In this virtual meeting, the Chairperson communicated the allegations made against him by the Democratic Alliance in a letter that addressed the unconstitutionality of excluding oral submissions from the public participation process, a decision made in the previous meeting. The DA questioned whether the list of organisations that wanted to make oral submissions in early 2020 were informed that they would not be heard and that they needed to make written submissions. The Committee highlighted the need to follow procedures so as to avoid being found to be procedurally unconstitutional. It agreed to discuss this matter the following day.
The Report on Public Participation was presented, focusing on the suggested amendments made by the Committee in the previous meeting. The amendments focused on the incorporation of the number of submissions per type and area. It was highlighted that the redistribution of land needed to begin with state owned land. The Committee highlighted that it could not fully accept the Report without having come to a decision regarding the hearing of oral submissions. Queries were raised regarding the duplication of comments by different people and how it was reflected in the report. There was debate as to whether those ‘resubmissions’ should be excluded. It was highlighted that there seemed to be no reflection of submissions in relation to the financial sector and the impact on mortgages – issues that were raised in early 2020 by the organisations that had wanted to make oral representation.
The legal and drafting matters, that were raised in submissions, were presented to the Committee by the Parliamentary Legal Services. The concerns around the facilitation of public involvement were outlined. The presentation covered a detailed clause by clause analysis of the language and its implications. The constitutionality of nil compensation was covered as well as expropriation, compensation and the rule of law. Concerns relating to international law and the decrease in investments were highlighted.
The Committee requested the opportunity to engage with their respective party caucuses as well as engage with the document further before discussing it.
Allegations against Chairperson: rejection of oral submissions/participation
The Chairperson stated that before the Committee moved to the agenda items, he be given the opportunity to address the allegations made by the Democratic Alliance (DA) against him, as the Chairperson of the Committee, and against the Committee.
This ‘may delegitimise’ the process and bring members of the Committee and Parliament into disrepute. The South African Constitution made provision for multi-party democracy and multi-party portfolio committees; these were mechanisms through which diverse political parties and/or members could/should persuade one another in pursuit of the national interest. No individual or political party, however big or small should put their interests above the national interests. The land question was a matter of national interest which should be resolved by all, regardless of their party’s political interests. The Ad Hoc Committee should be used to persuade one another in pursuit of consensus or sufficient consensus.
In his humble view it was contrary to the spirit of consensual politics for a political party to lead a democratic forum and mobilise public opinion against parliamentary processes in which they had their full right to participate in and persuade fellow Members of Parliament (MPs) and political parties to accept their standpoints. In his humble view the DA objection to the ruling of the Chair was misplaced as the Chair made rulings based on consensus or sufficient consensus in the Committee. This, therefore ruled out unilateral decisions on the part of the Chairperson of the Committee.
He had received a letter from Professor A Lotriet (DA) on behalf of the DA. The DA further issued a statement on the objection by the DA members to the exclusion of oral submissions on the 18th Constitutional Amendment Bill. The statement objected to the alleged decision taken by the Chairperson of the Committee, Dr Motshekga to reject a legitimate request by external organisations to make oral submissions on the Bill.
Firstly, there was no such unilateral decision by the Chairperson. The DA could not read that statement before the assessment of the Committee as the party demanded. It was now part of the record of proceedings. The DA was now free to make their allegations for consideration by the Committee. The discussion of these allegations and outcome thereof would be recorded. Not the statement itself. It was a fundamentally flawed view that the Committee made a unilateral decision to exclude the voices of South Africans in violation of its Constitutional obligations undermining the legitimacy of the process.
It was fundamentally wrong to suggest that the Chairperson was using the procedure as an excuse to override the Constitution. Section 56 of the Constitution enjoins the National Assembly to receive representations or submissions from any interested persons or institutions. Furthermore section 59 required the National Assembly to facilitate public involvement in the legislative and other processes of the Assembly and its Committees.
Prof A Lotriet (DA) raised her hand.
The joint statement of the DA went on to state that ‘By denying interested organisations from making oral submissions, Motshekga has wilfully violated the Constitution and contaminated the whole public participation process on the proposed amendment. The DA’s statement of objection will make it clear that Motshekga, the ANC and the EFF should bear full responsibility for this blatant violation of the Constitution”.
