The mandate of the Committee was to discuss how to make explicit what was implicit with regards to expropriation of land without compensation in the interest of land reform. Parliament’s legal advisory team presented two options for the amendment of Section 25 of the Constitution. A Committee member from the EFF also proposed a third option.
Judge Johann van der Westhuizen was present as the facilitator of the dialogue and encouraged discussion on the options presented. Interested stakeholders from the public were present and voiced their opinions and concerns. Certain stakeholders, like the FW de Klerk Foundation and Agri South Africa, wanted to debate the need and desirability to amend Section 25 and asked if there was any way of stopping the amendment process. These organisations opposed the amendment. Other organisations urged the Committee to focus on the legislation that already existed and to prioritise the enforcement of that process. Cosatu agreed with the proposed amendment and stated that it was in the interest of economic growth. While it was initially debated whether the amendment process was necessary, it was stressed that the Committee had a specific narrow mandate, to amend Section 25 of the Constitution to enable expropriation of land without compensation, and it needed to follow that mandate so that it could meet the deadline of 31 March 2020. Written public comment on a published Committee Bill will be invited throughout December and January followed by public hearings in February.
Chairperson's opening remarks
The Chairperson gave a broad overview of the history of land dispossession during the colonial and the apartheid eras. He emphasized that the Boers were not the architects of apartheid but the Western Imperial powers, especially Cecil John Rhodes. He read a quote from Cecil John Rhodes that stated his dream was the spread of the British Empire. Rhodes never mentioned occupation by the Boers or Afrikaners. Cecil John Rhodes also appropriated the African belief in and worship of the ‘Queen of Heaven’, also known as ‘The Cosmic Mother’ or the ‘Great Sky Goddess’ who manifested herself as the star of the underworld. She is commonly known as Queen Sheba. Rhodes practiced the religion associated with her and prayed to the Queen Sheba before undertaking any British Imperialist plan. Rhodes said that the object of his life was for the defence and extension of the British Empire. Rhodes said that the expansion northwards was what needed to be worked towards in Southern Africa.
It was South Africans who have inherited this great problem, of the Imperialist expansion of the British Empire, and both black and white need to work together to find a solution. Cecil John Rhodes stole the diamonds in Kimberley and not the Boers. The British and Boers clashed during the second Anglo-Boer War and Africans sided with the British because they thought the British were their friends. Both Africans and Boers were betrayed after the first and second Anglo-Boer War. It is in this context that in 1918 the father of Beyers Naudé founded the Broederbond to fight back against the British secret society and British influence. It was after these events that apartheid was started, by people who had lost spouses and children in concentration camps by a scheme that was created by Cecil John Rhodes. South Africa had inherited this problem and therefore both black and white have a common destiny in this country.
Mr Motshekga appealed to all present in the meeting to not ‘point fingers at one another’ because that will not help solve the current problem of land dispossession. Those present were called to Parliament, as the experts in their respective fields, to assist this Parliament in making an amendment to the Constitution. This amendment will ensure that justice was provided to all the people of South Africa both black and white. ‘We do not want a Somalia here. We do not want a Bosnia here. We do not want a Syria here’. Mr Motshekga asked that everyone put aside their vested interests. Members of Parliament do not have the monopoly of wisdom and that was why the experts were called in to advise and assist Parliament in amending Section 25 of the Constitution. This was the first of many consultations that would be taking place. What comes out of this process must be a product that all South Africans can be proud of. Sectional interests are a breeding ground for disaster.
This Committee had appointed a distinguished scholar and former Constitutional Court Judge Johann van der Westhuizen as the facilitator and acting Chairperson. This was done to ensure that impartiality was achieved. Adv van der Merwe would be doing the presentation on the proposed amendment to Section 25 of the Constitution. This Committee had legal experts that have transcended sectional and racial interests and have put the interests of all South Africans first.
Mr N Shivambu (EFF) said that Mr Motshekga gave a ‘lop-sided reading of history’. Many objectionable things had been said, especially trying to exonerate the Boers for the brutality of apartheid. It was a wrong foundation upon which to start the discussion. He was interested in what the programme was for Parliament as the Committee was supposed to table a report by 20 March 2020. The process stated that when the Constitution needs to be amended, the Committee should introduce a Bill to National Assembly. He thought the Committee was taking a different direction altogether. Ultimately there was a resolution by Parliament that Section 25 of Constitution be amended. In Parliament the mandate now was to amend the Constitution and that should be the focus of this meeting. He was worried about the direction that the meeting was going in. He wanted clarity on the deadlines and dates. When will the public hearings be? When will the first draft be needed? He said that ‘both English and Afrikaner were part of the problem’ and disagreed with the reading of the history as it was biased.
Mr Motshekga replied that history was subject to interpretation. Every human being has the right to interpret facts as they see them. Therefore, he was not going to contest if anyone interprets history differently. He presented the history as he had read it. He was also mindful that the Committee was guided by a resolution of Parliament. That is why a qualified advocate was brought in to take the Committee through the process and timeframe for the amendment. The Committee was committed to finishing the process on time.
