Draft bill amending section 25 of the Constitution: discussion & publishing for comment

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Meeting Summary

Call for Comment

ATC191209: First Report of the Ad Hoc Committee to Initiate and Introduce Legislation to Amend Section 25 of the Constitution on the Draft Constitution Eighteenth Amendment Bill, dated 5 December 2019

Parliament: Section 25 process
RSA Constitution
Rules of Parliament

2019 Draft Expropriation Bill

The Ad Hoc Committee met to finalise the Draft Constitution Eighteenth Amendment Bill for gazetting for public comment.

Several parties stated that they had been unable to present the draft Bill to their caucuses as Parliament had gone into recess the previous day. There was a concern from the DA, the ACDP and the FF+ that the circumstances under which land could be expropriated with nil compensation would not be included in the Amendment to the Constitution, but in a general law of application that would only require a 50% majority for it to be passed by Parliament. Members requested the list of conditions that had apparently been included in the Expropriation Bill, although none of the Members had seen the list. There was some concern regarding a previously discussed question about making the state the custodian of all land in the country but the Committee agreed that that proposal had been rejected.

The ANC made proposals for minor amendments and that it be made explicit that 1913 was not a cut-off date for expropriation of land if a claim prior to 1913 could be proven. The DA proposed a list of circumstances under which land could be expropriated, one of which was that communal land held by a chief could be expropriated. The IFP objected strongly to that circumstance.

After lengthy discussions during which it was argued that the proposals could not be included in the Bill to be gazetted as Members would need to see and consider the revised Bill before it could be approved by Members, it was decided that the original Bill as presented by Legal Services at the previous meeting would be gazetted.

The Committee agreed that the Bill would be gazetted without delay and that the closing date for comments would be extended from 27 January 2020 to 31 January 2020.

Meeting report

Opening remarks
The Chairperson noted an article in the Citizen newspaper titled “Land Reform echoes of Zim”. He had been to Zimbabwe to talk to politicians and other people and had asked whether they had been observing what was being done in South Africa and whether there were similarities between how Zimbabwe had handled things and how SA was handling things. The Zimbabweans had said that there were no similarities because Zimbabwe had Zanu-PF. It was not a multi-party democracy like that in SA where citizens could pride themselves on not having a one party state. SA was a multip-arty democracy and the government listened to all the voices. So, there was no comparison between SA and Zimbabwe. He respected researchers and media because they were the conscience of society but that report did not reflect what was going on in Parliament.
The Chairperson stated that he was happy that all parties were there that day and that they could give inputs and make their contributions. There had been brilliant contributions by Legal Services in the previous meeting. Members could respond to proposed Bill and give inputs so that by the end of the meeting, the Committee could give Legal Services a mandate to go and finalise the draft Bill, as amended, for publication.
Dr A Lotriet (DA) said that when last the Committee had met there had been an expectation that parties should get their caucuses together, but, as parties had suggested, it had been impossible to meet with the need to vote on the Adjustments Appropriation Bill the previous day. The position of the DA remained the same. The party still had a serious problem with 3(A) in terms of national legislation. One could not have a situation where, by means of legislation requiring an ordinary majority, the circumstances of when to expropriate without compensation would be legislated. That remained the position of the DA. She reiterated that the party had not been able to go to its caucus to get a mandate on something as extremely important as the Amendment to the Bill of Rights.
She stressed that a list should be included in the Constitution to make it very clear under which circumstances the compensation would be nil.
The Chairperson replied that the national legislation had been finalised and the list existed there.
Adv S Swart (ACDP) stated that his party had also not had the opportunity to discuss the matter in its caucus but the party was on record that it is opposed to the expropriation of land without compensation. He was very mindful of the fact that the country was going into the Christmas season and he had seen the correspondence that the previous year, the Department of Land Reform and Rural Development had circulated the Departmental Bill over the Christmas period. He wanted to express the concerns of his party as many people would be on holiday at that time and asked the Chairperson to extend the time given for comment as it was a very substantive Bill relating to the Bill of Rights. He appreciated the emotions and sensitivities around the issue but he urged the Chairperson to reconsider.
Adv Swart stated that his party shared the concerns about section 3(A) in which national legislation would set out the conditions under which land would be expropriated with nil compensation. It had always been his party’s view that Parliament should have approached the Constitutional Court to set out the parameters given the majority party’s view that it wanted to make what was implicit explicit. He appreciated that they were, in the current time, in a different process. He had not been at the meeting with the Department of Trade and Industry when it had presented on international treaties, but that was very significant and had a major impact on the economy. He believed that the Committee should sit with the Portfolio Committee on Trade and Industry and other relevant Committee as Members knew the economic crisis that the country was in at the time. The country was facing an economic cliff and any impact on the economy could be disastrous, particularly in the view of the international treaties.
