Video: Ad Hoc Committee on Amending s25 of the Constitution of RSA
Section 25 Review Process
Document awaited: Consolidated Report on Public Participation on 18th Constitutional Amendment
The Ad Hoc Committee received a briefing on the Consolidated Report on Public Hearings that summarised the oral submissions made throughout the nine provinces at public hearings as well as the 204 758 written submissions on the Constitutional Amendment to permit expropriation of land without compensation. Members were asked to refer the Consolidated Report to their political parties to be briefed on their mandate and the position they should hold when the Committee deliberated on the matter.
The Consolidated Report stated that there was consensus that there had to be an acceleration of land redistribution as this would ensure equitable access to land. Other speakers went further and said that the successful implementation of land reform programmes would provide dignity to the indigenous people whose land was forcefully taken. A different argument in the submissions was that there was a political ploy at play to dispossess land owned by white farmers.
The Report indicated that there had to be greater clarity on compensation, as there had been contention about the inclusion of no compensation in the Amendment. Whilst some argued that there were instances where expropriation would have to consider individual property rights secured through private investment in land; others argued for the unambiguous expropriation of land without compensation.
There were differing views about the custodianship of land in the country. Some argued that the State should be the custodian of all land, whilst others argued for freehold titles, both individual and communal. The Report also dealt with the role of traditional leadership in land governance and administration.
The Chairperson reminded Members that the Ad Hoc Committee was established by Parliament on 25 July 2019 and was mandated to initiate a process to amend Section 25 of the Constitution to make possible the expropriation of land without compensation. On 18 December 2019, the Committee called for public submissions on the 18th Constitutional Amendment. Public hearings took place from 28 February and ended on 7 November 2020. He thanked the leaders and members of all political parties for their cooperation in the Committee to find a solution for the country and its citizens.
The Committee would receive a briefing on the Consolidated Report containing oral and written submissions as well as the outcome of the public hearings. Members would need to discuss the Consolidated Report with their political parties and receive a mandate. Once that was completed, the Committee would convene another meeting to adopt the Consolidated Report. This would ensure that the Committee moves as one.
The Chairperson asked that the Committee be provided a full picture of the Consolidated Report, its structure and content, to ensure that Members could note if it captured all information from the public hearings and written submissions.
Mr N Masipa (DA) requested that all Members join the platform before proceeding, which was agreed to.
Prof A Lotriet (DA) voiced her dissatisfaction that Members would be briefed on a report when they had only received two days earlier. Members would not be able to deliberate effectively on it as a result. She suggested that they not proceed with the meeting.
The Chairperson said that her concerns were understandable. However, the purpose of the meeting was not to engage with the substantive issues in the Consolidated Report, rather, the Committee sought for the report to be formally tabled and to ensure that it contained all the oral and written submissions, as well as the input from public hearings. The Consolidated Report would then be referred to political parties for engagement before Members reconvene for another meeting.
Mr F Shivambu (EFF) noted that Members had adopted a Committee programme and it indicated they would deal with the Consolidated Report during the meeting. He felt that it was opportunistic of the Members of the Democratic Alliance (DA) to raise this concern. It represented an opportunity to frustrate the process.
Ms R Lesoma (ANC) said that the Committee should follow the process outlined by the Chairperson.
Consolidated Report on Public Participation on 18th Constitutional Amendment
Dr Thulisile Ganyaza-Twalo, Parliament Unit Manager: Committee Section, said she would focus on Chapter 4 of the report. She explained that the Ad Hoc Committee utilised two mechanisms of ensuring public participation in the legislative process: advertisement for written comment in the government gazette and newspapers and conducting public hearings in all provinces. The Committee received 204 758 written submissions after the advertisement. The intention of the Committee to conduct public hearings was to ensure that all members of the public had the opportunity to comment. The report included the themes that arose from oral submissions made at the countrywide public hearings, as well as a summary of inputs made in written submissions:
Views on land reform
There were differing views on the rationale for land reform as advocated in the amendment of section 25 of the Constitution. Some of which were:
• The Section 25 Amendment would be significant, as it would address the arbitrary dispossession of land and ensure that there is equitable access to land
• The Section 25 Amendment and the subsequent implementation of land reform programmes would provide dignity to the indigenous people whose land was forcefully taken
• The Section 25 Amendment allowing for land expropriation without compensation was misguided and went against both the Constitution and international laws
• There was a political motive at play which is to dispossess land owned by white farmers
Views on ownership of land
There were differing views about land ownership in South Africa:
• The State should be the custodian of all of the land in the country and once it received custodianship, it should distribute the land equitably for human settlement, commercial and subsistence farming et cetera
• State land ownership would have a positive impact on the economy, through the creation of jobs and the deterrence of monopolies forming in the agriculture sector
• Willing buyer, willing seller should continue
• The principal of expropriation of land without compensation is unacceptable as no person possessing property for which a title deed had been issued should have it taken without compensation but according to market-oriented price
Views on security of tenure and property rights
There were differing views:
• State ownership and ability to disburse land will provide security of tenure for farm dwellers and farm labour tenants
• The Section 25 amendment will enable those who live in congested informal settlements or squatter camps to finally have the opportunity to own land where they will be able to build their own houses
• The State must protect property rights so as to not discourage international investments in the country
Promotion of peace and security
The Section 25 amendment is vital to ensure peace and security not only in South Africa but Africa as a whole. As such, the Constitutional Amendment must be extended to include not only land taken since 1913 but all the way back to 1652.
