Draft bill amending section 25 of the Constitution: briefing

Meeting report

Opening remarks
The Chairperson welcomed everyone, including members of the press (in Afrikaans).

Correspondence: Letter from AgriSA
The Chairperson informed the Committee that, before he started with the business of the day, he wanted to deal with a letter addressed to him relating to the timeframes of the Committee. He thought that it would be important for people more knowledgeable and with more experience than himself to provide guidance as to how to deal with the letter from AgriSA.

The Chairperson informed the Committee that Telana Halley-Starkey, Legal Advisor, Constitutional and Legal Services Office (CLSO) at Parliament would present the Bill. However, he would ask Senior Legal Advisor, Adv Charmaine van der Merwe, also from the CLSO, to address the correspondence.

Adv van der Merwe explained that the letter from AgriSA had been written on 29 November 2019 and had expressed a concern regarding the publication of the draft Bill. The Bill that was to be presented to Members today was for them to discuss, consider, propose changes to, or to accept as it was presented. Once Members had accepted the Bill, it had to be published with a call for comments. In general, there was a concern about publishing the Bill over the festive season. It had been done before but there had always been complaints about Bills published in November/December. AgriSA was raising a similar concern about publishing over the festive season. AgriSA was of the view that the proposed seven weeks was insufficient and was proposing that at least three months be allowed for public comment.
Adv van der Merwe stated that the Members had to bear in mind what the Constitution required of the Committee. Section 59(1)(a) of the Constitution states that the National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its Committees. She informed Members that it was important to remember that public participation was an obligation of the National Assembly (NA). A similar requirement was placed on the National Council of Provinces (NCOP) in section 72.
She suggested that the Members should bear in mind that the Bill had not arisen out of nowhere, but that there had been extensive consideration of the matter. The desirability of the Bill had been extensively consulted upon during the Constitutional Review process. That had to be kept in mind. They could not ignore the extensive consultation that had taken place. The publication of the Bill and the call for comments would focus on the wording of the Bill that was being proposed. For that, an extensive consultation period was not necessary. The consultation was now technical and not a discussion of principle. Consultation was about the wording and whether full stops were in the right place, etc., or whether something had been overlooked in making explicit what was in the Constitution.
Adv van der Merwe stated that the requirements for consultation specific to an amendment to the Constitution were found in section 74(5):

“At least 30 days before a Bill amending the Constitution is introduced in terms of section 73(2), the person or committee intending to introduce the Bill must— (a) publish in the national Government Gazette, and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment.”

Adv van der Merwe assured Members that they were complying with sections 59 and 74. When the programme had been presented to the Committee, Legal Services had indicated that there would be two publications. The Committee had adopted that programme with the two publications. The first publication was in the Government Gazette in December 2019, which was the formal requirement of section 74 and the Rules of Parliament. That formal publication would allow the Committee to alert the National House of Traditional Leaders (NHTL). There would have to be classification of the legislation and, because it affected property, there would be a recommendation to the Joint Tagging Mechanism (JTM) that it be referred to the NHTL because it affected land, and also that it be forwarded to the provincial legislatures as that was a requirement in terms of section 74(b). The festive period was the reason those things had to be done as soon as possible. Parliament could not wait for 2 January 2020 to give the legislatures notice of an important Bill. They needed time to prepare their programme for 2020.
Adv van der Merwe explained that there would be a second publication, which was above and beyond the requirements of the Constitution, on the first Monday in the new year, 6 January 2020, in national newspapers. People could go away on holiday in December and not worry about the Bill as the public would have three weeks in January to submit their comments. In addition, it did not mean that once those comments had been received, that there would be an absolute bar on further gazetting for comment. For example, the National Health Insurance Bill had been re-gazetted after a consideration of the public comments.
In summary, the programme requiring the gazetting in December 2019 and the advertisement in national newspapers in January 2020 complied with the requirements of sections 59, 72 and 74 of the Constitution and should the Committee come back in early February 2020 and wanted to give more time, that was always possible. However, at the moment, the programme could be left as is.

