Expropriation Bill: background and processing

Public Works and Infrastructure

27 October 2020
Chairperson: Ms N Ntobongwana (ANC)
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Meeting Summary

The support staff of the Committee presented an outline of the background and history of the Expropriation Bill, explaining the causes for the rejection of the 2015 version of the Bill. In a virtual meeting, they proceeded to explain the procedure as required by the rules of the National Assembly and the Constitution relating to the procedure of passing the Bill and, in particular, the procedure to obtain public comment.

The Committee Members’ main concerns were focused on the correct procedure to be followed, the timelines to which it needed to adhere, and the requirements for facilitating public participation. Since many of them were first time Members of Parliament, they wanted to ensure that they did not miss anything crucial. They referred to the parallel process on the amendment of section 25 of the Constitution, and asked whether this would not interfere with its work on the Bill. They also asked for access to the previous public comments which had been available to the former Portfolio Committee on Public Works.

The  legal advisor said that the new Bill aimed to make explicit what was currently implicit in the current Constitution -- specifically the expropriation of private land or property with or without compensation. The Committee should bear this change in mind as it considered the Bill.  She emphasised, however, that the current Constitution as it stands remained the law while the Bill was being processed, and that the support staff and stakeholders stood in support of ensuring that the processing of the Bill was done without fraud and in line with the Constitution.

Meeting report

Introductory remarks

The Chairperson gave an overview of the importance of the Expropriation Bill, saying that the majority of the country still owned less than 20% of the land in the country. The Bill would be a milestone to ensure that people were really free as people cannot call themselves free without access to land, which was a means of production.

Processing of Expropriation Bill

Historical context

Ms Nola Matinise, Committee Secretary, said the purpose of the meeting was to provide background information on the Bill, as well as inform the Committee of the processes to be followed while it processed the Expropriation Bill.

In 2015, the Minister of Public Works had tabled the Expropriation Bill [B4-2015] in Parliament, and having gone through all the stages, the Bill had been sent to the President for assent.

In 2016/17, the former President had returned the Bill to Parliament on procedural grounds. There were four issues which the President required that Parliament address.

  • Firstly, whether it was indeed correct that the negotiating and final mandate procedures in some provincial legislatures had been followed;
  • Secondly, whether it was indeed correct that the National Council of Provinces (NCOP) had failed to facilitate sufficient consultation;
  • Thirdly, the reasons why the Bill was not referred to the National House of Traditional Leaders (NHTL);  and 
  • Lastly, the merits of the submissions in so far as they related to the issues mentioned above.

The President’s concerns fell under the purview of Joint Rule 205, which deals with procedural defects. In summary, the Bill was remitted because there was inadequate public participation, particularly on the part of the NCOP. However, when the President remitted the Bill, he did so to Parliament, which was comprised of both Houses. Therefore, both Houses needed to make a decision as to what to do with the Bill jointly as the National Assembly (NA) and the NCOP.

In 2018, the Portfolio Committee on Public Works had commenced work on the remitted Bill. At that time, Ms Phumelela Ngema was the allocated legal advisor of the Committee.

On 27 February 2018, the National Assembly had passed a resolution to establish the joint parliamentary Constitutional Review Committee (CRC).

The Portfolio Committee on Public Works had initially intended to conduct public hearings, but this was changed by the resolution taken to establish the CRC. The Committee was then of the view that conducting parallel public hearings on that version of the Expropriation Bill -- which did not envision expropriation without compensation -- would have created confusion, duplication and would have amounted to fruitless and wasteful expenditure. It felt strongly that it should wait for the recommendations by the CRC before it proceeded with processing the Bill.

In the same year, the remitted Expropriation Bill was referred to the National House of Traditional Leaders (NHTL) in terms of section 18 of the Traditional Leadership and Governance Framework Act, after which the Committee received those submissions.

On 28 August 2018, the Committee took a resolution to reject the Bill for re-introduction at a later stage. Notably, there was no rule which spoke to the withdrawal of a remitted Bill. This was a special case, however, because of the resolution which the NA had taken, which meant that the whole Bill became null and void and had to be re-introduced in line with the resolution of the House, requiring that it speak to the expropriation of land and property without compensation. Therefore, in terms of Joint Rule 208(2) read with Joint Rule 203(3)(c), and in line with Joint Rules 205, 206 and 207, the Committee recommended the rejection of the Bill to the NA. The terminology used was ‘rejection,’ and not ‘withdrawal,’ because the rules only refer to the former term.

Constitutional reference

Schedule 4 of the Constitution lists areas of both national and provincial legislative competence. This Bill falls within the ambit of Schedule 4, because the NA processes the Bill before forwarding it to the NCOP.