Lastly the DA said: “we will not allow this committee to railroad us into a rubber-stamping exercise that negates the voices of our compatriots. Failure by the committee to validate the public participation process will only invite judicial contestation on the resultant legislation”.
He stated that the DA conveniently chose to forget that Parliament established the Ad-Hoc Committee as a mechanism through which South Africans could make proposals for the resolutions of the land question. The Ad-Hoc Committee was a multi-party mechanism in which members of the political parties should seek to persuade one another in pursuit of consensus or sufficient consensus. It was proper and procedurally correct that individual members of the Committee and/or political parties represented in the Committee should raise their concerns to allow constructive engagement by other political parties, rather than make untested allegations that brought other parties and their leaders, including Parliament into disrepute. He did not want to repeat the process because it was a matter of record. He trusted that during the engagement with the DA letter, Members would restate the process to ensure that nobody or no oral submissions was excluded.
Mr S Gumede (ANC) raised his hand.
Before the Committee continued to the agenda items of the day, he would allow with the Committee’s permission engagement on the DA allegations as the allegations may impact on the discussion relating to the revised report. He restated that he was not the Committee; he was just its Chairperson and stood to be guided by the Members on the mattes raised by DA and his response to their allegations.
He indicated that Mr Gumede could ask his question.
Mr Gumede started to pose his question.
Prof Lotriet interrupted stating that her hand was up first.
Mr Gumede stated ‘no, that was what he wanted to comment on.’
Prof Lotriet repeated that her hand was up first, that the order was hands first.
The Chairperson asked that the Committee heard what Mr Gumede said before Prof Lotriet as it might have a bearing on her hand.
Mr Gumede suggested that since Prof Lotriet was not there on the day, it would be better that she first listened to their contributions and then responded after having heard what other members would have contributed. If Members had given their apologies and were absent from the previous meeting, ‘they could not then be the first speaker, not unless she said that the Chairperson had misrepresented her in the arguments.’
He supported the view that the work of the Chairperson was to summarise the contributions of the Members. He remembered that he had contributed on that day. The Member that raised the matter had even wanted to hear the recordings. There were two matters. The first one regarded a ‘certain group’ that wanted to come and give oral representations and the second one was that the DA wanted to go and ‘interact with the officials.’ These two were more or less the same. The Committee discussed the first one and came to a conclusion that those Members, ‘that grouping’ was given an opportunity out of the choices that they had – they opted to have a written submission. If one gave them the opportunity for an oral presentation, they would have been given two options. This would have come after the cut-off date. That was not accepted. The Committee discussed it and felt that although it was going to be unfair if one were to do that, the other estimated 200 000 people that contributed to the Bill would have come and wanted to do a second presentation. The Committee concluded that it was going to be a very cumbersome process. As a result, that could not be accepted. Even the last one, where they wanted to interact with the officials, it was quite clear, the resolution said that ‘any person who wanted to say anything to the officials could submit a written representation that would be given to the officials.
It was not the Chairperson’s fault. If ever it was the Chairperson’s fault, it was the Committee Members fault. This was because the Chairperson was summarising what the Members were saying. He was the first, he had contributed and if that was the case, the Chairperson’s summary accommodated his views as well as the views of the other Members.
The Chairperson stated that the unwritten rules of engagement said that those who had made allegations in writing, as the DA did, must listen to the people against whom the allegations were made. Here the allegations were made against the Chairperson, who had spoken, and against other Members of the Committee. He stated that she could not have the first right to respond, because she had put her position in writing and it was well-known. He asked whether the Committee could agree to allow other Members to speak and the Chairperson would give Prof Lotriet adequate opportunity to respond.
Prof Lotriet stated that she did not agree. She had the first right of reply in this matter, this was not a court of law. The Chairperson had not put the essence…
The Chairperson interrupted…
The Committee Members called for order
Prof Lotriet stated that the Chairperson could not disallow her and allow the African National Congress (ANC) to first speak on the matter.
The Chairperson stated that he was not disallowing her. She had made allegations and should allow those against who those allegations were made to respond. Then she could come in and clarify and put her case forward. It was a procedural matter.
Prof Lotriet stated that the allegations were against the Chairperson of the Committee.
The Chairperson stated that the allegations were not only against the Chairperson, it was also against members of the Committee. For instance, the letter said ‘those members who supported the exclusion of external organisations.’ He then stated that if there were no other hand he would allow her to speak.