The Chairperson said he did not want to debate the matter. The letter was actually just being tabled but he would take comments, seeing that there were hands raised, as he did not want to suppress debate. He had tabled the letter so that the response was not just his decision but he did not want a debate on correspondence.

Dr C Mulder (FF+) noted that Members had received an interpretation from legal services with regard to the letter that the Chairperson had received. The interpretation by legal services was mostly, and technically, correct but the matter went beyond being technically correct. He referred Legal Services to section 57 of the Constitution which instructed that the National Assembly may:

Section 57: (a) determine and control its internal arrangements, proceedings and procedures; and (b) make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement.”

Dr Mulder pointed out that this was the first ever Amendment to the Bill of Rights. Members all knew that SA came to a standstill as of 2 December, and the fact that they were working was interesting, technically. Legal Services was technically correct but the perception was that the Committee was scheduling the gazetting to make it as difficult as possible to comment on the Bill.

If there was a request to look at the timeframe, he believed that the Committee should do so. It should not have an impact on the timeframe that the Committee had set for itself at the end of March 2020. If the Committee proceeded, it would play into the hands of those who would be taking the matter to court, in any case. He had no problem either way. The Chairperson had the majority and he could do that but he, Dr Mulder, was saying that to publish it because that was how it had been done in the past, was simply playing into perceptions. His plea was that the Committee take the letter seriously. There was no reason why they could not extend the period and avoid doing it over the festive period because the Committee was not assisting itself in the process.

Ms R Lesoma (ANC) thanked the Chairperson for taking the Committee into his confidence and presenting the correspondence. That was a demonstration of acknowledging and appreciating the importance and the sensitivity of the business that was before the Ad Hoc Committee. She suggested that the Chairperson does the same if he receives any other correspondence so that all of the Members could be on board. She added she was not suggesting that Members would like to chair.  Secondly, Legal Services had provided the Members with the legal process and the supporting evidence thereof. Members had agreed on the programme which was quite activity-based and very specific. The Committee had agreed on the programme and adopted it. She did not want to go beyond March 2020. That matter had been deliberated on and could no longer be an issue.

Thirdly, she requested that the Chair respond to the letter in appreciative terms. She was comforted by the knowledge that AgriSA had been actively engaged in the process from the start, and the Committee really appreciated that, but there had to be a start and an end to the process. The country could not be left in suspense. It was not about the majority in the Committee, or the House. They wanted to take all South Africans on board with the process. However, there was an issue that needed to be addressed and it would be addressed.

Dr A Lotriet (DA) asked whether Legal Services had looked at previous judgements about gazetting for public comment during the festive season. She recalled that there had been findings or comments on asking for public comments over the festive season.

Mr W Horn (DA) said that, in addition to what Dr Lotriet was asking, Members had the benefit of the Doctors for Life Constitutional Court Case which had dealt specifically with whether it was sufficient for a legislature to technically adhere to the requirements of facilitating public participation. In that case, the Court had found that it was not a tick box exercise and the Court had to determine whether the legislature had acted reasonably. To determine whether the legislature had acted reasonably, one had to answer three questions which related to:  the nature of the legislation concerned; the importance of the legislation concerned, and the intensity of the impact of the legislation on the public.

Mr Horn stated that it was evident that the legislation met those criteria. The extensive public comment showed that it would have a huge impact on society. He supported Dr Mulder in that he believed that the Committee had to be very careful not to just say that it was adhering to the minimum requirements. Given the fact that there was, for all intents and purposes, a shift down in SA from at least mid-December to mid-January, he would think that the Committee should not count those days in determining the period.

Mr N Matiase (EFF) stated that people had waited 367 years for the moment to arrive and finally the arrival was on the horizon and could not be stopped. In the past, the EFF had expressed its discomfort with critical processes of Parliament to be communicated during the festive season because the level of consciousness of the people was a bit low. If they had to do anything to deny the naysayers to derail the process or frustrate the process on technical grounds, he would not have a concern if the issues raised were taken into account because the legislation was almost there. At the pace at which they were going, the people were almost unstoppable. If the Bill of Rights could be cited as a problem, the Committee should take care that no one derived joy from derailing or sabotaging the process. Whatever the Committee did, it had to be mindful that the people had waited for 367 years and could not wait for more than three months for the process to get off the ground.