Formal Stages of Legislation

Ms Matinise went through a diagrammatic outline on processing Bills into law.

The main procedures were broken down under the headings:

  • Before tabling;
  • After tabling;
  • After referral to Committee.

Bills were introduced in a number of ways -- by a Minister, a Deputy Minister, a private Member of Parliament or by a Committee. After a Bill was drawn up by a Minister and submitted to Cabinet for approval, the Office of the State Law Adviser (OSLA) certifies the Bill as being consistent with the Constitution and properly drafted. Thereafter it is published in the Government Gazette and referred to the relevant Committee through the Announcements, Tablings and Committees (ATC). After tabling in Parliament, the Bill is introduced and referred to the Committee through ATC, and is referred to the Joint Tagging Mechanism, (JTM).

Tagging refers to the process the Bill must follow to become the law, and involves the classification of the Bill as an s74 Bill dealing with constitutional amendments, an ordinary Bill not affecting the provinces per s75, a Bill affecting the provinces under s76, or a money Bill under s77. It was recommended that this Bill be an s76 Bill.

Rule 286(6)

Ms Matinise outlined the process which the Committee would follow.

Firstly, an informal discussion on the principles and subject of the Bill needed to be conducted, which includes a briefing by the Department of Public Works and Infrastructure (DPWI). This was scheduled for November, so that the Committee could consider the inputs the DPWI received when it advertised for public comment. After this, a motion of desirability would be adopted by the Committee, as it could decide whether or not the Bill was desirable and whether the principles of the Bill and the need for the Bill were really accepted. After this, the Committee would invite further public comment, followed by the hearing and examination of that input.

Here, there were two options -- either to conduct public hearings, or to invite stakeholders to come and present to Parliament. She recalled that the previous Committee in 2015 had gone for the second option. After the remittance of the Bill, the following Committee had chosen public hearings, which she felt was a desirable option since this was a matter of public interest. After this, deliberation by Members would take place, considering all of the input it had received. The Committee would then formally consider the Bill clause-by-clause, including the amendments as formally proposed. The OSLA would join this meeting in order to advise what needed to be done in term of the amendments to the Bill.

The Committee report would then be considered and adopted, which would comprise the final version of the Bill as it would be presented to the NA. According to Rules 286 and 288, which address whether the Committee report should include a minority report, only a minority view should be included in the broader report, and not a separate minority report.

The Bill then passes through NA and NCOP, followed by going to the President for constitutional assent and then being signed into an Act of Parliament and becoming a law of the land.

Constitutional amendment affect

Ms Ngema introduced herself as the legal counsel designated to the Committee.

She began by explaining that the Committee may be wondering how the constitutional amendment of section 25 of the Constitution would affect this Bill. She said that this process could continue, as the research suggested that the current reading implicitly allowed for expropriation with compensation, and the amendment merely hoped to make explicit what the current version of the section did not. She therefore felt that the work of the Committee could continue without fearing being hamstrung by the processes ongoing regarding the s25 amendment.

Tagging

She said that the Bill already acknowledged other legislation which enabled and empowered other expropriating authorities in terms of other existing legislation, so the state law advisers had argued that it was not simple to say that the current Expropriation Bill fells within a specific functional area in Schedule 4, as there was a lot of overlap. To some degree, it arguably touched on all of them. The JTM was still considering how to tag the Bill. Once the JTM made a decision, decisions were made final and binding on the Committees of Parliament and the processes which needed to be followed in terms of s75 and s76. Based on indications by the state law advisors and the DPWI’s introduction of the Bill, it was likely to be tagged as an s76 Bill which affected the provinces.

The tagging opinion which had been referred to the JTM suggested that in compliance with s18 of the Traditional Leadership Act, the Bill would need to be sent to the NHTL for approval.

Clause 12(3) of the Bill

This clause sought to enable the expropriation of land in the public interest, with the possibility of expropriation without compensation. There were also grounds which allowed the determining authority, as well as when the matter was taken to court, to rule that fair and equitable compensation should not be considered. When the authority determined compensation, the terms of the Bill would determine the exclusions around compensation. The Bill intended to align expropriation processes with what the Constitution currently envisioned.

She concluded by saying that she felt that she had given the Committee the information it needed regarding the motion of desirability.

The Chairperson flagged the presence of Ms Nzimande from the British Consulate, and asked how she had access to the Zoom meeting.

Ms Matinise said that the meeting was open and as the Secretariat did not know whether the meeting would be broadcast live, it had therefore allowed the public into the meeting.

The Chairperson asked that the Committee be informed in the future when there were unfamiliar people attending their meeting. She then noted the speakers.