The Chairperson said that it appeared that some people had not been there at previous meetings and were raising questions that had been answered and dealt with. Legal Services would be requested to recap.
Ms R Lesoma (ANC) said that she would take her cue from the Chairperson so that the Legal Services could clean up the issues that the Member from the ACDP was raising.  She added that, on Tuesday, the parties had not been too far from each other. It was a matter of the exit date.
Adv G Breytenbach (DA) asked for the list that would be in the national legislation and that the Chairperson had rather flippantly said was already in legislation. She wanted to know what was in the list. The DA had made a list of what it would like to see in the current Amendment and not in the national legislation. Her party held the view that without the list, it would render the Amendment vague and open up the Amendment to a constitutional attack. The Committee had not been put together to draft a vague Amendment and she would like to see the list in that Amendment. She aligned herself with the comments of Mr Swart with regards to the international obligations.
Ms Lesoma stated that they were not disagreeing. It was a question of what came first for discussion. When she had started to engage with section 25, she had stopped on 2(A). She and her colleagues from the ANC were looking forward to making their inputs and the Legal Services could advise them of the approach to take, noting that the other parties had not had their caucuses. She reiterated that she respected their views.
Adv Breytenbach asked who was chairing the meeting.
The Chairperson stated that Ms Lesoma had an equal right to present her views. He had recognised her, as he had done with Adv Breytenbach.
Adv Charmaine van der Merwe, Senior Legal Advisor, Parliament Constitutional and Legal Services Office, explained that she would respond about the advertisement of the Gazette and the festive season, as she had done on Tuesday.
Adv van der Merwe stated that there was a requirement that the National Assembly (NA) and the National Council of Provinces (NCOP) had to facilitate public engagement with all processes, including the legislative processes. There had been extensive public participation under the Constitutional Review Committee to determine whether the Bill was desirable. That was the first part of the current process. She was not saying that the Committee should not do public consultation. There would be two publications: the formal publication would take place in the Government Gazette in December as required by subsection 74(5) as well as by the National Assembly Rules for Committee Bills. When the programme had been drawn up, the Committee had decided to publish the gazette in December because there was also the constitutional requirement to give provincial legislatures time to consider the Bill. In addition, the advice to the Joint Tagging Mechanism (JTM) was that the National House of Traditional Leaders be invited to provide input. The proposal was to gazette in December so that they could notify the ten bodies. In January 2020, the Bill would be published in the national media and the public would be invited to comment. They would still have three weeks from that time. As with the NHI Bill, the period could be extended if there was seen to be a need. At the time of drawing up the programme, the Constitution and the rules of the NA, as well as the festive season, had been taken into account.
The Chairperson stated that the flexible timeframes should cover the concerns of Members.
Mr E Buthelezi (IFP) said that the input by the Legal Advisor was not helping him in terms of consultation. They could not be referred to the previous Committee’s work when they began talking about going to the people to consult. He had taken notes during the review public hearings. He heard now about custodianship of the land. Only 20% of the people at the public hearings had expressed themselves on the matter of the custodianship of the land and, of those, 95% had rejected the idea as the state was not fit to manage the land. People had been discouraged from expanding on the matter. They had been told only to give a “yes” or a “no” answer to the question of whether to amend the Constitution. People had not been given the opportunity to express their views on the “how” part.  He agreed that there would be advertisements and people would be asked to comment but they all knew that the majority of people would not have access to those newspapers. That was why he was not sure that the Legal Advisor had assisted him.
The Chairperson said that he was not sure that the state was going to be the custodian of the land. He had not heard that, but he would ask the Legal Advisor to comment.
Adv van der Merwe said that the Bill presented on Tuesday did not change the ownership or custodianship of land. She noted that the point had been discussed at length in a previous meeting but she had not been instructed to include a change of ownership of land to the state. The Bill did not give the state ownership of the land.
She confirmed that the process the previous year had been about “yes” or “no”, and she was not saying that the current Committee should not consult. She agreed that there was a different question before them but they should not disregard the earlier consultation as it was on the same matter by the two Houses of Parliament. When an Executive Bill was presented to Parliament, the first question for the relevant Committee was whether the Bill was desirable and Committees sometimes consulted experts to assist them to answer that question. In their case, the desirability of the Bill had been dealt with by a different Committee. However, she was definitely saying that there had to be public input.
The Chairperson said that the state would expropriate for redistribution and not to keep the land itself.