Mr Motshekga handed over the Chairperson duties to Judge van der Westhuizen as the facilitator.
Judge van der Westhuizen opening remarks
Judge Johann van der Westhuizen thanked Mr Motshekga. Acting Chair van der Westhuizen said that he was brought in to bring a level of neutrality and objectivity. He agreed with Mr Shivambu that the Committee make an agenda for the day. Some of the answers as to what the Committee’s task was for the meeting would become clearer after the presentation by Adv van der Merwe. He would provide a space for the Committee to identify topics, from that presentation, that were to be discussed and that the Committee decide on the length of the meeting. Two things which may help him in assisting the Committee. He was intimately involved in the drafting of the Constitution. He was on the panel of experts assisting the Constitutional Assembly. He was specifically involved in the Bill of Rights chapter. He was not a land expert on Section 25. Secondly, he was a judge in the Constitutional Court for twelve years. He was therefore familiar with issues around Section 25 of the Constitution. He did not think it was necessary in the meeting to dwell on colonialism and whose fault it was. No one can deny that colonial conquest took place and that there was violence involved. The important question now was: how do we move forward? Acting Chair van der Westhuizen asked that a proper and fruitful discussion take place. After the presentation by Adv van der Merwe the Committee should decide on the way forward on the agenda of the meeting. The Committee was to tell the Chairperson what the purpose of the meeting would be.
Adv Charmaine van der Merwe, Senior Legal Advisor in Parliament, began by outlining the programme so that the Committee could meet its mandated deadline of 31 March 2020. After this workshop there would be a meeting next week, discussion by the Committee, on the points raised in this current workshop. Another week will be given where the Committee would be able to approach the drafters of the Bill to ask any questions. The legal drafters would present the Bill to the Committee on the 27 November 2019. Thereafter there will be deliberations by this Committee in various meetings. The aim will be to finalise and adopt a Bill for publication. There will be two calls for comment. The public will have the opportunity to comment on the proposed Bill in December. The reason for having it in December is because other institutions such as the provincial legislatures and the National House of Traditional Leaders need to be involved. To ensure these institutions can set their calendars for January, Parliament would like to give them a formal document by December. After the festive season, there will be a renewed call for public comment on the Bill on 6 January for a period of at least three weeks. In February there will be public hearings where the Committee will consult members of the public on their submissions, focusing on the content of the Bill. At the end of February a presentation to the Committee will take place where the content and legal advisors will address any issues the Committee members may have. It is envisaged that on 20 March the Committee will finalise and adopt the Bill. That Bill will be tabled in the National Assembly for introduction so that the final Bill may be tabled by 31 March. Adv van der Merwe assured the Committee that the programme was still on track.
Process in the Fifth Parliament
In the Fifth Parliament the Constitutional Review Committee was mandated by both Houses of Parliament to review Section 25 of the Constitution. The expressed instruction was to consider Section 25, as well as other relevant sections of the Constitution, to see what was necessary to make it possible for the State to expropriate land without compensation. Then to propose a constitutional amendment where necessary.
The Constitutional Review Committee held a number of consultation processes that went all around the country to speak to the public to understand the varying viewpoints. The Constitutional Review Committee, on 15 November 2018, made the recommendation that Section 25 must be amended to make explicit what was implicit. The Constitutional Review Committee, because it is a Joint Committee, does not have the power, in terms of the Constitution, to introduce legislation. That can only be done by Parliamentary Committees or Members and Ministers of Parliament. The National Assembly had to establish a Committee. The Ad Hoc Committee on Section 25 was established on 6 December 2018. The Ad Hoc Committee of the Fifth Parliament had consultations, met with experts and listened to a number of views. However, the Fifth Parliament came to an end in April 2019 because of the national elections so there was insufficient time to develop and process a Bill. On 15 March 2019 that Committee filed a report indicating that it was unable to complete the process and recommended that the matter must be concluded in the Sixth Parliament. That resolution was adopted by the National Assembly. This brings us to the Sixth Parliament. On 25 July 2019 the Ad Hoc Committee of the Sixth Parliament was established and instructed by the National Assembly to initiate and introduce legislation that would amend Section 25 of the Constitution. The Committee had to consider the Constitutional Review Committee’s report as well as the Fifth Parliament’s Ad Hoc Committee report.
Policy that arises from the mandate
The mandate arises from the National Assembly resolution of 25 July 2019. The policy statement that will inform the Bill is firstly, that Section 25 of the Constitution must be amended; secondly, that it must be amended so that it makes explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform. This was the mandate that the Committee was working with and what the Bill must consider.
Consultations – Workshop
The consultation process started off with this very workshop. The Ad Hoc Committee is empowered by the National Assembly Rule 167 to hold public hearings, to receive submissions, and to receive oral evidence. The Committee is empowered to consult with the public. This Bill is part of nation building so that was why it was necessary to hold public hearings and consult the public. It was acknowledged that there were differing views on how to effect the amendment but Parliament wants to hear all the views. When drafting the Bill all the views will be considered. The workshop was an important consultation prior to the finalisation of the Bill.