Adv G Breytenbach (DA) supported Dr Mulder and Mr Horn. The Committee was talking about very important legislation that would have a massive impact on SA society as a whole and it had to be very careful not to make any mistakes. The deadline was self-created urgency. There was need to extend the deadline to give proper time for comment. She urged the Committee to show SA that the Committee took the responsibility seriously, took the legislation seriously and that it took the citizens seriously by giving South Africans sufficient time to comment on the Bill. If the Members had to work a few extra nights to meet the deadline, that did not matter. However, to give South Africans time to understand the Bill and to comment on it was very, very important.

The Chairperson stated that the letter had been addressed to him in good faith and it had offered an opportunity for the Committee to remind the public that the Committee did not want to do anything behind the backs of the people of SA. It had been important to reiterate the rules of Parliament and why the Committee had to act as it was acting. The Committee also had to bear in mind that it was a continuous process and not a new process that stemmed from the work done by the Constitutional Review Committee (CRC) and even the mandate given to this Committee by the NA referred to the work done by CRC.

He agreed with Mr Horn that legal services was technically right and AgriSA had done a good job (considering that there might be others with similar concerns) and had given the Committee an opportunity to inform all South Africans why the Committee was proceeding. The balance of evidence was such that they should proceed and the media should inform all South Africans why they were proceeding. He also agreed with Ms Lesoma that the balance of evidence was such that the Committee should proceed.

The Chairperson suggested that the Committee should ask the media to inform South Africans why it was doing what it was doing because, although, as Dr Mulder had said, it was the first time that Parliament was amending the Bill of Rights, the question of land was such a sensitive matter that it could throw the country into a crisis. The Committee needed to address the matter urgently and to make sure that there was certainty as to where SA was going. It was in the interest of all South Africans that the matter was resolved and the presence of the Members showed that they were determined to resolve the matter urgently with due regard to the rules of Parliament and the decisions of the courts. He added that he respected the SA courts highly.

The Chairperson stated that he would respond to AgriSA and issue a statement urging the public to participate in the process. It was the process of the public, not the process of the Committee.

He would ask for the presentation of the Draft Bill by Ms Telana Halley-Starkey but give political parties an opportunity to consider what was being presented, he suggested that the Committee should meet again on Thursday that week.

Dr Mulder asked the Chairperson to confirm that the timeframe would remain and that it would not be extended. If so, he disagreed with the decision.

Adv Breytenbach also objected.

The Chairperson informed Members that he had come to the determination that he should not accede to the request by AgriSA but that the Committee took the opportunity to remind the public of the urgency of the matter and inform the public that the Committee was correct in proceeding.

Dr Mulder expressed concern that the Members would receive copies of the Bill for the first time in the meeting and that they would have to engage with it on the same day. He reminded the Chairperson that Parliament was closing on Wednesday and that some parties would not have caucuses before Thursday. Did he expect Members to take positions on the Bill without a caucus, or what was he proposing?

Ms Lesoma said that when the Members had started on the journey, they had agreed that they would do their level best to prioritize the process. In the back of her mind, she thought that the Chairperson’s suggestion had been a result of that undertaking. It became difficult when a proposal was put before the Committee and there was no suggestion. If Dr Mulder had a proposal, he should put it before the Committee so that Members could apply their minds. She noted that the NCOP was also Parliament and their business only ended on Friday. She would behave as if she had not heard the question about the caucus because it was not on the table.

Dr Mulder stated that while the Chairperson had stated that the overwhelming evidence was in favour of his decision, he had heard it differently. He had not heard an accommodating view. No one had said that they should move away from the deadline that the Committee had set itself for the end of March 2020. It was a question of whether it was possible to alter the programme so that the Committee could accommodate AgriSA without shifting the deadline. He had to consult with the caucus and his party. Did the Chairperson want the Committee to adopt the Bill on Thursday so that the Bill could be published in terms of the current process? He could not agree or disagree.

Dr Mulder repeated that an amendment to the programme did not mean that the end of March date had to be changed. If the Committee had to sit for a week in the new year and work on databases, etc., it could be done. He was just asking.

