Committee discussion on process and programme

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Meeting Summary

Documents handed out: Draft programme (only distributed to committee members)

Section 25 review process

The Ad Hoc Committee met to discuss the programme for future meetings which included the upcoming Workshop of Experts to address the question of land and to amend the Constitution accordingly.

The Chairperson had proposed a list of experts who will be invited to the Workshop of Experts and welcomed the Committee to make more suggestions to ensure that the consultation process was as democratic, representative and as participatory as was possible.

Members asked how the list of experts who have been proposed originated and in terms of the Committee being able to propose names, if the Committee was expected to propose those names in that particular meeting, or if they would get some time to consider and find out if particular people would be prepared to attend the workshop. Members suggested and it was accepted that the former President, Mr Kgalema Motlanthe should be invited to the workshop to speak about the high-level report.

The Committee committed itself to consider all the official reports and debates on the matter of land and amending Constitution that that had taken place in the previous Parliament, but asserted that it would move forward as an autonomous Committee that would work “without fear of favour”. The Chairperson declared that the Committee will rise above their political party interests and work in the interest of all South Africans.

In terms of the process after the Workshop of Experts, the Committee would be briefed by the Parliamentary Legal Services on the legislative process of a Committee Bill, followed by the deliberations on the policy framework and then a public participation process on the Bill was anticipated.

The Committee intends to complete their mandate by 31 March 2020.

Meeting report

The Chairperson welcomed all present and acknowledged the apologies of those who were absent. He said that in this meeting substantive issues will not be dealt with but discussions on a suggested programme. For reasons beyond their control, the Committee was not constituted soon after the opening of Parliament. However they were happy now that it was constituted, and that the Committee is now able to hit the ground running. He suggested that the Committee should first adopt a programme to allow all Members to prepare. In the previous Parliament there was a certain process that took place that they could not ignore because it could also enrich the work that they will proceed with. There were public hearings that took place, that offered the people of South Africa as a whole an opportunity to express themselves on whether or not the Constitution should be amended, and the outcome was that Section 25 should be amended. The National Assembly adopted a resolution to that effect. The Ad Hoc Committee was set up and did some work and thereafter, there was a High-Level Panel that did some work and made a report, and at the Executive level there was also a Presidential Advisory Panel. This work is important as a background to what the Committee is going to do. As Parliament the Committee is not bound by anything. The Committee is autonomous and will do its work without fear of favour and make the necessary recommendations to Parliament. The issue before the Committee is a matter that touches the soul and the architect of the Constitution, the Bill of Rights. The Bill of Rights is entrenched and is a justiciable means for which the outcome will also be subject to scrutiny by the courts of the land claims. That also means that as Parliament what is said is not the final say, because the courts can override what has been said, therefore the Committee will need to rise above their political interests and work towards the democracy and the best interest of all South Africans. The Committee will identify the best brains that South Africa can offer and convene a Workshop of Experts which will deal with the question of land and amend the Constitution accordingly. There is a proposed list of the people who will be invited to the Workshop of Experts. This list is not conclusive, and Committee members are free to make suggestions.

Some of the experts on the proposed list are: Ruth Hall and Ben Cousins (University of the Western Cape); Quinton Johnson (Nelson Mandela University); former Constitutional Court judges Albie Sachs, Sandile Ngcobo and Johann van der Westhuizen; retired Deputy Chief Justice Dikgang Moseneke; Advocates Tembeka Ngcukaitobi and Wim Trengove; high-level panel chair and former President Kgalema Motlanthe; representatives from the Black Lawyers Association and the National Association of Democratic Lawyers; the representatives of churches with significant land holdings; officially recognised Kings, Queens and traditional leaders; and representatives of the San and Khoi communities.