Discussion

Ms A Siwisa (EFF) asked whether the Expropriation Bill should not be dealt with later, after the amendment of the Constitution which was in process. The EFF particularly wanted s25(3) and sub-section (7) of the Constitution to be amended to allow for expropriation without compensation. She asked whether the Expropriation Bill would not counteract what the Constitutional amendment was attempting to achieve. She wanted to ask the Minister and Deputy Minister to explain why there was a rush to do this. It had come to light that after compensation was introduced, the same people who had been compensated were now leasing the same land. The Constitution intended to put the land into the state’s hands so that all land could be distributed to the benefit of the public. Since s25 was going to be amended, she asked whether this Bill would not interfere with that process.

Ms S Graham- Maré (DA) said the Committee was not there to discuss the merits of the Bill today, but to consider the process it had undertaken to enact the Bill. She asked whether the position they were in as a Committee was in the ‘referral to Committee’ stage, in the ‘after tabling’ stage, according to slide 6 of the presentation. Ms Ngema had mentioned the need for the Committee to consider a motion of desirability, and she was concerned that the JTM had still not come to a decision on tagging or the referral to the NHTL.

She felt there were either two processes running concurrently, or they had skipped a couple of steps. Although the Bill had been before a Public Works Committee before, it had not been in front of this Committee, and these Committee Members had not been in a position to scrutinise the Bill properly. She asked whether the Committee would have access to the input made by the public once it had been published for public comment, and whether it would be able to review the comments and look at the Bill in relation to the comments and potentially make amendments in relation to the public comments received. She insisted that it would not help to have a public participation process, if the Committee did not take those comments into consideration.

Finally, as it was her first term as a Member of Parliament (MP), based on what she was seeing, these deliberations would take place much later, and she asked for clarity on the role the Committee had to play prior to the adoption of the Bill.

Mr P van Staden (FF Plus) asked whether it was waiting for public comments to be returned to the Committee before it began to scrutinise the Bill. He asked that they make sure how many days were allowed for public scrutiny of the Bill, and asked when the date for public comment would be closed. Would previous inputs from the public and stakeholders to the previous term Committee be presented to this term’s Committee? As already noted, many of the Members were new MPs, and they accordingly needed insight into those comments. Lastly, he asked when this current Committee would start with hearings, and whether stakeholders would also provide input.

Ms L Mjobo (ANC) said she was covered by the last speaker regarding the Bill’s timeframes.

Mr E Mathebula (ANC) said he was sure that as parliamentarians, the Members would all agree that this Bill was desirable. One continued to see land as being owned by the few, where many hectares were not being used. It was in the interest of the Committee to ensure that this Bill was desirable. It was important for the people to have access to land as a means of production. He asked whether there should not be an interfaced approach when it came to gaining public comments. Would it be possible to hold public hearings, as well as allow stakeholders to come and present to Parliament? Since the Bill was very important, the Committee should ensure that the public was given enough time and space to interact with the Bill so that they could take ownership of it.

Ms L Shabalala (ANC) said she felt this was still the teething stage, as there was a long way to go in the process. She was not in a position to discuss the merits and demerits of the Bill.

Ms S van Schalkwyk (ANC) said she was covered by the previous speakers, and merely wanted more information on the timelines.

 

Mr TV Mashele (ANC) said he was covered by previous speakers.

The Chairperson commented that this was the starting line in the Bill’s process. However, the Committee needed to give its team the mandate to proceed with the process until such time that the Members could discuss the merits at the wedding, so to speak. She asked the Ms Matinise and Ms Ngema to continue.

Support personnel’s’ responses

Process and public comment

Ms Matinise, in response to whether the Committee was conducing concurrent processes with the JTM, clarified that the Bill was now at the referral stage to the Portfolio Committee on Public Works and Infrastructure, as well to the Select Committee of the NCOP. What had just been outlined for the Committee became this Committee’s process. The Committee would advertise for a period not less than 30 days. She asked that her colleagues correct her if need be, as she was not sure as to the required duration. She also suggested that the opportunity for public comment should be advertised on social media, as well as at the national level. She would receive the submissions herself, and they would then be collated and shared with the Committee for its scrutiny. Thereafter, public hearings would be held. When it reached the stage of inviting stakeholders for public comment, this would be done.

After this meeting, the Committee’s team would draw up a plan with timelines depicting what would be done when, and how far it was into the process while it awaited the decision of the JTM.  Since the state law adviser had advised that the Bill be an s76 Bill, it would need to be referred to the NCOP and the NHTL, so the NHTL would need to be one of the stakeholders invited to comment

Motion of Desirability

A motion of desirability was a document which needed to be drafted by the Committee and had to be submitted as part of the process according to Rule 286(6) of the NA, and submitted as the Committee’s input in the process of processing the legislation. If there were opposing views, they were also stated.