The Chairperson asked Members to bear in mind that the Committee did not have the right to produce a final Bill. It had only to adopt a draft Bill to be gazetted for public comments and the Committee would engage further once the comments had been considered.  The matter was a process. The Committee was not producing an Act but a Bill for public comment. The matter had to be left there and not further belaboured.

Mr P Moroatshehla (ANC) stated that the input of the Chairperson was assisting Members to understand their role but, at the same time, because they wanted to walk the walk together, he asked that the Committee meet the following day at a venue such as the current one so that Members could be called to the House if necessary. That would give Members ample chance to have a look at the draft Bill. However, as the Chairperson had indicated, the role of the Committee could not be debated or argued against.

The Chairperson explained that the window was the following day so that parties could engage and the Committee would meet on Thursday. The matter was closed.

Briefing on the proposed draft Bill for the Eighteenth Amendment of the Constitution
Ms Telana Halley-Starkey, Legal Advisor, CLSO, stated that she had the privilege of presenting the proposed draft Bill for the Eighteenth Amendment of the Constitution.

Legal Services had proposed the classification of the Bill as a Section 74(2). There were three types of Constitutional Amendment Bills. Section 74(2) of the Constitution stated that Chapter 2 may be amended by a Bill passed by (a) the National Assembly, with a supporting vote of at least two thirds of its members; and (b) the National Council of Provinces, with a supporting vote of at least six provinces. 

The Amendment Bill proposed amendments to section 25 which was included in the Bill of Rights and therefore fell squarely into Section 2 of the Constitution and was a section 74(2) Bill. However, Legal Services would prepare an advisory note to the JTM as soon as the Bill was ready for publication. There was no Bill number but it would be added when the Bill was ready for publication.

A consolidated version of the amendments, i.e. as they would appear once they had been consolidated in section 25, was handed to the Members for ease of reference.

Ms Halley-Starkey explained various aspects on the Bill and that the only change was that the compensation for expropriated land may be nil. She indicated that there was a preamble to the Amendment Bill but it would not form part of the Constitution. Judge Albie Sachs had proposed a preamble to provide the context of the Amendment and to acknowledge the injustices of the past. As it was a nation-building exercise, the Preamble spoke to that.

Clause 1 (a) stated that property may be expropriated and that, provided it was in accordance with subsection (3A), a court may determine amount of compensation is nil
.
Clause 1(c) stated that national legislation must set out specific circumstances where a court may determine that the amount of the compensation was nil, subject to section (2) and (3).

The Chairperson reminded the Committee that it was dealing with the proposed formulations. Inputs should relate to the formulation. If a Member took a different view of the formulation, he or she should give an amendment of the formulation and not give long statements or an oral dissertation.

Adv Breytenbach referred to section 3A in the Amendment Bill: “National legislation must, subject to subsections (2) and (3), set out specific circumstances where a court may determine that the amount of compensation is nil.”  What would prevent the Committee from setting out the circumstances that they had in mind in that Amendment, with a rider that the Courts would have discretion, as they would have in any event? In her view, that would make Amendment more complete.

Dr Mulder stated that, as a point of departure, he supported the proposal by Adv Breytenbach. There was no reason why separate national legislation was required. There was no reason why those circumstances could not be put into the Constitution. Secondly, as it was the first time he had seen the Bill, he could not take a view as he was not representing himself and he could not really participate to say whether the Bill was good or bad.

The Chairperson informed Dr Mulder that the process was also to empower him when he consulted. His presence was appreciated. He appreciated Dr Mulder’s democratic right to consult.

Mr Horn asked for feedback on whether, if the circumstances were not set out in the Amendment, the Committee would not be bringing the Amendment into question. The Committee was amending the Bill of Rights and there were specific requirements or thresholds in terms of support when the Bill was taken to the National Assembly. If national legislation was going to flesh out an amendment to the Constitution, he reminded Members that national legislation only needed a 50% majority in both Houses. Parliament had to be very careful not to set itself up for a situation where an argument could later be made that Parliament had eroded its own Bill of Rights by not amending it to its fullest and by allowing Parliament, for all practical purposes, to amend the Bill of Rights by a simple majority. That was his view and so he was asking for advice from the parliamentary Legal Services.