Views on amending Section 25
• Section 25(3) deals with just and equitable compensation and thus allows for flexibility (compensation need not be market related). This means it is not necessary to amend section 25 – but the mandate of the committee requires "that what is implicit must be made explicit".
High Level Panel on Assessment of Key Legislation: “Effective land reform requires a suite of laws.” Section 25 provides the framework and must enable this suite of laws.
• The whole of section 25 is an impediment to the expropriation of land without compensation. Section 25(1), (2)(b) and (3) protects “illegitimate” property rights acquired under the colonial and apartheid regimes.
Section 25(4) defines public interest to include land reform: However, there is a need to balance the protectionist section 25(1) to (3) against the transformative clauses of the Constitution.
Examples of how compensation can be addressed
• Option 1: Amendment of section 25(2)(b) and (3):
“(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court: Provided that a court may determine that no compensation is payable in the event of expropriation of land for the purposes of land reform…
(3) Where compensation is payable, the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including-“
• Option 2: Insert a new subsection
“(4A) Notwithstanding the requirement for compensation contemplated n section 25 (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination”.
• Presidential Advisory Panel on Land Reform: The current framing of section 25 is compensation-centric.
A new section could be included to require the development of enabling legislation to set out criteria for expropriation without compensation.
Example of an enabling clause:
“(4A) National legislation must set out the circumstances under which property may be expropriated without the payment of compensation”.
Adv van der Merwe said that when we discussed with the Chairperson what the purpose of this workshop was, the Chairperson’s instruction was that we need to look at the how. The consultations of the Constitutional Review Committee may have been a separate process from that of the Ad Hoc Committee but it is still a parliamentary process. The Committee has been through that process. There has been a debate on whether there should be an amendment or not and the decision was that there should be an amendment. That process has been gone through. The question that is before this Ad Hoc Committee is how to make the amendment. What would be the best wording? What would be the best phrasing?
Acting Chairperson, Judge Johann van der Westhuizen, opened the floor for technical questions, for example, any questions on the timeline of the programme.
Mr Matome Chidi said that it should be clear that the focus of the amendment process should be on section 25(2) and (3). For the purposes of this discussion, members and non-members did not have the wisdom to talk about the amendment until a draft had been made. He suggested that a proposed draft be formulated and circulated amongst members and non-members first, before any further discussion. The Committee should set aside time for members and non-members to consult the draft before 27 November. This meant that the meeting did not have to be lengthy as those present should first have the draft Bill in front of them so that fruitful discussion may take place. He reiterated that the focus be on section 25(2) and (3).
Acting Chair van der Westhuizen thanked Mr Chidi for his contribution but reiterated that this section of the meeting should be for clarity and technical questions only. Debating the finer details of the proposed amendments should be left for later.
Mr Shivambu asked for the final deadline. It was confirmed the final deadline would be 31 March 2020.
Dr C Mulder (FF+) said that the timescales were clear. He asked for clarity on the Section 25 reference to "property". He understood that when Parliament talks about expropriation it is talking about land and not property. He wanted clarity on the distinction between land and property.
Adv van der Merwe replied that the mandate of this committee is focused on land. The policy was concerned with the expropriation of land without compensation, as an option for land reform.
Acting Chair van der Westhuizen confirmed that any amendment would have to separate land from the property concept in general.
Adv van der Merwe agreed and stated that the Committee was mandated to deal only with land and not property.
Acting Chair van der Westhuizen said that there were views that the Constitution need not be amended but that there was a recommendation that it should be amended to make it clearer. Was there no going back on that recommendation? Was it possible that no amendment needed to be made?
Adv van der Merwe replied that the mandate to this Committee was given by the Constitutional Review Committee in the Fifth Parliament. The Constitutional Review Committee recommended that Section 25 must be amended. That recommendation was adopted by the National Assembly. When the National Assembly established the Ad Hoc Committee, in the Fifth Parliament and in the Sixth Parliament, the mandate was clear that Section 25 must be amended.
Dr Vuyo Mahlati, African Farmers Association of South Africa (AFASA) President, requested the Chairperson allow for space to discuss property.
Prof Elmien Du Plessis, North West University Law Faculty, asked a question on parliamentary rules. Was the Committee bound by the mandate that established it? Does the Committee have the power to go back to the National Assembly and say that they feel the amendment was not necessary?
Adv van der Merwe replied that the Committee was an extension of the National Assembly and the Committee is therefore limited by the instructions of National Assembly. In past Committee meetings it had been made clear that it was failing to achieve the 31 March 2020 deadline. Should anything happen to make it difficult to achieve the deadline, the Committee may approach National Assembly. It does not guarantee that the National Assembly give an extension. That was why this Committee was doing its best to achieve the mandate given to it by the National Assembly.