Ms K Mahlatsi (ANC) agreed with Mr Buthelezi that everyone had to have an opportunity to discuss. The Committee ought to run a process that would give everyone the opportunity to discuss and give input on the matter. However, they were currently discussing a different question. Secondly, she was confused about the process that day. Adv Breytenbach had said that she had inputs into the legislation, but her colleague had said the caucus had not met and they could not discuss the Bill. She was not sure if the DA colleagues were drinking from the same cup but she was confused. Thirdly, the Committee had agreed that it would look at proposals. Even though the ANC had been ready with inputs on Tuesday, it had given others the opportunity to prepare their inputs. Could she have permission to present her inputs so that they could allow the process to run smoothly? If the other parties were not ready, they could give inputs during the public participation process.
The Chairperson said that caucuses were internal party processes and Members were in a Committee so those that were ready should make their inputs. As Ms Mahlatsi had said, there would be an opportunity to make inputs at a later stage.
Mr M Dangor (ANC; Gauteng) said that the processes had to be put in place as soon as possible so the NCOP could send the Bill to the legislatures as soon as possible. Provinces had to have public hearings and had to come back to the NCOP. Parties should give their input so that all other parties were aware of their issues and could respond as soon as possible. 
Adv Swart appreciated the process and agreed that there would be a lengthy process and time beyond the festive season, given that in the previous Parliament, there was a lot of concern about the written submissions being ignored. On the issue of custodianship, he assumed that the Chairperson was talking about the general process of custodianship. Expropriation resulted in ownership by the state of expropriated property as a matter of law. That was different from custodianship. Mr Buthelezi had been talking about custodianship of land. That was different from expropriation that resulted in ownership of the land by the state.
The ACDP would not be making inputs that day but would engage as the process continued.
The Chairperson stated that the Amendment was not about ownership or custodianship. It was about redistribution of land. It was about land reform.
Adv Swart asked for advice from the Legal Services as it was a matter of law that when the state expropriated land, it took ownership. Whether the land was given to people or leased was another process. The concern of the ACDP was that the state had not been releasing property but was leasing it, and so on. That was what the previous Committee had heard in its public hearings and that was a matter of concern.
Adv van der Merwe explained the difference between deprivation and expropriation. Deprivation was where the state held something in custodianship, such as minerals, whereas expropriation was always for the benefit of the state. That had not been amended. In a previous Committee meeting, Members had discussed a similar process to what had happened in the Mineral and Petroleum Resources Development Act where custodianship of all minerals in the country was given to the state. The proposal was similarly that all land be placed in the custody of the state but Legal Services had not received an instruction to make such an amendment. The Bill kept the current regime and only addressed whether it was clear enough in the Constitution that expropriation could also be done with nil compensation.
Dr Lotriet clarified that she and colleagues were ad idem in terms of what they had said earlier. The DA was opposed to 2(b) and they were not in agreement that the circumstances referred to in 3A should be in national legislation. If there were circumstances being considered, they should be presented to the Committee for consideration and incorporation in the Constitution.
She asked if there was an indication of when the Bill would be gazetted and what the deadline would be. The Chairperson had mentioned that the circumstances relating to expropriation without compensation was in a Bill. Which Bill was that? She was aware that the Expropriation Bill was not before any Committee at that time.
The Committee Secretary explained that the administrative staff was ready to gazette. He was waiting for the Committee to finalize the Bill but the Constitution Eighteenth Amendment Bill could be in the Government Gazette by the following Tuesday or Wednesday.
Ms Lesoma reiterated that the Committee had adopted the programme with the date by which the Bill had to be tabled in the House. There were also internal process dates. In acknowledging the concerns and the fact that the festive season was coming up, the administration needed to adjust the dates to accommodate a reasonable public hearing. That issue had been raised in previous meetings but the Committee had agreed that it could not be bogged down in terms of the dates. The dates in terms of deliberation of the Bill by the Committee should not be more than three days and the rest of the days should be given to the public hearing. That was her firm proposal which could be implemented without going beyond term of life of the Ad Hoc Committee.
The Chairperson stated that he departed from the premise that the SA constitutional democracy was representative and participative and that politicians did not have the monopoly of wisdom which was why there was provision for public hearings. Whatever the parties said, no matter how big or small the party, it was subject to public opinion and that was why he wanted to have adequate public participation. To that extent, he had taken into account what the courts had said about public participation and so no one should be afraid that their views would not be heard by the Committee or by the public, and the public was more important. He would ensure that all views were tested in the Committee and also by members of the public in line with the democracy of the country.
The Chairperson asked if there were any contributions on the substance.
