was required.
-Expropriation without compensation in all cases and all being denied compensation would mean treating the poor in the same way as the rich and would mean black and white owners with different histories would all be denied any compensation. That scenario would violate the Constitution and even a constitutional change with a majority in Parliament would be rejected by the courts.
-Expropriation without compensation, in some cases, and with ‘just and equitable’ compensation in Section 25(3) had not been tested. Constitutional experts argued that the state might pay zero compensation where it was just and equitable to do so which meant appropriation had to be on a case-by-case basis. What was needed was law (such as the amended Expropriation Bill), policy, regulations and test cases to clarify the compensation regime. No constitutional amendment would be required.
-Expropriation with or without compensation, or with partial compensation, on a case-by-case basis but with a clarificatory amendment for political purposes. It would require amending section 25 to clarify, in the over-ride clause, that the requirement of compensation should not impede the state. It could be done by adding the words ‘including compensation’ to section 25(8). That scenario did not appear to resolve any practical problem, but was a political signal.
Prof Hall referred the Committee to the Brazilian Constitution that saw land as having a social function. It did not criminalise land occupations but where vacant land was not being used for a social function, the state could withdraw the right of those people to occupy the land.
She also believed that the consultative process had asked the wrong questions to the wrong people. People were asked about changing the Constitution, which was interpreted as ‘Do you want free land?” and the obvious answer was in the affirmative.
Beyond changing the Constitution, what could be done to assist land reform? Good signs would be the following:
-Expedite the Expropriation Bill
-Develop compensation policy
-Move towards a Land Records Bill
-Draft and expedite a Redistribution Bill
-Send test cases to the Constitutional Court
-Ensure rapid land release for urban land, and
-Strong political leadership, and fixing institutions
Prof Hall emphasised the idea of the social function of land. She expressed concern about institutional silos, but believed that the integration of departments would assist.
The Chairperson pointed out that the Presidential Panel had also picked up the problems about land administration, which would be an ongoing matter, and which was another gap in the system. All three experts had picked up on issues of policy, the need for a legislative agenda, and the dangers of opening up elements that might cause dispossession once more. How did one deal with overlapping rights, especially in urban cases such as backyard dwellers? Another issue was lodgers and the system of rental and lease. The category of rental and lease, or lodgers, was common in the African community. She referred to a particular claim in Limpopo. When the claim was about to be resolved, the six people who had stayed on the land as owners were upset that those who had been tenants on their land were being given the same rights to the land as they were being given. The principal of overlapping rights would have to be dealt with.
The lack of compensation needed to be addressed. The non-clarity of how one interpreted “just and equitable” was an issue to be dealt with. Subsection 25(3) presented the pointed issue of how one dealt with people who had been given subsidies for their land when there were no records of such subsidies. How did one deal with someone who had bought land from someone who had a subsidy? That was the point about needing deeper reflection on “just and equitable”
Mr Mnguni appreciated her presentation. He confessed to engaging with Prof Hall at least once a quarter. She was aware that they would differ sharply on restitution. Restitution was not a numbers issue but a rights issue. He referred to a 2016 court judgement that restitution was a fundamental right. However, in the space of the intelligentsia, restitution seemed to be juxtaposed. He was inviting comment in that respect. That was one aspect that was flawed.
Mr Mnguni said that it like a car, where one juxtaposed the mirror, the wheels, etc. He often found that high level thinkers made the mistake of thinking that restitution and redistribution could be juxtaposed. They also attempted to juxtapose other aspects of the land reform portfolio without understanding that there were different aspects and could not be juxtaposed. If one redistributed without restitution, whose land would one be redistributing – what about the person’s whose land that was claimed in restitution being redistribution. It was so unfortunate that the intelligentsia, in the general sense and not the hard sense, shied away from restitution because they believed that there were 19 000 cases, and it was being delayed, etc. He worked with restitution every week and there were less than 6 000 cases outstanding from the original claims in 1998. One high-level professor had said, the previous week, there were 19 000 cases outstanding. It was bad enough that they went the numbers route, but then they got the numbers wrong.
What about clinics, roads and access to water? If Prof Hall quantified things, how far were they? The argument was that 9-11% of land had been restituted. About 8% of claimants had taken the money and, as the original amount of land in black hands was 13%, one could say that about 30% land was now in African hands. He had quantified that in a scientific manner. How could one say that that was slow? Land acquisition could have been at maybe 35%, but could one have expected more? It was also a question of the budget, but he was not going there because the budget changed as it was influenced by the intelligentsia, politicians, society and so. The dictum was for funds to follow function. One could not begin with the budget. The budget should follow societal consensus.