Prof Lotriet stated that she took serious umbrage at the fact that the Chairperson started his reply or comments on the letter that ‘she and her colleagues’ had written to him. They had not put party interests above the matter. That was incorrect and it was an aspersion on the Members of the Committee. Secondly, the process that they had followed up to that point had been flawed, in the sense of public participation and written submissions. Their case last week, and she had to say to Mr Gumede that he should please refer her to the specific rule where she ‘may not comment,’ on what had happened in a meeting of which she was a member due to not being present. There were a number of Members who were present at that particular meeting.
The problem was that their request was not that all of a sudden everyone could make oral submissions to Parliament. If the Committee would recall at the beginning of 2020, prior to the COVID-19 outbreak in South Africa, there was a list of institutions and organisations that intended to make oral presentations to the Committee. That did not happen as a result of COVID-19. Had those particular organisations and institutions made written submissions? She had not noted their names in the report or the updated report the Committee had received. Those organisations and institutions had compelling arguments. Had those organisations been informed that they would no longer be able to make oral representation? On the basis of whose decision were oral submissions no longer taking place – it was not a Committee decision. Were those institutions/organisations informed that they now had to submit written submissions? The Banking Association of South Africa would have appeared before the Committee in Parliament. She did not see any reference to their comprehensive submission in the Draft Report. As a Committee it was their Constitutional duty to exhaust all possible comments of relevance to this Committee and the Bill. It was a Constitutional amendment - it was not just a piece of legislation. The effects of this would be far reaching. Further to that, she reiterated that they, as the Committee, were rushing the process for some ‘arbitrary’ date that had been set in a Chief Whips Forum. What was the rush? It was a Constitutional amendment – the Committee could take as long as was necessary.
Therefore, she stood by the letter that was sent to the Chairperson. She thanked the Chairperson for providing a gist of the letter because it was now recorded and would be included as part of the minutes of the meeting.
Ms D Mahlatsi (ANC) stated that for purposes of progress of the meeting underway – as unfortunately this matter was not on the agenda - the Committee was not prepared to come and discuss the present issue. She requested that the matter be deferred to the next meeting and that they progress with the business of the day.
Dr C Mulder (FF Plus) stated that he had not seen the minutes of the previous Committee meeting. Were they circulated? The minutes would give them some indication of what happened or did not happen. He requested that the Chairperson clarify what constituted sufficient consensus in relation to the Committee.
Mr R Moroatshehla (ANC) suggested that they agree that the current debate came as a result of the letter that the Chairperson received from the DA. It was good; it was the democratic right of everyone to register their concerns if not satisfied with something. The letter received was not in the Chairperson’s personal capacity. It was received in his capacity as a Chairperson, therefore the Committee needed to consider that letter. He stated that the Committee Members had not received the letter. He requested that the Administration circulate the letter.
He seconded and supported what was suggested by Ms Mahlatsi. Once the Committee had considered the letter, in their next meeting, they would be able to debate about it – knowing the context thereof. At present, the Committee had only heard the Chairperson speak about the letter, the contents were only otherwise known by the DA. He requested that the matter be deferred. The Committee could take a decision at the next meeting – even if it involved voting as to whether there was a basis to what was said in the letter.
Mr F Shivambu (EFF) stated that there was an attempt to delegitimise the entire process. He suggested that if oral representations did not take place this would be challenged at a later stage as being unconstitutional. He suggested that the Chairperson let the oral submissions take place. Let the Committee not make procedural mistakes. He did not think that it would be a ‘train-smash’ to conduct the oral presentations. Ultimately the Committee would amend the Constitution relating to expropriation without compensation.
The Chairperson stated that he was ‘persuaded’ by Ms Mahlatsi who suggested that the matter be deferred. She was supported by Mr Moroatshehla. He had operated under the assumption that the letter was distributed to the Members. Therefore it was unfair to the Members to entertain a letter that only came to the attention of the Chair but was meant for the members of the Committee.
He was also ‘persuaded’ by Mr Shivambu that the Committee needed to listen to the oral presentations. That decision must emanate from the discussion of the letter at the next meeting when all the Members would be on the same page. When the Committee considered the reasonable and accommodating proposal by Mr Shivambu, they also needed to take into account how many groups wanted to address the Committee and how much time did the Committee have for that. Was it something that was meant to delay or delegitimise the process? He could not state an opinion on that – all he could say was that the matter they were dealing with was not on the agenda and the Members had not seen the letter and therefore Members could not discuss it meaningfully.