Ms Halley-Starkey replied that the Constitution was a framework legislation that stated only the principle, such as section 33, which was the promotion of administrative justice, and section 32 which was the promotion of access to information. They both needed enabling legislation which was the Promotion of Administrative Justice Act (PAJA), and section 32 which was the Promotion of Access to Information Act (PAIA). That legislation gave detail. In addition, Legal Services had not been given the instruction to add the details. The mandate had been to make explicit that which was implicit.

Adv van der Merwe added that framework legislation and enabling legislation was there to allow things to happen on the ground and to develop. If a number of factors were listed in the Constitution, Members had to remember that in five or ten years’ time, one or more factors might not even be relevant. For example, if the international treaties fell away and the survival period ended, the Constitution would have to be amended. It was much easier and faster to amend national legislation.

In respect of the constitutionality of the Amendment itself and the thresholds, section 3A was specifically subject to subsections 2 and 3 to make it very clear the requirements for expropriation, i.e. public interest and public purpose. It also required that the compensation be just and equitable. All of the circumstances and section 36 that applied to any right that was not limited in the Constitution, would also apply. Any national legislation would have to comply with all of those principles so she did not think that there would be a concern regarding constitutionality if the factors were not included in the Amendment Bill. There were many examples of where that had been done. It was not that it could not be done. If the Members gave Legal Services the factors to include, they could be included in the Amendment.

The Chairperson said that it was correct to say that all agreed that the specific circumstances should be set out but setting them out in the Constitution was not advisable for the good reasons that the Legal Services had indicated.

Dr Mulder said it was exactly the opposite: the amendment infringed on someone’s right to property by offering them zero compensation. It was not PAIA where people had the right to information and the legislation explains how that right should be enforced. The section 25 Amendment was an Amendment that infringed on the right to own property by taking it away from somebody and giving them nil compensation. The other conditions remained in the Constitution but he was referring to those circumstances where the state was going to give someone nil for their property, and those should be in the Constitution so that there should be no uncertainty. It was not a valid argument to say that one had to amend the Constitution. Constitutions were living things and one had to amend them from time to time. The specific circumstances should be clearly set out. If those circumstances were in national legislation, Members in the next Parliament could come and say that they had other circumstances. It was completely unacceptable. He suggested that the Committee got to the point where the specific circumstances were in the draft and the Committee looked at that. If they did not do that, the Chairperson was expecting Members to agree to something that was going into national legislation at some vague time.

The Chairperson asked Dr Mulder, as a long-standing Member of the House, if he agreed that there was a process that was dealing with national legislation on that issue and was running concurrently with their legislation, and which addressed his question.

Dr Mulder understood the concept of a current process but he disagreed that there was a concurrent process at the time as the national legislation process would not come into being until the Constitution was finally amended. Then only would the national legislation process get underway. One could not ask for a green light without the Members knowing what the specific conditions for nil compensation were going to be. One could just imagine the outcry if that occurred.

Dr Lotriet fully agreed with the sentiments expressed by Dr Mulder. Section 3 of the Constitution provided very specific circumstances so it would not be strange to include the circumstances in the Constitution in preference to leaving it to national legislation where it could be changed by a 50% majority. She fully supported that if the Constitution was going to specify a nil compensation, then it was very important that the constitutions specified what those requirements were.

The Chairperson said that both Dr Mulder and Dr Lotriet had seen the presentation by the Department of Trade and Industry (dti) that had said that there were international treaties that were being reviewed that might affect that matter. If the Committee set out the specific circumstances, it might find that the amendment of the Bill required the Committee to come back to the matter. He thought that the explanation by Legal Services was very persuasive. Had they considered that?

Mr Matiase stated that the amendment process of the constitution to effect changes in section 25 should break ranks with the current paradigm and if it failed to break new grounds in facilitating a new paradigm, the Committee was merely wasting its time. The specific circumstances that Dr Mulder had referred to ought to be made as clear as possible in order to avoid confusion and, in making such circumstances clear, it had to be stated categorically that the state through its appropriate organisations had to be empowered to make rulings at that particular time. Courts had to be enabled to resolve disputes at the end of the process.  The state should not be emasculated as Members were trying to do with that argument. The state had the right to decide whether compensation was approved or not. The courts could not take away the state’s right to decide.