In response to the Chairperson, Prof Hall said that the debate within society was now saying that land issues were not only about agriculture. Apartheid spatial planning had to be redressed. The Chairperson of the Presidential Advisory Panel on Land Reform, Dr Mahlati, had said that Land Administration should be the fourth pillar of the land reform package. There had been a systemic non-recognition of property rights and that had led to conflict. The Chairperson was correct in that overlapping rights had to be addressed but land administration was needed to help with getting that right.
In response to Mr Mnguni, Prof Hall said that she heard what he had to say about restitution not being just a numbers game. However, when compensation was chosen, those cases were not resolving land access. Some parts of land restitution were right, but others were not as they did not resolve land inequalities. Compensation redressed an historical grievance, but it was not addressing land rights. She was not denying restitution. It was a constitutional right. However, slow progress with land redistribution had made people think that the only way to make claims was through restitution. The Khoisan, at the recent Leaders Conference, had asked for the constitutional Amendment to turn back the clock several centuries prior to 1913. It was difficult to prove land rights from centuries ago, but no one could deny that the Khoisan had owned land and wished to re-assert their right to territory. The Land Expropriation Act empowered the Minister to allocate land, even if the claim did not meet the criteria but the Minister had no cash.
The Chairperson stated that Prof Hall had raised the experience of Brazil where land was seen as a social function. Given the experience of mushrooming informal settlements, how would one manage that process because people claimed land by going and staying there. There was also shack farming where farmers would allow people to build shacks on their farms and then go to government claiming that they could not evict the people and claim compensation. In the Brazil question, what were the positive elements of the approach and how had the state and cities dealt with it?
The Chairperson asked if one of the weaknesses of the redistribution section is that it was demand-led. The restitution of land had a clear process for re-claiming land but the process for re-distribution was not clear. Even if someone identified land, applying for a loan from the land bank was a challenge. Maybe the mechanisms were not in place. The issues of claiming land was easy to relate to but redistribution was different. Did one need a different policy? How had the HLP approached the matter? What would be an appropriate mechanism?
The Chairperson went on to discuss the land process in Kenya where it was not the state, but the citizens, that entered into negotiations. The state gave the citizens the funds and they negotiated land and property. It was possible because those people were activists and were capable of doing it. She wondered if there was any merit in any of those examples for SA. It was particularly interesting for a researcher to examine the possibilities and to make comparisons to find examples that could assist in land reform in terms of redistribution in SA.
Prof Hall stated that when she had been at a conference in Brazil, she had gone on a field trip to see some of the land reform measures. What was interesting was that there was a social movement which mobilised around that. The members camped alongside the roads and identified vacant land, both state and private. The movement even had its own training programmes. What started out as an illegal occupation could be confirmed over time and people could get certificates of occupation from the state, sometimes after years. However, the occupiers had to show, over time, that the land was being properly used to fulfil a social function or they could be criminalised and evicted. It was a process that allowed ordinary citizens to drive the process while the state was the respondent. There were some academics in Brazil who had studied the successes and failures of the process and who could come to SA and debate the issue in the context of SA land rights.
The Chairperson’s point about redistribution was a valid point. In 2005, people were not prepared to wait for land to become available and had called for area-based planning, but municipalities did not want to have long waiting lists for agricultural land in the same way as they dealt with the housing backlog and so the area-based approach had been abandoned. Research showed that it was not the evicted farm workers or the poor who found the available land, it was well-to-do city dwellers. SA was beholden to the market and constrained by the state, so one had to think of different approaches. Decentralisation was most important but, with the capacity constraints, she could not see national, provincial and local government working together on land reform. The Redistribution Bill would look at beneficiary selection, land acquisition, transparency and accountability at local levels.
Prof Hall stated that the constraints existed far beyond the Constitution. The White Paper on Land Reform had to be reviewed.
The Chairperson stated that presentations had been really useful.
She called on Mr Peter Meakin, a professional property valuer, who had approached the Committee to say that he was also an expert on land matters.
Presentation by Mr Meakin
Mr Meakin commenced his presentation but because of the transport arrangements, Members of the Committee began leaving and only the Chairperson and Mr Mnguni were in attendance. The Chairperson invited Mr Meakin to be the first speaker at the meeting the following Friday.
Mr Mnguni enquired where the gentleman resided.
It was confirmed that he lived in Cape Town, so it was easy for him to return the following week.
The Chairperson thanked Members and presenters for their attendance.
The meeting was adjourned.