He addressed the question raised by Dr Mulder. During the Constitution making process of which Dr Mulder was part, the concept of consensus and sufficient consensus was raised. For the purpose of this meeting he did not want to enter into an ‘academic debate.’ When they came back to discuss the matter in the context in which the question was raised, he would respond.
Dr Mulder stated that the matter dealt with up to now was not on the agenda. On the agenda was the report that dealt with public participation. If the Committee came to a decision to include oral submissions at the next meeting – that may have bearing on the public participation report they were being shown in the meeting. It did not mean that they could not continue to discuss the report, it meant that the report could not be finalised that night.
Mr N Masipa (DA) stated that Dr Mulder was correct. The Committee had accepted the report as a living document, this meant that it did not stop them from going ahead with their work. The oral submissions would have an impact on the finalisation of the report. The Committee was not obliged to finalise the report that day.
Presentation of report on public participation
Dr Thulisile Ganyaza-Twalo, Parliamentary Content Advisor, presented the report. Members had previously requested what they wanted amended in the report. She focused on those specific inputs made by the Committee.
She referred to page five. The Committee had requested the exact number of submissions that were received from members of the public. It was indicated in the report that 204 334 submissions were made.
In the previous report they had not inserted the number of areas that the Committee visited. Thus they had now indicated in the report that there were ’33 towns’ visited. This applied to page eight as well.
They had previously omitted to state the role of the language services; this was now indicated at the bottom of page five.
She referred to the third bullet on page 37, it related to people working the land. During the public hearings the importance of working the land redistributed was highlighted. This applied mainly to the agricultural land, once people got land back; it needed to be worked by those who received it.
She referred to the first bullet that related to the matter of the use of land by farmers as collateral. The feeling was that the issue of using land as collateral by farms was not sufficiently stated. This had been included.
There was a point about the state having to redistribute state-owned land first, that point was included there. “The redistribution of land should therefore begin with state owned land.”
The Chairperson asked whether they were not entitled to know how much state owned land there was first – the extent of that land.
Dr Thulisile Ganyaza-Twalo stated that that had not been highlighted with regard to the public participation submissions. She suggested that was perhaps something the Committee could consider looking at.
She referred to the first bullet point on the page, the issue there was around the fact that urban land was claimed more, not rural land in most cases.
Thus they included, “Furthermore, the claims were in respect of urban as opposed to rural land.”
A Committee Member had wanted reference to political parties to be removed from the report. That process was done.
There was one comment that could not be accommodated in the report and that Member had been made aware of that
Mr C Xaba (ANC) asked how submissions received after the deadline were dealt with. He had noted a number of submissions had come way after the formal deadline. From his understanding those submissions were normally not taken into account as it was not fair for those who had complied with the deadline.
He had looked at the submissions and noticed for example in relation to the AfriForum submissions they numbered 5 787 submissions however they were essentially one submission. He had looked at all of them. It was not necessarily AfriForum per se as an organisation but included individuals who were in support of the AfriForum submission. There was essentially one submission – very substantive, detailed and long. The rest were mainly resubmissions. He also had considered the Institute of Race Relations (IRR) that made 131 571 submissions, essentially there was one submission from many individuals. There were many objections that just said ‘no,’ and some did back-up their arguments against the amendment. How did the Team treat these submissions?
Ms T Mbabama (DA) agreed with the question raised by Mr Xaba. How did they deal with submissions where it was exactly the same submission from different people? In terms of the public hearings, the Economic Freedom Fighters (EFF) also had the same verbatim submission from everybody. How did they handle those?
Prof Lotriet wanted to focus on the substantive submissions. Were the people who were meant to present oral presentations to Parliament informed that they now had to give written submissions? They would have very compelling and substantive arguments. She had not seen anything in the report regarding the impact on the financial sector, the banking sector nor mortgages etc. That was a problem. She was concerned that the Committee was discussing the report without those submissions and presentations having been included.
