Public Participation Report: discussion

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 19 February 2021
Audio: Public Participation Report: discussion; Revised Committee Programme

Section 25 Review Process

In a virtual meeting, the Ad Hoc Committee met to debate its draft public hearings report on the amendment of section 25 of the Constitution.  The report had been presented to the Committee at a meeting held the previous week. Members of the Committee had initially received the report electronically in November 2020 to go through it.

Committee Members were concerned about how they were going to debate and adopt the report without first having accessed written submissions sent to the Committee. Some Members felt the process was being rushed. They requested that they be given time to access the written submissions and go through them first.

It was agreed that the purpose of the current meeting was not to adopt the report but to allow Members to make submissions and suggestions. The Committee agreed that they could not continue to debate the report that was before them with the purpose of adopting it. The report needed to be cleaned. Views expressed by the public had to be presented separately from legal analysis and interpretation. Submissions made by lawyers should be referenced.

The Chairperson reminded Members that the Committee had received oral and written submissions and had held public hearings. The Committee’s administration had now compiled a report for consideration by the Committee. Members were entitled to have access to information, but it did not mean that there would be an extension of time. They should accept that the report had been compiled. There would be another meeting Friday the following week to allow the process to continue. The Members could continue reading the submissions even after the meeting to prepare for the discussions on the Amendment Bill.

Meeting report

Opening remarks

The Chairperson opened the meeting and welcomed Members. In his opening remarks, he said it was important that Members of the Ad Hoc Committee should always practice political tolerance, persuade one another and not shout at one other. He said opposition Members were important because they represented a different school of thought and the work of the Committee must be guided by political tolerance. He stated that the amendment of section 25 of the Constitution was not a matter concerning a certain political party, but a South African matter and all South Africans who put South Africa and its future first would refrain from endangering the land expropriation process. He said some of the house rules were self-respect and respect for others and not doing to others what one would not want done to oneself.

The Chairperson said he would be impartial and would not be guided by his political affiliation. He would be guided by the merits and demerits of the arguments. He would be persuaded by superior arguments and not by lamentations about historical injustices. There had been successful public hearings. The Committee’s administration had received oral and written submissions. The Members had decided that the oral and written submissions should be brought together with the outcomes of the public participation process in one document. The administration had produced that document without interference by any political party or the Chairperson and it had been circulated in November 2020.


Ms M Lesoma (ANC) thanked the Chairperson for his opening remarks. She asked whether information that had been requested two weeks earlier had been circulated, because she had not received any.

The Chairperson responded that the person responsible for the presentation would respond to the question.

Ms T Mbabama (DA) said the Democratic Alliance would like to express its strong rejection of the rushed way in which the whole process was being dealt with. There had not been enough time to physically peruse the individual submissions adequately. Interested parties had not been given the opportunity to make oral submissions to Parliament, as was the norm.

The Chairperson said he did not agree that the process was rushed, because the DA had participated in the public hearings, it had participated in the adoption of the draft Bill and it had agreed to the process. When there was a request for an extension of time, this had not been resisted. Time had been extended to allow more submissions. He noted the objection. He placed on record that the process was not flawed.

Prof A Lotriet (DA) said that she fully agreed with the opening statement of the Chairperson and that they were busy with a very important process, the amendment of the Constitution. The level of due diligence and procedure was much higher for the Committee. Ms Lesoma had referred to the question of access to written submissions. Members had not received them. They had only received an SMS a day previously requesting their parliamentary email addresses. It was a problem if Members were going to discuss a report based on written submissions that they had not yet had access to. There were a few high-level expert submissions that would have been heard in Parliament at the beginning of the previous year and those had just disappeared. The submissions made very specific proposals in terms of wording of legislation. If they discussed the report without having insight into the expert submissions, they were not going to do justice to the whole process.

Ms Lesoma explained that the reason why she had raised the question of information that had been requested was so that they did not waste time in dealing with the issue. Nobody was prevented from requesting the information. She said that the report had been received the previous year and there had been enough time to request the information. She suggested that the meeting should continue.

Mr S Gumede (ANC) welcomed the opening words of the Chairperson. He felt it was unfair for any Member of the Committee to say the meeting was being rushed. They had been trying to address the issues before them for more than 18 months. At their previous meeting, Members had raised a similar concern about access to the documents. It had been noted that a lot of information had been left out. The Members had unanimously agreed to defer the issue that was up for discussion to the current meeting, as it was a substantive matter.  He said he expected Members to request the Chairperson to include an agenda item where they would discuss the availability of the documents.