The Chairperson stated that, in line with freedom of speech, no one should cast aspersions and no one should make others feel intimidated. Members should allow everyone to engage. It was a wonderful opportunity to allow everyone to express themselves on that matter. He added that he was speaking to everyone.

Consideration of a list of circumstances under which nil compensation could be granted
Ms Lesoma said that, listening to colleagues, it sounded convincing but Dr Mulder should give examples of the circumstances that he was thinking of. The Committee should also not lose sight of the reference made, in one of the meetings, to the Tribunal that would make a determination if the person that was being appropriated were not satisfied. She asked that Members bear in mind that one could not be over-prescriptive because there was a property clause in the Constitution and an Act. She was saying that she was hearing what they were saying but they had to give examples and the Committee could come back on the Thursday and clean it up.

The Chairperson asked what capacity did the Members have to list things so that the list would be exhaustive. Were they not shooting themselves in the foot?

Dr Mulder welcomed the sentiment of his colleague in the ANC. He had not applied his mind to the specific circumstances and the list but he did know that the President had given a list when he had spoken in Parliament on expropriation without compensation. He recommended that the Committee should look at that list.

The Chairperson asked Dr Mulder to repeat what he had said. Some people might not remember what the President had said.

Dr Mulder explained that his colleague from the ANC, Ms Lesoma, had stated that his argument was very convincing, i.e. that it should be clear in the Amendment what the specific circumstances should be and that should not be left to national legislation because there were implications in that process.  She had also said, correctly, that it would assist if he could give examples of what he meant. He had, however, not applied his mind in terms of those circumstances but the President, when he had spoken in Parliament on expropriation without compensation on behalf of government, had presented a list of three or four circumstances under which nil compensation could happen. Perhaps the Committee should take a look at the President’s proposal to determine whether it was exhaustive or whether the Committee should add more.

Ms K Mahlatsi (ANC) stated that the Committee was moving nicely in the right direction in as far as what the Committee needed to achieve. Ms Lesoma had said that it could not be assumed that Members seated there shared the same sentiments as the President. They themselves had come up with a view that there could have been other circumstances beyond those stated by the President.  The Committee should return on Thursday and not go further at that meeting.

The Chairperson said that if there were other circumstances, Members should say so. Dr Mulder was not saying that he wanted to quote the President.

Dr Mulder stated that if the President was correct, he would gladly quote the President. But, maybe there were other examples and so the Members should go away and apply their minds. He was of the view that those circumstances should be included in the Constitution.

The Chairperson said that the session was empowering everyone so that, on Thursday, the Members could give more examples of the circumstances.

Mr Horn referred to the Chairperson’s concern that the Committee would never get to an exhaustive list, and so should leave it for national legislation. That in itself spoke to the uncertainty that would linger on if the circumstances were not listed in the Constitution. That was as simple as it was.

The Chairperson stated that he had been playing the role of the devil’s advocate. He was not making a ruling on that matter.

Ms Mahlatsi stated that the Committee agreed and was moving quite nicely but they had exhausted the matter and she asked to move to the next item on the agenda.

The Chairperson agreed that the Committee had dealt with the circumstances. All Members had been empowered to could go and think, consult with the parties, and even with children because children thought faster than they did nowadays, and Members should come back on Thursday and enrich the debate.

Ms Lesoma asked about the two documents before her. She asked about the relationship between the two.

Ms Halley-Starkey explained that the first document was the Amendment Bill; the second document was to show Members what the Constitution would look like once the Amendments had been included in the Constitution. It was like a B Bill.

The Chairperson called for last comments.

Dr Mulder stated that he understood the process but he was not too sure if the Chairperson intended to have many more meetings in the next few days, apart from the Thursday meeting as some Members had other programmes and were leaving for meetings abroad. He wanted to alert the Chairperson to that fact.