Ms Mahlatsi read from a document provided by Legal Services that showed the consolidated section 25, should the current amendments be adopted. She made proposals on behalf of the ANC for amendments to section 25 as presented in that document.
Clause 25(1): proposed there was general consensus that the text should remain the same.
Clause 25(2): requested the addition of “(c): subject to without compensation or nil compensation under conditions as laid out in a law of general application.”
Clause 25(3): Insert at the start of the paragraph “Where compensation is payable…” 
Subsections 4, 5, 6: remain as is.
Clause 25(7): That redistribution, including the pending Redistribution Bill, as well as a legal formulation that allows for exceptions to 19 June 1913 cut-off date, be pursued.
The intention was redistribution instead of restitution. She wanted to retain the clause with the date of 1913, with a view that those who could provide evidence “beyond” 1913 not be excluded.
The Chairperson asked if it was a question of formulation – it should not exclude people who might have a right preceding 1913.
Clause 25(8): “No provision of this section, including the payment of compensation, may impede the state…”
Clause 25(9): to remain as is.
The Chairperson thanked Ms Mahlatsi for a very comprehensive proposal.
Ms Lesoma stated that Ms Mahlatsi had presented the ANC proposal but that they would engage further following the public hearings. The ANC submission was similar to the way that EFF made submissions. She would, as a courtesy, provide hard copies of the proposals to the administration for circulation to all Members.
The Chairperson noted that the Members from the ANC were not ambushing anyone. They were transparent, spoke to the record and circulated to empower Legal Services so that no one felt ambushed. He called for any other contributions.
Adv Breytenbach expressed her gratitude to her colleagues for circulating their suggestions. She had proposals but she thought that it might be more expedient to circulate the proposals before she presented them.
The Chairperson stated that she could raise them verbally as they were also talking to the public who had to hear what they were talking about.
Adv Breytenbach proposed that 3A should not refer to national legislation. The circumstances relating to when land might be expropriated without compensation should be included in the legislation. She proposed that the following circumstances be included, but was open to additions to the list:
Land occupied or held by labour tenants
Land held for purely speculative purposes
Land held by state-owned enterprises
Land abandoned by its owner
Land worth less than any state subsidy that it may attract
State-owned land and commonage land
Trust land
Communal land held by a chief
She added that 3A should also include a clause that the Courts would have discretion to select any other land on its merits.
Adv Swart stated that the ACDP aligned itself with the principle of setting out the circumstances in the Constitution and not in national legislation. He asked that the position of the ACDP be recorded.
Ms Lesoma asked if the ACDP had a submission.
Adv Swart said, as previously indicated, that he had to wait for a caucus to confirm the ACDP position. Also, he had heard the proposals for the first time that morning and he had a concern about certain proposals from a legal perspective. He would have to engage with his caucus.
The Chairperson stated that he had heard reference to communal land. Could Members be mindful that the majority of the people who were forcibly removed from the land were traditional communities that were not sitting with the Committee? In terms of the process as defined, they would have an opportunity to make an input into the process. Would it not be putting the cart before the horse to put that in the Constitution before the other parties had heard the proposal? That would invalidate the proposal that the list should go to the House.
Adv van der Merwe said that the Constitution was a framework legislation and she recommended that the list be in national legislation. However, that did not mean that it was impossible to put a list into the Constitution.
She cautioned that anything not in the Bill when it was advertised, might mean that the Bill would have to be re-advertised if it were something new. It was easier to put something in and then take it out than it would be to add something later as there would have to be further consultation. If the view was that there should be a list, it should be done then. It could go in either the Constitution or in a national law but that was a policy decision and not a legal decision. A lot of clauses in the Constitution relied on national legislation but the Constitution also included additional points where it was a serious matter. However, Members should not wait for the public to tell them to put something in the Bill because of the timelines.
Adv van der Merwe cautioned that the mandate of the Committee might not cover certain things. When the Committee adopted the Bill, there had to be an interim report to the House and it was possible at that point to raise issues they were uncertain about the current mandate. Members had to keep in mind what they were allowed to do.
The Chairperson said that the Committee was very clear about the mandate and was acting within the mandate and would only include things that were in the mandate. If the mandate was exceeded, that would be dealt with when the matter arose but, at the moment, the Committee was not exceeding its mandate.
Ms Lesoma noted that she was repeating herself but she felt that too many details should not be included in case something was left out. She was of the view that the legal advice made legal sense to her. She did not want to say, “in any event” as she did not want to downplay the issue. The law of general application would deal with that issue. Adv Swart was very progressive because he had said that he would engage with the input. She asked what was going to be publicised by Legal Services. She had made her submission and now she wanted to know exactly what was to be published. Her colleagues were still going to react but it could not prolong the process as they sought, very subtly, to delay the process. Was she correct to say that her inputs would be included in the Bill to be gazetted?