Timelines

The support personnel would not be actioning anything without the Committee’s go-ahead. The next meeting was tentatively scheduled for 24 November, for the briefing by the Department. After the briefing was received, the Committee would go into the finer details of the Bill as it scrutinised it clause by clause.

After considering the Bill clause-by clause, other processes would follow.

Ms Ngema said that in addition to what Ms Matinise had said on the process, if the JTM required that the Bill be taken to the NHTL, the Act required that the Bill must be with them for a period of 30 days. This was another time frame which needed to be considered.

Secondly, in relation to facilitating public hearings, this would be outlined by the support personnel in consultation with the Committee. Section 76(3) enables and permits the introduction of the Bill, either before the NA or the NCOP, but in this case, even though the Bill had been referred to both Houses, the NA was kick-starting the process. In order for purposes not to overlap, the NCOP would not begin its processes until the NA, through its Portfolio Committee was done and the report was adopted and presented as a plenary to the NA.

The motion of desirability was in terms of National Rule 286(4) and 286(6), as stated by Ms Matinise. To be specific, Rule 286(4) stated that the Committee, after due deliberation, must consider a motion of desirability on the subject matter of the Bill and if rejected, must immediately table the Bill and its report on the Bill.

These were the processes which were going to take place as soon as the Committee had decided on its process and timelines. Public participation was required, and would run properly. Previous submissions were already public documents and the support staff could assist with accessing them, and this could be worked into the process. However, the Committee would be dealing with new submissions, as this was a new process which had nothing to do with the previous process of the rejected Bill. However, in order to gain insight and to make distinctions, such information could be forwarded to the Committee Members.

Impact of the Section 25 constitutional amendment on the Bill

As it stands, the property clause in section 25(5) of the Constitution, read with s25(8), already states that land restitution and equitable redress must be done. That was why there were already existing Bills that dealt with redress and tenure issues going through the processes of Parliament. That was why the Expropriation Bill was before the Committee, because the main issue was to ensure that subsections 5, 6, 7 and 8 of section 25, as they already stand, were adhered to. Section 25(5) to 25(9) already made provision for interference with the private property right.

She suggested that the Committee bear in mind what the new constitutional amendment would indicate, as it would be more explicit about whether there would be compensation. If she was not mistaken, the new bill focused more on sub-sections 2 and 3, and whether expropriation was a deprivation. In light of having considered the factors outlined in section 3 as to what was justifiable compensation, the Committee then had to look at the current Constitution, as it had no way of knowing whether the Bill would be passed, or whether it would lose its way like the last one did.

In processing the legislation, therefore, the Committee should look at the law as it is. Once there was legal certainty across the different areas working on overlapping legislation, and once positions were taken, these would be brought to the attention of the Committee by the support staff so that there were no gaps left open.

In the drafting, the processing of the Bill would comply with the Constitution so that there was no fraud. The Committee and the other structures of Parliament, including the JTM, were here to this end. The Constitution was the supreme law of the land and would be complied with. She was sure that stakeholders who were watching would also ensure that nothing went legally wrong in the process.

Further discussion

Ms M Hicklin (DA) thanked the presenters for clarifying the process. She felt it important to be kept abreast with the process of what was happening very closely. She did not think it was worth going into the merits, but said she looks forward to a healthy engagement.

Mr Van Staden concurred, saying that the Committee must be kept in the loop. He wanted to avoid a situation such as the one which had transpired around the National Health Insurance Bill. He asked whether previous submissions made to the previous term’s Committee would be presented to this Committee.

The Chairperson asked for more speakers and as there were none, she asked for a response to that question

Ms Matinise said that the Department would brief the Committee on all of the comments which it had received.

Adoption of Commuttee minutes

The Chairperson thanked the Members and presenters, and asked Ms Matinise to continue with the presentation on the adoption the minutes of the meetings held on 14, 12 and 21 October 2020.

Ms Matinise went through the minutes of the previous meetings and the attendance register.

The Chairperson asked if the Committee was happy to adopt the minutes.

The minutes were duly adopted.

The Chairperson concluded by saying that having considered the processes and being informed that this was an s76 Bill, the Committee would now ask its team to complete a draft plan which would set out the timelines for the Committee to process the Expropriation Bill B23-2020. 

The Committee requested that the team come up with a draft plan for the processing of the Bill, and thanked them for the information given, and it said that it must not make the same mistakes as the previous Committee which had led to its rejection. It should leave no stone unturned or skip any steps. If this Bill was signed into effect, it would be a milestone in South Africa, as it would address the imbalances of the past. Ownership of land was a means of economy, was a serious issue for the majority of the country, who did not own land.

The meeting was adjourned.

 

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