Mr Bennie van Zyl, TLU South Africa General Manager, raised concern about the process of proposals and submissions given to the Fifth Parliament. Would those proposals be looked at? Or was the Committee starting over? Were those submissions and proposals still being considered in the Sixth Parliament’s Ad Hoc Committee?
Adv van der Merwe replied that the mandate required the Sixth Parliament Ad Hoc Committee to consider the report of and the work done in the Fifth Parliament. The work did not have to be redone. The Committee will consider that report. It must be clear however that the Ad Hoc Committee must limit itself to its mandate. She reiterated that the report of the Fifth Parliament’s Ad Hoc Committee as well as the report of the Constitutional Review Committee must be considered.
Dr Mulder said that technically the Committee could approach Parliament to amend the mandate. The National Assembly will decide whether it wants to change the mandate or not.
Acting Chair van der Westhuizen clarified if the previous two questions were asking about the possibility of no amendment being necessary at all.
Dr Mulder replied that the House sets the deadline and makes the mandate. The House was also capable of extending the deadline and was capable of amending the mandate. If the Committee wanted to go back to the House, either to extend the deadline or amend the mandate, that was technically possible.
Acting Chair van der Westhuizen said that there was no point in discussing topics that were not discussible at all but if it were a theoretical possibility it should be discussed.
Mr Shivambu said that the parliamentary processes of the Fifth Parliament had exhausted whether Section 25 was to be amended or not. Parliament adopted a recommendation that Section 25 of the Constitution must be amended. The Ad Hoc Committee was mandated to amend the Constitution. The Committee cannot debate that forever and that the matter needed to be concluded.
Adv van der Merwe explained that the Committee had two options to amend Section 25 of the Constitution. Option 1 would be to amend within Section 25. This would entail changing the wording of section 25(2)(b) and (3). Option 2 entailed the insertion of an entirely new subsection 25(4A). Then there was a recommendation from the Presidential Advisory Panel on Land Reform which stated that new legislation should be developed to enable expropriation without compensation. Adv van der Merwe stated that was not a third option but an additional clause that could be attached to either option 1 or option 2.
Acting Chair van der Westhuizen asked if the meeting could be steered towards discussing the two options that have been presented. The actual framing of the words were not necessarily important but that there was also a symbolic value to the amending of this section of the Constitution.
Mr Dave Steward, FW de Klerk Foundation and the Centre for Constitutional Rights Chairman, asked if their presence at the meeting implied that they accept the need and desirability to amend Section 25? Were they there to just discuss the manner in which the section should be amended? Or was there a place in the consultation for organisations and people who were opposed to the amendment of Section 25 to voice their concern?
Acting Chair van der Westhuizen stated that anybody was welcome in the meeting, as it was a public meeting, and assured everyone that merely attending the meeting did not mean that they were agreeing with any resolutions that were made in the meeting. Everyone still had the right to voice their own opinions and disagree with the amendment process.
Mr Motshekga said that the desirability or non-desirability to amend Section 25 was dealt with during the Fifth Parliament. The report was presented to Parliament. Parliament said that it was desirable to amend and it appointed this Ad Hoc Committee to work on the amendment. This Committee would not be going back but would move forward with the process of amendment.
Ms Annelize Crosby, Agri SA: Head of Land Affairs, had a dilemma with where the debate was going. She always felt honoured to be invited to Parliament but that the invitation was an open-ended one. It was not clear, being invited to the meeting, that the only focus would be on what the wording was going to be for the amendment. She acknowledged that the Ad Hoc Committee was bound by a resolution from Parliament but that the non-members were not bound by that resolution. The mandate of her organisation, Agri SA, was that they were against any amendment of Section 25. Agri SA believes that the only reason for making such an amendment was a political one. The amendment would not solve the problem that it was trying to address. Agri SA did not think the amendment was good for the country. If there was not going to be any opportunity to challenge the Committee’s mandate, it presented her with a dilemma as to being present at the meeting because she would be limited in her participation.
Acting Chair van der Westhuizen stated that he did not want anyone to leave and feel unwelcome. He cannot influence the mandate of the Committee but he was there to facilitate a discussion. He asked for the members and non-members to focus on the options presented and after that people can voice their opinions and agree or disagree with the presented options.
Mr Shivambu said that leaving was also a form of participation. He proposed a new option that was different to the two presented. His option stated that ‘property may be expropriated without compensation (a) only in terms of law of general application and (b) for a public purpose or in the public interest. The entire subsection that speaks about the 1913 Land Act should be taken out. He agreed to make his proposal available to the Committee in writing.
Acting Chair van der Westhuizen said that in his experience of drafting the Constitution, the property clause was one of the most contested and debated clauses of the Constitution. Section 25(1) states that no one may be arbitrarily deprived of property. Subsection (2) and (3) deals with expropriation. The Committee had two options drafted by the legal experts from Parliament and a new third option from the EFF. He asked for comments on any of the three options that have been provided.