Adv Breytenbach was offended that it was the third time that the Chairperson had overlooked her. She was grateful for the patience of the Legal Advisor who was explaining things more than once. She reminded Members that they were talking about not just the Constitution but about the Bill of Rights and about property. All South Africans took the issue very seriously. Her colleague suggested that the list was too prescriptive but there were other lists in the Constitution and the list that she had proposed allowed the Courts to consider other circumstances on their merits. She moved that the list be contained in 3A. She welcomed the idea of extensive public participation and would like to see all proposals contained in the gazette, not only her colleagues’ proposals.
Dr C Mulder (FF+) apologised for arriving late. He referred the ANC colleagues to a statement made by the President himself. On 1 August 2018 when the President had held a late night press conference, he had announced expropriation without compensation (EWC), he had said that, after the ANC National Executive Committee lekgotla, the ruling party would undertake a parliamentary process to finalise a proposed amendment to the Constitution that outlined more clearly the conditions under which land expropriation without compensation could be effected.
Dr Mulder repeated, “An amendment to the Constitution that would outline the conditions.” In terms of the ANC proposal, there were no conditions. The proposal by the ANC Members was that there would be nil compensation and then they wanted the other parties to agree that some general law would determine the conditions. That was not what the President had in mind. The Chairperson was expecting Members to give a blank cheque as they had no idea what those conditions might be. Surely, the Chairperson could not expect all parties to accept that? If he really was trying to do nation-building, the conditions under which there would be no compensation had to be clearly spelt out. Under no circumstances could FF+ support an Amendment without the conditions.
The Chairperson asked whether the statement by the President excluded the possibility that the conditions would be in a general law of application.
Dr Muller asked what had informed the proposal on the table? Was that proposal the idea of the Legal Advisors or were they instructed by someone to come up with a formulation that just said that there could be nil compensation and that no one should ask any questions about that as, sometime in the future, a law would be passed and the specific circumstances would be put into that law. Where had the proposal come from? Was it on instruction of Legal Services, or the ruling party? Those were fundamental things with immense implications and the President had said that he wanted the Constitution to be explicit in terms of spelling out the circumstances for expropriation without compensation. He had not heard the President say just pass a law with the circumstances at a later stage. It was absolutely contrary to that point of view.
The Chairperson assured everyone that he did not even know where the CLSO offices were and he had not done anything to influence Legal Services and he did not know of anyone in the ruling party who would have exerted undue influence because that would be out of order and unacceptable. He believed that they were dealing with lawyers of integrity. If Members bore in mind that the process was ongoing and that other people had to make inputs and had the right to express themselves on those conditions and the location of those conditions, it would be putting the cart before the horse to try to be conclusive before they heard everybody. At the end of the process, the Committee had to have heard all voices. The Committee had to be open to persuasion. What they produced for gazetting was not the final product as they had to hear all the voices.
Ms Lesoma said that the comment was unfortunate and unfair to Legal Services but the Chairperson had covered her.
Dr Mulder explained that he had not said that the Chairperson had given instructions. That was not what he had said. He had said that it would be good to know what had informed the specific proposal. If the Legal Services had brainstormed the idea, then people should know. Being such a sensitive matter, he was a little concerned that the ruling party would stand back and say that it had had no input in the Bill. It might be so, but the Committee should know that. He had asked for clarity. Who were the other people who still had to be heard? And what was the process that the Bill still had to go through?
The Chairperson said that there had been a reference to communal land and the voices of the Traditional Leaders had to be heard.  Their voice was absent that day. The question of the location of the conditions could not be finalised until the Committee had heard all the voices. There was AgriSA that had said it wanted to consult. He was persuaded by Legal Services when the Advisors had said that they should deal with the Constitution as framework legislation because details might be affected by other voices absent from the room.
Dr Mulder asked the Chairperson if he agreed that compensation might be nil only under specific circumstances in the law.
The Chairperson asked everyone to be tolerant as they had the whole day because it was not their matter but a matter of the public.
Dr Mulder continued. The Chairperson had thought that it would be a good idea to come up with a framework that said land could be expropriated without compensation technically but the ANC did not want to provide details as there were some treaties to accommodate, so they only said in the Constitution that compensation may be nil. The ruling party was now suggesting that some other law at some stage would provide the circumstances but he expected parties to support it and the public to give commentary and support the Bill but no one was telling them what the specific circumstances were. The specific circumstances should be included. They were talking about the Bill of Rights but the law that the Chairperson was referring to needed only a 50 % majority. Did he really expect people to support the Bill under those conditions? Look at section 29 that dealt with education. It spells out all the circumstances. However, when it came to property, the Chairperson was saying, “Just a broad framework – trust us.” He did not trust him.