The Chairperson mentioned that there was a concern about the release of the High-Level panel report that sparked controversy which was not necessary because it shifted the focus to the Ingonyama Trust when the issue was not about the Ingonyama Trust. It is understandable that King Zwelithini was offended but the King will meet with the President, and the Chairperson plans to meet with him too. The process should not be about attacking the King or the Zulu’s, the process should be about amending Section 25 of the Constitution. Once the Committee has agreed on the list of people who will be invited to the Workshop of Experts, there will be a recess, immediately after the recess the Parliamentary Legal Services will brief the Committee on the legislative process of a Committee Bill, then there will be deliberations on the policy framework and a public participation process on the Bill. The Committee aims to complete its work by 31 March 2020.

Discussion

The Chairperson allowed the Committee to ask questions or make suggestions on the approach towards the proposed process.

Dr A Lotriet (DA) asked for clarity in how the list of experts who have been proposed originated. In terms of the Committee being able to propose names, she asked if the Committee is expected to propose those names in that particular meeting or if they would get some time to consider and find out if particular people would be prepared to attend the workshop.

The Chairperson responded that he belonged to the South African Legal Fraternity and has been involved with the Constitutional working process since 1986. He used his experience to identify persons who were in some way involved in the Constitutional making process which is subject to approval. He mentioned that if Committee Members did not propose names in that meeting then they are still welcome to submit names of experts to the secretary.

Adv G Breytenbach (DA) mentioned that the high-level panel report is important to engage with and she is pleased that the Chairperson will have a proper meeting on it. She suggested that former President, Mr Kgalema Motlanthe should be invited to the workshop to speak about the high-level report.

Dr C Mulder (FF+) commented that the list of proposed names of experts were not that of the Committee but solely from the Chairperson himself, so it was confusing when he used the word “we”. He requested that the Committee receive a list of those names. He mentioned that the Chairperson said that the intention is to invite the “best brains”. He questioned what exactly the workshop would entail. He supports the Chairpersons notion in that the Committee should not necessarily focus on the current deadline of 31 March 2020, and that the Committee should take the necessary time because the matter affects the Constitution, the Bill of Rights and Section One of the Constitution which will all be part of a larger scrutiny that is beyond Parliament.

The Chairperson responded and apologised for having used the word “we” when speaking about the list of names that he had proposed because he had actually spoken on behalf of the Committee.

Mr F Shivambu (EFF) mentioned that the coordination of the meeting should have been better, and that the meeting’s agenda needed to be dealt with upfront so that the Committee is updated on a thorough process, qualitatively. He acknowledged the proposed Workshop of Experts and mentioned that the mandate of the Ad Hoc Committee is as per the resolution of the National Assembly and the National Council of Provinces (NCOP) in that the Committee is tasked with amending Section 25 of the Constitution to allow for expropriation of land without compensation. He added that there has been too much intellectualising in the panels and what is needed is a draft Constitutional review Bill in terms of what is proposed for property rights.

The Chairperson apologised for the meeting not being better coordinated as he had given instructions to the administration late, and the inefficiency was not their fault. In terms of the Workshop of Experts, he responded that the countries democracy is a participatory and representative democracy, and the people of South Africa had the opportunity to elect Members of Parliament (MPs) of their choice to represent them. This does not mean that they are the custodians of all the wisdom in the world and for that reason it was decided that there needs to be a final opportunity for everybody to say what they needed to say. It is currently the Sixth Parliament and some of the Committee Members of this current Parliament were not part of the processes that went on before, so the goal is to level the playing field to ensure that when the Committee begins to work, all members are on the same level, therefore it is important to have the workshop. The Committee should represent the people of South Africa in terms of the Constitution who reserve the right to participate in the legislative processes of the country. The end product should be acceptable by all people of the country.