Adv van der Merwe said that the themes that came out of the current workshop would be discussed next week. The Ad Hoc Committee would be convening on 13 and 15 November.
Mr Z Mandela (ANC) suggested that the written submissions be made to the Committee secretary. Those submissions should be circulated amongst the Committee members so that they have time to prepare and formulate opinions for the discussions that will be held next week.
Acting Chair van der Westhuizen said that any discussions that can be held now should happen otherwise the meeting would be over. Any written submissions could still be sent to the secretary.
Ms G Breytenbach (DA) said that she wanted to hear the views of the stakeholders from the public on the suggested amendment options. Members of Parliament can discuss it at their leisure but this Committee may not have the opportunity to hear the views of those interested organisations and experts from the public.
Prof du Plessis stated that she disagreed that an amendment to Section 25 needed to be made. She agreed that the State can already expropriate without compensation. The role of legislation was to make explicit what was implicit in the Constitution and not through an amendment in the Constitution. Secondly, there was no such thing as expropriation without compensation. She had an issue with some of the wording of the proposed amendments. Expropriation is a legal mechanism for State to acquire land by using its eminent domain and it requires compensation. For the Committee to speak about expropriation without compensation was an oxymoron. She prefers to speak about expropriation at R0 compensation. If the wording says expropriation without compensation it takes away the ability of the owner to contest what is just and equitable is more than R0.
Acting Chair van der Westhuizen wanted to know how R0 would qualify as compensation?
Prof du Plessis replied that it would still be compensation. The owner would still have the right to go to court and say that the R0 compensation was not just and equitable. Expropriation without compensation might be interpreted that the owner does not have the right to contest the ruling in court because it is ‘without compensation’. The courts have been conservative on interpreting section 25. There should be an interpretation clause to guide courts when they make rulings on expropriation cases. Thirdly, while there may not be a legal reason to amend the Constitution there may be political reasons for the amendment. If there were no legal reasons to make the amendment it should be clearly stated that the amendment has been made with political motivations. What will be the consequences, economic and otherwise, for a political amendment? She disagreed with what Adv van der Merwe said in her presentation about the High Level Panel report: "The High Level Panel report gave a suite of legislation to implement land reform and that it needed a constitutional amendment for those purposes". Prof du Plessis disagreed with that statement as the High Level Panel report made it quite explicit that there was no reason to amend the Constitution.
Mr Shivambu said that the Committee members were elected by the people of South Africa and that reports that were not commissioned or sanctioned through Parliament are merely advisory. He asked that the Committee respect the mandate and process that has begun on amending Section 25.
Mr Chidi said that Section 25(2)(b) should state expropriation without compensation and the exception should be when it would interfere with a home. In other words, all other property may be expropriated but not the home. Compensation should not only be money. In some cases when mining communities were relocated they are not paid anything but rather given new homes. That was also a form of compensation. He asked that African values be brought into the Constitution. The court should not be the one who determines the value of compensation. There should be another body which determines the value of compensation. If the recommendation of that body is contested, it should be taken to court. His last point was that land restitution claims could only be made after 19 June 1913. The dispossession of land occurred long before 1913. The year 1913 was just a consolidation of a practice that had already existed. He proposed that the year 1913 be taken out of the Constitution.
Ms Zenande Booi, Land and Accountability Research Centre (LARC) Researcher: UCT, said that constitutional provisions only do so much. In practice, legislation needed to be implemented to give effect to what is in the Constitution and the power the Constitution gives to the Executive to execute those aims. Her first point was that the Draft Expropriation Bill makes it quite difficult to carry out any expropriation without compensation as it has incredibly onerous processes. She submitted documents to the Committee that goes into detail about the provisions in the Draft Expropriation Bill that will make it difficult for the mandate in the Constitution to actually become a reality for land reform. The second point was in relation to the treatment of people with unregistered rights. Any attempt at accelerating land reform placed people with unregistered rights, in the former homelands and farm workers, at an incredibly high risk of losing their rights and their rights not being treated with respect. That was the context within which the amendment needed to be looked at. People who hold unregistered rights were extremely vulnerable.
Mr Matthew Parks, Cosatu Parliamentary Coordinator, said that Cosatu supported amending Section 25 of the Constitution and the passing of the Expropriation Bill. They understand the problem of land hunger in both rural and urban areas and that was why they supported the bill. There are significant economic opportunities when there is a more equal distribution of land. On option 1 COSATU believes that it should not be the courts function to value compensation. That should be the duty of the Office of the Valuer-General. On option 2, he thinks that the subsection should be broader than just land. The Expropriation Bill should speak directly to the types of property and should not just say land. COSATU supports the Expropriation Bill as a vehicle to guide land reform but thinks that it should go further. It should take into account land that had been expropriated under the apartheid era where no compensation had been paid. People who benefited from unfair apartheid beneficiary loans should not be compensated for their land. There are many other progressive land reform bills that are in the pipeline which government has taken too long to bring to Parliament. One of them is the Extension of Security of Tenure Amendment Bill (ESTA) to protect farm workers from evictions. Parliament must revive the Restitution of Land Rights Amendment Bill. There are a whole package of other Bills that needed to be passed to address land reform. His final point was that there can be numerous laws and a change to the Constitution but if government does not give meaningful support to new farmers or to farm workers, they will fail. New farmers needed to be prioritized and supported. Many new farmers fail due to lack of capital and access to resources, transport and equipment.