Mr P Moroatshehla (ANC) commended the Chairperson for his opening remarks. They should have assisted the Members as the Chairperson had been clear and had not said that what was going to be presented would be adopted as a final report. It was important that Members be briefed so that they could make an input where they wanted to. He was of the view that the concerns of the DA should be raised when the amended programme was under discussion because it was at the level of the amended programme where they would agree or disagree on whether they were rushing or not. He asked whether Ms Lesoma had intended to say that they would not be debating the report without the submissions as requested. Debating the report was not going to be an overnight thing, it was a long process. At the previous meeting, Members had agreed that the report was coming to the Committee formally for the first time. He said the fears of the DA should not stop it from discussing the report. They must avoid wasting time until the whole job of the Ad Hoc Committee was frustrated.

Adv G Breytenbach (DA) said she supported the submissions made by Ms Mbabama and Prof Lotriet. She too would like to hear from the experts who made the expert submissions. She would like access to the physical public submissions in order to engage with them. She requested that they be made available.

Mr J Malema (EFF) said the problem was that despite what the Chairperson had ruled, Members still insisted on predetermined positions. He said the procedure was very simple. Only after the report had been tabled could Members make the submissions that they were making. Once the report had been presented, all of its shortcomings, including the procedure, would be raised and they would agree on a way forward. He suggested that the report should be presented and if Members were unable to make an input, they would agree on a date for making their submissions after receiving the information they had requested.  

The Chairperson agreed with the statement made by Mr Moroatshehla that they were not going to adopt the report. He said the statement agreed with what Mr Malema had said, that they should engage the report and if there were shortcomings, they would highlight them and the submissions that the DA was making if they were not reflected on the report. On the issue of the programme, Members should know that he was accountable to the Chair of Chairs who represented the leadership of Parliament. He was not dictating things, but he made recommendations and they were subject to approval by the House Chair and the leadership of Parliament. He said written submissions on the text would be relevant when they were dealing with the draft Bill. They were dealing with the report and they should focus on it and make a request that the requested submissions be made available.  Members who said submissions had been lost should indicate which these were.

Ms K Mahlatsi (ANC) requested that the administration should account for those submissions.  

The Chairperson requested that they allow the administration to make the presentation and respond to the accusation. The question would be relevant when submissions were made after the presentation.

The Committee Secretary replied to the question of access to submissions. He said they had requested email addresses from Members as those who provided personal email addresses would not be able to access the submissions for security reasons. The report had been presented on Friday the previous week and the purpose of this meeting was to engage on that report

Engagement on the report

Mr V Xaba (ANC) confirmed that the report had been presented at their previous meeting. In the current meeting, they were meant to consider the report for purposes of adopting it. He referred Members to the conclusion of chapter one on page six of the report which read that the report represented “all the information on the public participation activities undertaken by the Committee and consequently the views of the public on the Bill.” The report was intended to empower Members of the Committee by providing them with public views on the Bill and to enabling them to use its contents when deliberating on the clauses of the Bill.  He also referred Members to the conclusion of chapter two on page 18 of the report that said that “the report therefore fairly presented the views of submitters who participated in enriching the legislative process with regards to the Constitution Eighteenth Amendment Bill.” The last clause on the last page said that the report adequately captured the views of the public.

He said that the report must present the views of the public clinically as they were presented in oral and written submissions. The interpretations of the authors were not supposed to be included in the report as they were likely to unnecessarily divide the meeting. Public submissions should have been noted as public views and not interpretations. He also said legal analysis should not have been included in a report that was meant to be adopted because they did not know who had asked for the opinion, who gave the opinion and whether they were competent to do so. 

Mr Xaba read page 15 of the report which made mention of emerging themes from written submissions, one of which was a theme on the contravention of the Constitution and international laws. The theme talked about the sections or instruments that the submissions were either breaking or strengthening. It raised issues around permanent sovereignty over natural resources and compensation of the owners of the land that would be appropriated. He said the legal opinion went as far as suggesting that the Constitution be made subservient to national legislation. The report suggested that the amendment was in breach of section 36 of the Constitution. It cannot be expected for Members to adopt a report while it had strong assertions that the Committee had not debated. Another view said the state should be limited so that it did not abuse its power. It also asserted that the expropriation of land without compensation would lower the value of farmland and banks would not be in a position to lend money to those who wanted to develop the land as a direct result of expropriation.