Mr Z Mandela (ANC) mentioned that he welcomed the proposed list in that it is not conclusive but it is a working document. He suggested that the Committee should look broader, since it is looking at the high-level report and he also recommended the former President, Mr Kgalema Motlanthe. He asked if the Advisory or people who drafted the panel report will also be included in the workshop. He requested that the proposed list be made available to Committee Members. He suggested that religious institutions should also be represented, where for instance the Dutch Reformed Church owned vast amounts of land, so perhaps there could be a perspective in that regard. He mentioned that the land issue does not only pertain to Kings and Queens and acknowledged the Contralesa that represented traditional leaders. There is also the National House of Traditional Leaders, the Provincial Houses of Traditional Leaders and the Khoi and the San in their respected entities. He suggested an approach where the representation should be broadened to have more of an inclusive presence.

The Chairperson agreed with Mr Mandela’s suggestions and mentioned that the Committee should consult with the Department of Cooperative Governance and Traditional Affairs (CoGTA) when consulting about who to invite. In order to avoid disputes about who the Kings and Queens are, the Committee should invite those who are officially recognised. The proposed list will be distributed, and the door is open for Committee Members to make suggestions. He mentioned that the Committee will take note of, but it will not open the debate that took place in the High-Level Panel and the Presidential Advisory Panel as they will move forward as an autonomous Committee.

An ANC Committee Member mentioned that she thinks that the Committee must try to honour the deadline of the 31 March 2020 because this task has been in the public domain for a long time, so she proposed that they keep to the deadline but if it happens that the deadline will not be met, then the Committee can request an extension. She suggested that the Committee should not state beforehand that it will not meet the deadline. The Sixth Parliament has the obligation to finalise tasks. She expressed concern that the Chairperson had said they will not discuss the reports from the High-Level Panel and the Presidential Advisory Panel and questioned why those representatives will be at the workshop.

The Chairperson clarified and said that he meant that the Committee will not open the debate that lead to the report but that the content will be noted so as to make it clear how they have arrived at the report. He agreed that the deadline should be honoured, and that if the Committee should commit themselves and ensure that all meetings go according to schedule then there will be no reason why they will not finish their work in due time. The workshop will also help the Committee improve the texts and options of the amendments.

An ANC Committee Member agreed that the proposed list should be forwarded to Committee Members. He raised a concern that some Committee Members made early departures or apologies to not attend meetings. He suggested that if Committee Members depart formal meetings that it should be brought to the attention to the rest of the Committee. With regard to the workshop, he agreed that the Committee and other stakeholders should consult with the brains in South Africa that are able to help the Committee with the task. He suggested that for the next meeting, when the list is final, the Committee should discuss the roleplaying because in workshops some people have the role of leading and presenting and some are participants and bring input. He suggested that they discuss who will lead the debates.

The Chairperson agreed and mentioned that perhaps a distinguished and former judge will facilitate the workshop. He reasserted that this is a matter that would require the Committee to rise above party political interests.

Mr E Buthelezi (IFP) mentioned that it is important for the Committee to do their best; he agreed that the consulting approach of the workshop is very important as it will ensure that the Committee does not just rely on their own opinion.

The Chairperson agreed, and said as he had mentioned earlier that the Committee is not the custodians of the wisdom of South Africa and that there is a danger in listening to oneself. The Committee accepts their mandate, but it will also ensure that democracy is representative and participatory and that the people of South Africa, regardless of their position have the opportunity to contribute to decisions.

A Committee Member said that it would have been helpful if the meeting had a roadmap guide from the Parliamentary Legal Services. He suggested a presentation for the next meeting by the legal team and mentioned that the process should not have potholes or loopholes, and that these if they existed should be addressed from the start.

The Chairperson responded that after the Workshop of Experts the Committee will have a briefing by the Parliamentary Legal Services on the legislative process of a Committee Bill, deliberations on the policy framework and a public participation process on the Bill.

A Committee Member suggested that it will be better to organise specific dates to avoid clashes with other Committees. The Chairperson should consult with other relevant officials to circulate meeting dates to help Committee Members prioritise.

The Chairperson said that the comment was helpful and that they will consult with other Officials and finalise meeting dates.

The meeting was adjourned.

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