Members of the Committee requested that everybody make submissions and write down their thoughts and opinions and submit them to the secretariat. Those valuable submissions would be circulated to Committee members so that during the discussions next week the members could talk about those issues. The Chairperson agreed to that proposal.
Mr E Buthelezi (IFP) wanted clarity on the distinction between land and property with regards to the mandate of the proposed amendment to Section 25.
Acting Chair van der Westhuizen asked if Adv van der Merwe spoke about section 25(7) that talks about the 1913 Land Act? Was it a part of any discussion going forward?
Adv van der Merwe replied that the Constitution Review Committee did receive input on section 25(7) but in the end its resolution was focused. Its focus on land reform was concerned only with the expropriation of land without compensation. Currently, section 25(7) as well as other methods of determining compensation were not part of the mandate of this Committee. That does not mean it cannot be discussed but it was not part of the mandate of the current committee. She acknowledged that the Constitutional Review Committee did receive submissions on section 25(7) but chose not to act on it. Next week during the discussions the Committee can decide whether it wants to focus on the current mandate or broaden the mandate.
Dr Mahlati thought it was important as a discussion point to raise the uncomfortability some of the members were having. When dealing with injustice there was evidence of legal and technical issues attached to it. The language that considered this issue as "only a political issue" to please a few people, caused pain. She had a problem with how some people framed the amendment process.
Dr Mahlati also raised the issue of property. They were not going to resolve it there but it was important for the Committee to recognise that it was an important issue. Section 25 did refer to property and land in different subsections. It is important that the Committee is clear on how to address that. It was important not to limit our discussions only to the topic of land but also to consider buildings. The second item relates to property rights. Two thirds of South Africa’s property rights are not recognised. There are many issues and AFASA would like to see land administration be made available. Land is more than just agriculture. Land also encompasses human settlement. This Committee cannot be narrowly focused in its mission.
Section 25(7) and the date of 19 June 1913 was again raised with some members saying that the date should be removed from the Constitution since land dispossession had occurred from 1652 onwards.
Acting Chair van der Westhuizen acknowledged that section 25(7) was one of the themes raised in this meeting. It should be discussed at a later stage since it was outside the scope of the Committee’s mandate.
Ms K Mahlatsi (ANC) proposed that the meeting be adjourned. The Committee had a specific mandate from Parliament and the meeting was constantly going back and forth and the Committee had not moved forward with what they were supposed to discuss. She asked the Acting Chairperson to allow the public to make inputs and that the meeting be adjourned.
Acting Chair van der Westhuizen said he would like the two options presented to the Committee, by Adv van der Merwe, and the third option, proposed by Mr Shivambu, to first be discussed so that everyone could get a clearer understanding of the proposed amendments. After the discussion the Committee could decide to close the meeting.
Mr Shivambu commented that Section 25 used land and property interchangeably and this caused confusion. The Committee had two options. First, they could go back to the National Assembly and ask that it re-mandate the Committee to look at property as a whole or the Committee does it itself. The Committee could deal with the property clause and say this was the conclusion it had come to and this was the proposal. He suggested that section 25(1) be removed entirely and replaced with ‘The State, including the Judiciary, Executive and Parliament, carry an obligation to redress the imbalances of the past through enactment of laws that will achieve redress and equitably redistribute all resources’. Section 25(2) should state ‘Property may be expropriated without compensation: (a) only in terms of a law of general application or (b) for a public purpose or in the public interest’. Remove section 25(3) and replace with: ‘ The State should be custodian of all South Africa’s natural resources, inclusive of land, mineral resources, and water, and relevant legislation should be passed to clearly define the State's custodianship of natural resources’.
Adv van der Merwe went over the two options presented in her earlier presentation. The two options were limited to the current mandate of the Ad Hoc Committee. The first option was to do the amendment within the text of the Constitution. This meant amending section 25(2)(b) to add the proviso that the court may determine that no compensation was payable in the event of expropriation of land for the purposes of land reform. Then there would be a consequential amendment to section 25(3) to indicate that there are instances where no compensation would be payable. Option 2 entails the creation of an entirely new subsection 25(4a) which starts with the word ‘Notwithstanding’ to indicate that this was an amendment of what goes before or a limitation of what goes before. Option 2 would state: ‘Notwithstanding the requirement for compensation contemplated in section 25 (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination’.