The Chairperson explained that he had wanted Dr Mulder to explain himself before he allowed Members to respond.
Ms Lesoma said that Dr Mulder had come late and could not say things like that and that had already been covered, so he had to apologise.
The Chairperson said that he had given Dr Mulder an opportunity to ensure that he understood him. Now no one could have misunderstood him.
Ms Mahlatsi said that issues had been dealt with and closed, it was unfair when Members arrived late. The points had been raised and concluded. The meeting had agreed that there would be submissions. Those who did not have submissions could work through the public process. The next step was to agree on the date for gazetting. It was important to note that Dr Mulder had been there throughout the process. Legal Services got the idea out of the discussions in the Committee. The document was precisely in line with the discussions. To cast an aspersion that Legal Services made it up was to question the integrity of the institution. The questions had not been there the previous week. They could not be taken back to the Tuesday meeting. They were unable to bring inputs because their caucuses had not met but if they did not, the Committee had to move on. They could participate in the public process.
The Chairperson stated that the Committee had wanted parties to make inputs that day. The ruling party had made its recommendation. Dr Mulder had been free to make inputs. Ms Mahlatsi had reminded the Committee where it was and Members had to move on.
Ms Lesoma asked what was to be gazetted. She suggested that Legal Services should gazette the Bill with the submissions of the day because they could not delay sending out the gazette to the public. Her compromise position was that all proposals be included in the Bill.
The Chairperson declared that the Committee was not going to gazette everything. The view that carried the majority support would determine the final text to be gazetted.
Adv van der Merwe stated that she knew what to do if she had to include the list but when she drafted the text it had to be in line with the Constitution. She asked for permission to adjust the wording as the ANC proposals would look slightly different. Regarding 25(c), in terms of drafting conventions, the text started off with talking about a law of general application and then they wanted it added to the text. It would be a repeat. Did the proposal intend to make it clear that one principle in terms of which land could be expropriated without compensation was a law of general application and there would be conditions in that? Would Members agree that the proposal for section 25(c) was already covered? The word “conditions” could be added if Members wished to strengthen the point.
Regarding section 25(7), Adv van der Merwe said that some clauses in the Constitution made things progressively possible. Was the intention to say in the Constitution that there could be exceptions if someone had evidence or was the intention that legislation should look into the possibility of bringing in that requirement?
The Chairperson stated that it was not a drafting meeting but Ms Mahlatsi could explain.
Ms Mahlatsi stated that she was comfortable with the first proposal but looking at section 25(c), she asked if it would not give a totally different context if the reference was removed? She did not want section 25(c) to lose its meaning. If the context remained the same, she was comfortable.
She asked the Legal Advisor to repeat subsection 7.
Adv van der Merwe stated that the wording proposed had been discussed in the previous Committee and it had been agreed that subsection (7) did not limit people from coming to the fore. Was the intention to make that explicit?
Ms Mahlatsi agreed that the intention was to make it explicit.
The Chairperson agreed that was in line with the mandate, i.e. to make things that were implicit, explicit. He could send Members a list of communities that were living in exile, having been uprooted. It had to be explicit to give the state the power to deal with them. He thanked Ms Mahlatsi. He was particularly interested in protecting Dr Mulder because full participation was essential and Dr Mulder had said that he had no mandate to speak.
Dr Mulder asked the Chairperson to note that it was Dr Mulder speaking and not FF+ as he had no mandate because parties had not had time to meet. He explained that he had been late because he had been at a different meeting. He understood that the ruling party was in a rush to get the Bill passed but the proposal from the ANC had not been sent earlier. Were the Members expected to discuss those proposals and take them into account in the same meeting? Was it going to be gazetted as the position of the Committee? He was trying to understand the process.
Ms Mahlatsi said that the Committee had agreed on Tuesday that parties should bring proposals to this meeting and that the Committee was going to discuss. Members could engage and if they did not want to engage, they did not have to. Members did not have to agree on submissions, but the intention had been to bring proposals.
The Chairperson said that individual parties had to make submissions in the meeting and at the end of the meeting, the majority view would inform the drafters as to what was going to go in the gazette. He did not want any political party to ambush others.