Mr Xaba said there was no issue with chapter three as it reflected the views of the public as they were. He asked about discussions on public insight referred to in chapter four. Who was involved in those discussions? He agreed that the report captured the views of the public but it also contained legal opinions and legal interpretations that they would be locked into if they adopted the report. The report needed cleaning. Anything that did not reflect public views should be removed and legal opinions meant to assist the Committee should be in a separate document.

Adv Breytenbach agreed with Mr Xaba. She said their job was to listen to the views of the public. They needed to have physical access to the submissions of the public to make sure that the report reflected those views. They could not take the word of the administration that the report reflected those views. Members needed to know what the views were.

The Chairperson said he had already made a ruling that all Members were entitled to access to the public submissions.

Mr Gumede said he fully supported what Mr Xaba had said. They were not there to consider the views of the drafters or the lawyers, but the submissions of the public. They had the themes that had arisen in the written submissions, but they did not have them for the oral submissions. That indicated an inconsistency in the report and they could not view the report as an adequate transcription of what the public had said.

Ms Mahlatsi welcomed the input made by Members. She said they had attended the public hearings but they were not aware of the written submissions as they had not seen them. However, they wanted to believe that the administration had done a good job in consolidating the submissions. She said it would be unfair for the administration to present interpretations informed by their own views and not those of the Committee itself. The legal opinions included in the report had not been requested by the Committee, but she wanted to believe that the administration wanted to be proactive in assisting the Committee. Some of the legal opinions were not related to the clauses themselves but issues that were raised during public hearings which had no bearing on the nine clauses of the amendment. She said that the legal opinions and interpretations must be removed from the report as they were not necessarily indicating the opinions of the public.  She thanked the Committee Secretary for responding to the issue of the written submissions and advised Members to go to their emails as indicated.

The Chairperson said his reading of the situation was that the report had legal analysis and legal interpretations which did not belong in the report. If they adopted the report with the legal opinions and interpretations, the process might be out of order. He agreed with Members that the report, as it was before them, could not be up for adoption. Members were correct in requesting access to the written submissions. They had two tasks: the report had to be cleaned up before the next meeting and Members must receive the written submissions. He said that they could not take matters further until the two tasks had been performed. They should adjourn until the following week.

Mr N Masipa (DA) said this should not be a rushed process as they were dealing with the amendment of a supreme law. He asked if it was realistic that they would all have dealt with the 2 000 submissions by Friday of the following week. He said they had to interrogate each and every submission that was before them and ensure that they made factual input into the legislation. He said there might be people who have made written submissions who would want to come to the Committee to present oral submissions. What did they do about those? He said they should not rush the process and should make sure they ticked all the boxes.

Ms Lesoma said she agreed with the summary made by the Chairperson. She asked Mr Xaba if he had any of his submissions written down to send them to the administration.

The Chairperson agreed with Ms Lesoma. They would request Mr Xaba to write his suggestions down and they would also include them in the minutes of the meeting.

Mr Malema agreed with the Members and the Chairperson.

The Chairperson said the process was that they called for oral submissions, they called for written submissions and they held public hearings. The second stage was that the administration compiled a report for consideration by the Committee and that had been done. Members were entitled to have access to the information but it did not mean that there would be an extension of time. They should accept that the report had been compiled. Access was going to be given to Members and they were going to hold a meeting by Friday the following week to allow the process to continue. The Members could continue reading the submissions even after the meeting to prepare for the discussion on the Bill.

Dr Thulisile Ganyaza-Twalo, Unit Manager, Committee Section, Parliament, thanked the Chairperson and Members for their input. She said the authors of the report would require guidance on how to go about doing what Members were asking for because the report consisted of extracts from the submissions themselves. Some might appear as legal analysis because some of the submissions were made by lawyers. The authors read the submissions and put them in the report as they were. They took the headings as they were from the submissions and put them in the report.

Ms Mbabama suggested that they should reference the submissions from lawyers so that Members could see them.

The Chairperson said that the Committee Secretaries should work with Dr Ganyaza and the authors to clean up the report. He agreed with the proposal made by Ms Lesoma on having written input made by Mr Xaba. At the next meeting, there would be no extension of time. They would have to debate the report until they adopted it.

The meeting was adjourned.



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