Acting Chair van der Westhuizen said that the purpose of the current meeting was to identify themes for the discussion meetings happening next week. With an amendment, there is a question as to how narrow or wide the focus will be, especially with such a sensitive topic they are dealing with. He asked if they saw a possible tension with the timelines for the amendment process? The wider the focus of the amendment, the longer it may take.
Adv van der Merwe said that the time given by the current mandate takes into account what the mandate is. It is a narrow focus which allows for a quick amendment. The broader the Committee goes, there might have to be more discussions before it gets drafted. For example, the themes that have arisen in this meeting on section 25(7) would entail more discussions and meetings on whether it should be removed totally or not. The Committee would have to ask for the mandate to be expanded and that would affect the timeline.
Mr Motshekga said dispossession occurred long before 1913 and that June 1913 was a consolidation of dispossession. In 1913 the majority of African people had only 7% of the land of South Africa, which was increased to 13%. If 1913 was the benchmark, it was as good as saying that African people should claim the native reserves, which are barren and unfertile, as theirs. The Committee should not only be talking about apartheid but also about British Imperialism. He was happy with the discussion and points that have been raised as none of it was futile. The Committee has to always be mindful of abiding by its mandate.
Acting Chair van der Westhuizen said that the Committee must decide how narrow or all-encompassing they wanted the project to be. The Constitution needs to have some form of permanence and it should not be amended every year. He was also not sure why people were saying that this amendment was political. The reason the public and members were there was because it is political.
Ms A Steyn (DA) wanted a better understanding as to how property would be disconnected from land? She did not want the Committee to make a mistake for future generations. What will stop the government from not protecting property rights? It was something that she struggled to understand. If the Constitution was written in a way that does not protect certain people’s property rights – who will protect the property rights of the new owners?
Mr Neo Masithela, AFASA Chairperson, said that the reality in South Africa is that many people have no protection of their property rights. Whatever the Committee does, it needs to protect the property rights of those who are not currently protected. The rights of all South Africans, black and white, need to be protected. He agrees with the proposals made to remove section 25(7) from the Constitution as land dispossession did not start in 1913. The land of South Africa should not be in the State’s control. This would prevent black people and black farmers from owning their own land. That would be a big mistake. Some of the land can be in the hands of the State and allow black farmers to own land as well.
Mr Peter Setou, Vumelana Advisory Fund Chief Executive, said that their view had been shaped by their practical experience having supported a number of communities in South Africa to develop their land. Vumelana acknowledges that while government needs to deal with the legacies of the past, the Committee should not focus only on amending the Constitution. Failure to attend to urgent matters about land reform will only compound the already existing difficulties. This Committee should also focus on the impediments facing land reform. Government needs to ensure that while people get land, they also need to be supported so that the land can actually benefit the people. The amendment should have clearly defined circumstances because if there are not any, it could lead to uncertainty. They also supported the view that supporting national legislation be formulated to protect land owners. The Office of the Valuer-General needed to be strengthened to make it properly independent. The Land Claims Court also needed to be transformed in this process and its mandate should also be expanded. The legislation should also allow for mechanisms for private sector involvement and support.
Mr Shivambu said that the Committee was mandated to change the Constitution. There are other Committees to deal with those other irrelevant issues that have been raised.
Mr Motshekga said that members of the Committee should be tolerant of the views and opinions of the public. This matter was also not a black and white matter. This matter deals with all the people of South Africa. The Committee was not mandated to put the land in the custody of the State. He values all the views of the public and once again reiterates the need to be tolerant of opposing views.
Prof du Plessis apologised if her comments on the amendment process "being political" offended anyone. Any amendment that goes beyond the mandate can be taken on review to the court. That should be avoided. The Committee should not go past its mandate and get taken to court. For her what was of importance was what is implicit in the Constitution. If what is implicit is not agreed upon, it is impossible to make explicit what is implicit. The mandate restricts the Committee to expropriation of land and nothing else. Mr Shivambu’s option goes much further than making explicit what is implicit in the Constitution. The beginning of Section 25(1) ‘No one’ is an important part of the Constitution. Property was not only restricted to ownership. Section 25 protects citizens from unlawful or arbitrary state interference and she wanted the Committee to remember that. On the 1913 cut-off date, people who cannot get land through the restitution programme are supposed to get help through the redistribution programme.
Ms Crosby said that what the Committee decides on will have consequences for future generations. It would be easy for this Committee to say that it had a mandate and to just follow that mandate. She appealed to the Committee to take context into consideration. This was a complex issue and there are many different aspects. To create the impression that amending the Constitution will be the "silver bullet that is going to change things for people who are frustrated" would be a huge mistake. In a couple of years’ time those people will be frustrated once again if they see that the amendment has not made an impact on their lives. She would like the Committee to look at the international law context. Agri SA’s information says that no other democratic country in the world has gone the route of expropriating without compensation. It is regarded as best practice, under international standards, to compensate when expropriation occurs. She raised concern about the economic consequences of the amendment. The Committee needs to take into consideration what rating agencies like Moody’s might do if the amendment process goes ahead as property rights are taken seriously by investors. The amendment process can have various economic repercussions.