Dr Mulder understood the Chairperson’s position as they had served on three Nkandla Committees together. He was not blaming the Chairperson or the secretariat, but the Ad Hoc Committee was operating in a strange fashion. He heard from the colleagues that he was supposed to bring proposals. He was never asked to bring a submission at the meeting on Tuesday. They could check in the minutes but there were no minutes. His understanding was that the Committee would engage on the proposal made by Legal Services. If he had been asked to bring his own proposals, he may have brought something.
He added that it was completely wrong to take property rights and to refer to a law of general application. He subsequently understood that the date would be changed in subsection 7 and make it possible to claim, in terms of the expropriation, prior to 1913. That put the Boer Republics back on the table. Was the change of date also part of the Committee’s mandate? He was serious that one could not deal with the Constitution, the Bill of Rights and property rights in the manner in which the Committee was doing.  He understood the Chairperson’s position because he was being forced to do it immediately.
Dr Mulder was convinced that it was possible to reach a consensus, but what was the rush? He was arguing that Members should not try to finalise the Bill that day. Before the Members went out that day, the Committee had to have something on the table and the Chairperson had made it clear that the majority would take a decision. He knew what that meant. If the Chairperson wanted to do it that way, that was fine but he could assure him that the Committee would not reach consensus and Members would not support what was happening.
The Chairperson said that either consensus or the majority view would prevail. Why the rush? He did not want the public to write Parliament off and take the matter into its own hands. President Mandela had said that the matter would be dealt with in a peaceful manner. They were trying to deal with the matters before the public lost confidence in the matter. The matter was not being concluded that day. Subsection 7 had also been raised during the Constitutional Review Committee phase. The Committee could not ignore it as if it had not been raised. It would be challenged. The Committee did not have the monopoly of wisdom. The final product would include the opinions of all South Africans, including those who were from the Boer Republics.
Dr Lotriet said that the meeting had not been requested to hand in proposals. Parties had been asked to come back with comments on the draft Bill. She had clearly told him that parties would not have time to meet before Parliament closed for the constituency period. She could not consent to anything that had not gone through her party’s caucus. Time was trumping the rights of property owners in the country. She could not believe that on 1 April 2020 there would be total chaos in the country if the Amendment to the Constitution was not before the House by that time. There was no reason not to postpone the arbitrary date of 31 March 2020 for presentation of the Bill to the House, in order to have proper consultation. The postponement would not be long.
With regards to the proposal by the ANC to amend section 25(7), Dr Lotriet stated that it was clearly out of the Committee’s mandate. If the Committee started including everything that had been raised in hearings, there would be many issues. The Committee had a very specific mandate: make explicit that which was implicit and her understanding was that it related to expropriation without compensation, and specifically nil compensation. She expressed the DA’s view that the party was not in favour of being rushed as it was.
The Chairperson declared that she was giving a narrow interpretation of the word “engage”. The word “engage” meant that they could make proposals. The Committee should also be mindful of what Ms Mahlatsi had said about not opening Tuesday’s meeting as those matters had been concluded. The current meeting was not the end of the process. The inputs made had empowered Legal Services to finalise the Bill for gazetting, although that did not conclude the matter. It would lay the foundation.
Ms Lesoma explained to Dr Mulder that the ANC had engaged with the Legal Services and had put it in a paper. She had shared her proposals. She reminded Members that when Parliament had held the public hearings, the EFF had surprised everyone by making some proposals but it had been the EFF’s right to do so. The DA had made their inputs and had said it would be put in writing. The ANC was cool with that. Even the ACDP had promised to give input. She had even asked the administration to add days to the consultation period because of the festive season. No final decision could be taken until everyone had had input. It was not that the ANC would not take everyone’s view into account. The Committee could build or break the country.
The Chairperson stated that they were not closing the door. The DA had a proposal and the ACDP had agreed that it would submit something. The Committee had debated all proposals before them.
Adv Breytenbach did not understand the process. Was the Chairperson suggesting that Legal Services took and incorporated the proposals and that Legal Services would gazette a draft that the Committee would not have seen?
The Chairperson said that there had not been much substance other than the ANC additions and that would help the Legal Services to clean up the Bill. He would give Legal Services a mandate to publish the Bill. Unless there was a text that had been published, there could not be a meaningful consultation. The Members had exhausted themselves.
Mr Buthelezi said that there had been a proposal that land under traditional leadership be on the list for expropriation. He submitted that that land under black people should not be touched because the process had to address the imbalances of the past. It did not make sense to take land away from blacks. How could they take away land under traditional leadership? That should be excluded.
The Chairperson said that it was not the view of the Committee to expropriate land from tribal chiefs.
Adv Breytenbach registered her objection to the Bill being gazetted without the Committee ever having seen it. The Chairperson could not gazette it on her behalf. Was Mr Buthelezi, who she held in high regard, saying that land under black people must be left alone and only land under white people would be expropriated?