Consolidated Report on public hearings
The Ad Hoc Committee was tasked with conducting public hearings to initiate and introduce legislation amending Section 25 of the Constitution. The aim was to gather the input of members of public on the Section 25 amendment. The Committee was able to host a total of 33 public hearings in the nine provinces. The meetings drew an overall attendance of 12 475 individuals. Of the 1 666 individuals given an opportunity address the Committee, 1 424 speakers supported the Constitutional Amendment with variations in how they would like to see the framing of the text. A total of 148 speakers rejected the Constitutional Amendment.
The Committee found that the majority of submissions came from supporters of political parties, mainly the African National Congress (ANC) and the Economic Freedom Fighters (EFF). Speakers who identified with the EFF said that property may be expropriated without compensation. In addition, the state should be the custodian of all South Africa’s natural resources, inclusive of land, mineral resources and water.
The Chairperson was pleased by the contents of the Consolidated Report which would serve the Committee going forward. He asked when the report was sent to all the Members.
Dr Ganyaza-Twalo replied that the Consolidated Report was sent to Members in November 2020.
Pro. Lotriet said that the DA had only received the Consolidated Report on Wednesday 10 February 2021.
The Chairperson asked if this was the case for Members of the other political parties.
Mr Shivambu indicated that all parties received the Consolidated Report in November last year.
The Chairperson said that he had asked to ensure that the committee administration had not failed in its duties. It was clear that it had not failed. Members should return to their political parties with the Consolidated Report to consider if they found any issues within it. Once that occurred, the Committee would consider adopting the Consolidated Report, with the amendments.
Mr P Moroatshehla (ANC) said that Members should be provided the opportunity to deliberate on the Consolidated Report. Afterwards, the Chairperson could provide a final summary at the end of the meeting.
Mr Shivambu reminded the Member that the Committee agreed that it would receive the Consolidated Report and Members would then refer to their respective political parties. Consideration and deliberations would occur afterwards. It was not advisable for Members to look to changing the agreed-on process.
Prof Lotriet requested that the Committee analyse and verify what was contained in the written submissions.
Ms K Mahlatsi (ANC) agreed with the Chairperson that Members would deliberate in the following meeting.
She asked if Prof Lotriet meant that the Committee should look through each written submission, line by line.
The Chairperson asked Prof Lotriet to clarify what additional information she required other than what had already been provided.
Prof Lotriet said that the Committee had a constitutional duty not only to rely on the administration to analyse the written submissions and write a Consolidated Report according to their perceptions. There could be certain things that they might have missed. In the previous Committee, it was found that many written submissions had not been included in the Consolidated Report. She requested that they go through the submissions before referring the report to their political parties.
Mr Moroatshehla said that as the Consolidated Report was first tabled during this meeting the Committee could not deliberate on its contents.
Mr Shivambu agreed that the DA members should be provided the opportunity to review the written submissions – this would ensure that the process is not delegitimised.
The Chairperson agreed with his proposal.
Mr W Horn (DA) confirmed that DA members had received the Consolidated Report on 10 February 2021.
Mr S Gumede (ANC) proposed that the issues raised in the Consolidated Report should be deliberated on when the Committee next meets.
The Chairperson agreed to the proposal.
Ms Lesoma suggested that the Chairperson’s office must take note the programme should thus be reviewed.
The Chairperson thanked all Members for their input. The Committee had to conclude this matter as soon as possible but in doing so, it should not rush the process, as it is an important matter for the country.
The meeting was adjourned.
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