Acting Chair van der Westhuizen said that insinuations about rating agencies need to be stated concretely. Was Agri SA saying that Moody’s might downgrade South Africa if the Committee chooses option 1 or option 2? If any of the options will have concrete consequences, the Committee needed to know about it. That type of information needed to be shared with the Committee.
Ms Crosby said that her intention was not to comment on those proposals specifically. What is concrete is that there is a property rights index that is published every year and there is research that indicates that there are direct correlations between income per capita and how well their property rights are protected. South Africa has, over the past few years, fallen on that property rights index. There was less investment because people are uncertain about what is going to happen with regards to property rights.
Dr Mahlati said that everyone wanted to protect property rights. When looking at this the fundamental issues need to be dealt with. Protection of rights "cannot exist in a sea of inequality". Moody’s and other ratings agencies show how unequal South African society is. There was a danger of instability that comes from inequality. She raised the point that some of the legislation that was supposed to deal with land reform was unconstitutional and outdated. That legislation needed to be looked at.
Mr Q Dyantyi (ANC) wanted to respond to the comments made about Moody’s. That which was man-made could be changed. Mistakes committed must be mistakes corrected. The main purpose of this constitutional dialogue was for the members and stakeholders to assist on the modus operandi on how best to address this sensitive issue. There was no way of redressing the injustices of the past without hurting some people.
Mr Masithela said that land in South Africa was an emotive issue. He agreed that the amendment would be symbolic but also stated that it would impact on the economy of the country. The ratings agencies want stability in the country. The amendment process would address inequality and instability in South Africa. Land ownership has a racial and spatial connotation. If the Committee fails to address it, a problem will arise. No one should be scared of the land appropriation process so that all South Africans can benefit.
Mr Shivambu stressed that the Committee had a deadline on 31 March 2020 and the processes needed to be followed. He proposed that the Committee puts all the formulations into a Bill and introduce the Bill officially because the Bill would not be an Act yet. The ‘scarecrows’ are allowed to voice their opinions but at the end of the day they needed to amend the Constitution to make expropriation without compensation possible. He was worried that people were trying to reduce the land issue to agriculture only. It was far more complex than just agricultural land as there was landlessness in urban areas.
Mr van Zyl of TLU SA said that everybody had a different perspective on the unfolding of South African history. He talks on behalf of the agricultural sector and his organisation had asked government why it did not give people the full title deed of the RDP houses. They could have used those houses as capital and collateral. Over 60% of the South African population was urbanised and therefore a commercial agricultural sector was needed to produce food for those people. The agricultural sector was very important. TLU South Africa had submitted many proposals and submissions to government over the past twelve years and government simply ignored those proposals. South African needs economic growth and this legislation needs to take that into context. If the Constitution states that the government can expropriate assets, land or property, without paying for that – who would invest in such a country? The Committee needs to ensure that the legislation will result in growth for the South African economy.
Mr Dyantyi said that expropriation without compensation would occur but that government had no intention of destroying the economy or destabilising food security in South Africa.
Acting Chair van der Westhuizen stated that the Constitution is the basis of all the law in South Africa and that it cannot be subverted by any legislation. He pleaded with those present to listen to the views of others who are present and to be tolerant of differing opinions. He asked the Committee to focus specifically on its mandate as there were many points raised in today’s meeting. It would not be possible to amend the Constitution with all the various points being included. The Committee needed to be specific on the way forward in the amendment process. He thanked the Committee for their patience and handed the meeting back to the regular Chairperson.
Chairperson Motshekga said that the triple challenge of poverty, unemployment and inequality has degraded and dehumanised the people of South Africa. Many of the social ills are not because people have become animals but because people have been dehumanised. The challenge ahead must be faced together. International law must be respected but international law was designed while many African people were still slaves. Africans did not have an input into those laws. He urged everyone to keep their minds open. The timeframes would not be compromised and the deadline would be met. He thanked the facilitator, Judge van der Westhuizen, and Adv van der Merwe for their impartiality in dealing with the meeting. The Chairperson thanked the stakeholders from the public for coming to the meeting and voicing their opinions and concerns. He reiterated that Parliament was an open space for them to voice their concerns. The timeframe will remain the same and would not change.
The meeting was adjourned.
- Media Statement - Ad Hoc Committee on Section 25 Holds Fruitful Land Dialogue
- Media Statement - Workshop on Land Expropriation Without Compensation
- Constitutional Review Committee Report on Review of Section 25 (15/11/18)
- Proposed amendments version 3 (08/03/19)
- High Level Panel Report on Assessment of Key Legislation and Acceleration of Fundamental Change
- Fifth Parliament Ad Hoc Committee Report on Amending Section 25 (13/03/19)
- Presidential Advisory Panel on Land Reform and Agriculture Report
- Parliament Legal Advisor: Consultations on a Committee Bill amending section 25 (6/11/19)