The Chairperson stated that the programme had been distributed and the Members knew what had to be done between then and the end of March 2020 and all Members of Parliament who considered the matter of national interest would put aside holidays abroad and make sure that they discharged their obligation to the nation. He added that the meeting on Thursday was not unreasonable if they wanted to maximise participation.

Dr Mulder responded that he was not going on a holiday abroad. The trip was an official visit to the German Parliament with the Deputy Minister of Finance and other senior MPs. He wanted to stress that it was not a holiday. Thursday was fine but after that it was impossible for him to attend meetings.

The Chairperson took the view that by Thursday, the Committee should have a draft Bill that would engender future engagement so people could go abroad knowing that the draft Bill had been gazetted for further engagement.

Dr Mulder added that his colleague from the EFF had made a comment that he hoped he would not come back. He wished to assure colleagues that he would be back.

The Chairperson noted that Ms Mahlatsi had said that the Committee was doing well. Legal Services had done really well and had empowered the Members with food for thought. The Committee had the following day to consider the Bill and on the basis of inputs from Members on Thursday, Legal Services would finalise the draft.

Consideration of the role of the Courts
The Chairperson asked if the Committee wanted to make the courts part of the processes or did Members want to give the court the right to review. He noted that the capacity of the Courts was limited and it took a long time to deal with the issues. Should the Bill give the Courts jurisdiction or merely powers of review? There might be a situation where the process could be delayed for another 25 years. However, if the courts were simply to review matters, that would speed up the processes. Courts sometimes took a long time to deal with matters. Did they want to give the Courts jurisdiction or merely the powers of review?

Adv Breytenbach stated that the courts had the right of review in any event and there was nothing that the Committee, the Chairperson, or anyone could do about it. To suggest that courts were a bureaucracy was mildly contentious and she was sure that he had not meant it, and she would not tell anyone. The courts were not a bureaucracy. They were there to ensure fairness and to apply the law. To take the courts out of the process made very little sense. The Committee was trying to produce a process that was fair in terms of the amendment that they were proposing. There could be no fairer route than going the route of the court. To suggest that the courts were some sort of trouble was something that she found highly objectionable. The courts had the right of review so that was sine qua non.

The Chairperson assured the Committee that he respected the courts but he was playing the devil’s advocate for the purpose of stimulating debate so that Members would exhaust all avenues of debate.

Mr Matiase reminded the Committee that there were more than 7000 unresolved land claims cases before the Land Claims Court and that was what had led to the restlessness and an outcry that had led government to undertake land reform and expropriation without compensation. If the same situation was repeated where courts were held up by frivolous counter claims and those who wanted to hand on to the land and would not want to let go of the land that they had acquired unlawfully through criminal means, they would not be breaking new grounds. The courts had a role to play as forums to mediate on disputes. He did not question the role of the courts but, at the end of the process, the state had to have the right to redistribute land. Courts had to come at the end of the value chain.

Dr Mulder stated that international best practice was that the courts adjudicated when there was any appropriation and even more so if appropriation was without compensation. That would be just and fair. If the courts were to be removed from the process, that would mean another change to section 25 to remove the courts from that section of the Constitution. He argued that it would begin a new debate. He agreed that there might be technical problems and backlogs, but the Committee could not take the courts out of the process.

Mr Horn informed Mr Matiase that the delay could not be laid at the door of the courts; the administrative decision-making was the reason for the backlog. At first, there were no permanent judges at the Land Claims Courts and the budgetary provisions were simply lacking. The Chairperson would recall that from the time that he was the Chairperson of the Portfolio Committee on Justice and Correctional Services. He pointed out that the Committee was back on the circular argument that the country had to embark on expropriation without compensation because government had wasted the money set aside for land claims in the first 25 years.

Mr Horn agreed with Dr Mulder that the Chairperson’s argument bordered on an additional amendment to the Constitution which was not within the authority of the Committee as given by the House. To take away the role of the courts in determining expropriation was unacceptable as, apart from international practice, it was a right enshrined in the Constitution and it was a by-product that, constitutionally, had to be dealt with in a very specific manner. To consider acting on the Chairperson’s devil’s advocate proposal went beyond the authority of the Committee and would go far beyond “making what was implicit, explicit”.