Mr Buthelezi denied that was what he had meant. Those who understood how land was administered under traditional leaders would know that where there were hundreds of farms that could be addressed but land under the traditional leaders that was held in custody for the people should not be touched. Where an individual person owned the land, that could be expropriated.
The Chairperson said that there were some matters that could not be dealt with by the Committee as the people whom it affected, the traditional leaders, had to be consulted first.
Dr Mulder said that everyone understood the complexity. He came to the point made by Adv Breytenbach. He had served on two previous committees and he had warned they could not make one legal mistake. A gazette by Legal Services would be a first in SA. It was unheard of. Legal Services could only gazette on behalf of the Committee but they could not gazette on behalf of the Committee without the Committee ever having seen the final Bill or decided on it.  His advice was …
The Chairperson interjected. He said that Legal Services had heard the Members and they would include the amendments immediately and present them to the Committee.
Dr Mulder asked if the Chairperson was going to wait for the DA and ACDP proposals or was he going to propose gazetting without those inputs that he had said he was waiting for?
The Chairperson stated that political parties could propose amendments later. It was not the end of the process. The Committee had to agree on the text to be gazetted.
Dr Mulder suggested that the Committee should gazette only what was on the table on Tuesday. It was a broad document that would get the debate going, but where the Chairperson was going would lead to chaos.
Adv van der Merwe said that she had incorporated the ANC input and she could put it on the screen. She needed the DA proposal and then she would incorporate that as well. It was really rough but she also wanted to show Members a slight change she would suggest to clause 3.
Mr Dangor stated that the National Council of Provinces had a 2pm meeting so, unlike other people, he could not sit here all day. He asked that the meetings be harmonized so that NCOP Members could attend the meetings. He congratulated the Chairperson on trying to reach consensus and he hoped he could draw the different documents together.
The Chairperson responded that the NCOP was not involved in the process at that stage but he appreciated the input from Mr Dangor.
The Committee took a short break for Adv van der Merwe to make the amendments.
The Chairperson called the meeting to order and announced that Dr Mulder had a proposal to make.
Dr Mulder appreciated the approach of the Chairperson and his realisation of the complexity of the issue. He, Dr Mulder, had been against the draft Bill proposed at Tuesday’s meeting but if anything had to be gazetted, the Committee could not gazette anything other than the document submitted by Legal Services on Tuesday of that week.
The Chairperson said that he wanted to put on record that on Tuesday there had been no disagreement on the proposed Bill. There had been only a rider that parties might come with proposals. Dr Mulder’s position was in line with his position that parties could make those proposals during the consultation process. It allowed the Committee to move forward.
Ms Lesoma said that the ANC could live with that one. What was to be gazetted was acceptable.
Adv Breytenbach supported the proposal of Dr Mulder.
The Chairperson said that he had been vindicated in listening to all political parties, however small. Dr Mulder was alone, and the only Member of his party in the Committee, but he had provided leadership. The Committee had to respect that all parties had something to contribute. The Committee could gazette the draft Bill in time.
First Report of the Ad Hoc Committee to Initiate and Introduce Legislation to Amend Section 25 of the Constitution on the Draft Constitution Eighteenth Amendment Bill
The Chairperson stated that there was a report that had to go to the House. He asked Members to peruse the report.
Dr Lotriet stated that point no 5 under the Conclusion should be amended: The Committee had reached consensus on the Bill to be published but had not adopted it.
The Chairperson asked what the difference was between consensus and adoption. He did not want Dr Lotriet’s interpretation as she had made the proposal.
Adv van der Merwe explained that it was not a legal question, but a procedural one. She was not sure but suggested that to say ‘the Committee had agreed to gazette the Bill’ would be correct.
The Chairperson thanked her and suggested that the report stated that the Committee had agreed to gazette the Bill.
Dr Mulder suggested that there should be a sentence in the conclusion stating that the intent of gazetting the Bill was to get input from the public.
Ms Lesoma asked for a revised date for publication, taking into account the festive period and for a revised Committee Programme.
Adv van der Merwe clarified that the Committee Programme said that the final date for submissions was 27 January 2020 but support staff would only start work on inputs on 2 February. She requested a change of the final date for submissions to 31 January 2020 as that would fit in with the programme.
There was consensus in the Committee.
Concluding remarks
The Chairperson said that he had already signed the papers to allow the secretariat to publish the Bill. He thanked Members for being patriotic South Africans who wanted to make progress and were striving to find a solution that future generations would be happy to live with. He gave Members Freedom of the City of Cape Town because they had done very well.
The meeting was adjourned.


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