The Chairperson asked whether it was not true that the Executive expropriated and then the courts reviewed the decision of the Executive. How was that taking away the right of the courts?

Mr Horn replied that that was not true. In terms of the Constitution, courts in SA had the authority to “determine” compensation. That was different from reviewing. He explained that he could take the Executive on review for expropriating his land if he felt that the reasons for expropriation were not valid. However, even if the courts agreed with the reasons, only the courts had the final say to determine the compensation and the Chairperson’s proposal wanted to erode or take away that right from him as a citizen.

The Chairperson reminded him that the devil’s advocate had given him an opportunity to expand on his views.

Mr Moroatshehla noted that everyone was hiding behind the devil’s advocate but the long and the short of the Chairperson raising the questions was the simple fact that the Members of the Committee had to understand that the Committee had been entrusted with a mammoth task. If Members were going to hide behind excuses justifying the unjustifiable that the courts would cause unnecessary delays, at the end of the day, they would be plunging the country into the abyss of the unknown. SA had an opportunity to address the redress of the past and the country should not leave it to the children who might not be able to come to the table to talk over those things. He agreed but the Committee should not promote or condone that Courts be an excuse for what had to be achieved. The issue of the Courts would emanate from the Committee and if anyone was misleading the public out there, it would be the Committee itself because it was moving back when it should be moving forward. He said that Members should have a spirit of cooperation so that Members found an amicable solution together as one.

Ms Lesoma had difficulty in understanding and following. She referred to the “B” Bill document:

25(1): No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. She proposed that Clause 1 stayed the same as she felt everyone agreed.
25(2): Property may be expropriated only in terms of law of general application— (a) for a public purpose or in the public interest. She assumed that everyone agreed.
25(2)(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.

The role of the courts was not to be engaged only when someone felt aggrieved. She would revisit the previous discussions about the Tribunal that would also engage. She was not questioning the role of the court. She referred to the line, “The amount that would be compensated…” Did legal services suggest that the line be deleted?

Ms Halley-Starkey explained that the highlighted sections were inclusions. Nothing had been deleted.

The Chairperson thought that by Thursday, the Committee would have a Bill that could be gazetted.
On Thursday they would engage further after Members had engaged with their parties so that, if they could reach finality on Thursday, Dr Mulder would be free to go abroad.

Dr Lotriet said that she had a serious problem as Parliament rose the following day and there would be no caucus before Thursday and so Members would be sitting there without a mandate. That was a serious problem for her and her colleagues.

The Chairperson suggested that parties convene their caucus on Thursday morning and the Committee meets on Thursday afternoon. “Caucus had not created them; they had created caucus”. If the problem was not handled, it would be left to their children. Members did not want to leave the problem for their children as they should be focussed on development. Could Members go to their chief whips and request a caucus on Thursday morning so that they could focus on matters of national importance that afternoon?

Mr Horn said that the ANC needed a caucus as some Members had expressed the sentiment that they disagreed with their leader, the President.

His remark caused an outcry amongst ANC Members.

The Chairperson said that the good thing of being a member of the ANC was that one was free to make one’s own decisions. He assured the ANC Members that Mr Horn was joking as he had not heard them say it like that.

Ms Lesoma angrily stated that one should not joke as one did not know how it would be perceived out there. That one (supporting the President’s statement) was clear. It was in the ANC resolutions. They were not going to allow the issue of going back and forth. If those Members wanted to consult, they could but on Thursday they would meet and deal with the Bill as per the programme to allow due processes to unfold. Members had to be principled and deal with it. They could not change their minds when the issue did not suit them.

The Chairperson agreed with her. On Thursday, they would reach an agreement on the process for further consultation. On Thursday, whether Members were in attendance or not, the Committee would finalise the Bill for public comment as they were just laying a foundation for a continuation of the process. He stated that Members deserved the title of “Honourable” as they had done so well.

Concluding remarks
The Chairperson suggested that the meeting be held in the morning. Consultation did not have to be conclusive as the process was a continuous process and they had to keep it as democratic as possible right up to the end.

The meeting was adjourned.