The Chairperson stated that Mr Xaba and Ms Mbabama agreed in seeking those answers. He stated that he needed to be guided by the Committee. If people made submissions that were substantially the same, was it the duty of the Administration to make a determination as to which ones must be ‘thrown-out’ and which ones must be accepted. Was that not the duty of them as the Committee? He thought that Members should entertain that. If the Administration had said, ‘these submissions were substantially the same’ and eliminated some, somebody could have come back and said the Administration had suppressed some voices. He asked Members what their views were in relation to the submissions that were substantially the same. Should they be treated as one submission or as many? Or did Members want the Administration to state how they had dealt with them.
Mr Moroatshehla stated that there was no way they could say that it was a ‘single submission.’ It would be unfair. When those speakers ascended the podium, whether they read or spoke, it was taken that they represented their individual views within a public hearing platform. Whether they quoted their political party, it was neither here nor there at the level of the Committee.
Dr Mulder agreed with Mr Moroatshehla. The only submissions that could be excluded were submissions from the same individual more than once. The purpose of public participation was to give the public the opportunity to express themselves. Each and every individual that expressed him/herself should be included in the report. One could not just decide not to accept one over the other. All the submissions should be accepted.
Ms K Mahlatsi (ANC) suggested that they quantify how the submissions were received. All the submissions should be accepted. She suggested that they be quantified in a table to indicate out of 200 000 submissions, 100 000 were in a particular format for example. They should be accepted as such but quantified. That process of quantification would assist the Committee in knowing the number of different inputs and the substance of the submissions made. She reiterated that she did not agree that submissions should be rejected.
Dr M Ndlozi (EFF) agreed with the other members.
Mr Xaba stated that his previous question was directed to the staff, as to how those submissions were treated. It simply needed to be recorded as part of the meeting, that the question was asked and answered.
The Chairperson was happy that the Administration, without fear or favour, correctly reflected what was received. It was not the duty of the Administration to explain – it was a political matter which was politically dealt with. He believed that the members had been answered in that regard.
Dr Mulder stated that in the previous meeting, he had referred to page 25 of the report. Page 25 considered the public hearings in the towns, it gave an exact breakdown and came to the conclusion that so many people were in support of the Bill, so many were against etc. He suggested that the Committee needed to see the final numbers in relation to the written submissions – and who was in favour or against the Bill. This had not been included in the draft that had been presented.
He referred to page eight, which stated that some submissions were ‘resubmissions.’ Based on what was just discussed, this should not be included in the report.
The Chairperson stated that there seemed to be some numbers that needed to still be included. He had not heard any of the Members state that the report was not accurate. If that observation was correct, was the Committee not in a position to adopt the report?
Mr Xaba reminded the Members what was said at the previous meeting. They were left with two options; accept the report subject to amendments raised at the meeting. The second was to accept the report after they had seen the additions incorporated in the report. He suggested that they were now at the point where they should honour what was agreed at the previous meeting and accept the changes that were incorporated –as there were no objections. He moved that they accept the report with the amendments.
Ms Mahlatsi highlighted the resolution taken by the Committee earlier in the meeting about the oral submissions. Unless they were going to agree in principle that they would deal with the oral submissions – if they agreed to do so in the next meeting – it would be a separate report that would be incorporated into the report before them. If that was not the case, she suggested they note the document as a living document subject to the possibility of accepting oral submissions – as would be decided in the next meeting.
Ms Mbabama stated that she disagreed with accepting the report as the Committee needed to decide about the oral submissions the following day. If people did make oral submissions – the report would not be a true reflection of what the public said.
Dr Ndlozi suggested they agree on the issue of oral submissions. He could not understand why it was left out. He suggested they agree that they would take oral submissions. The Committee could consider the report thereafter, once the oral submissions had been included. They did not want to leave any stone unturned. The Committee needed to exhaust the process and listen to all South Africans.
Dr Mulder stated that they had already agreed that the matter would be discussed and decided at the next meeting after Members had received the letter. He stated that they were using different terms, such as ‘to adopt,’ another said ‘take note,’ the other said ‘to accept.’ If they were going to allow oral submissions, they could not adopt the report, as those oral submissions would need to be included in the report. They could accept the amendments that were made by the staff as part of the working document.
The Chairperson stated that they could not agree yet as to whether they would accept oral submissions as the Members had not seen the letter from the DA. The Committee could accept the amendments made to the document but they would defer the adoption of the report in case they accepted oral submissions. The report was a living resource document on which the Committee would continue to work on. It did not affect their way forward.
Prof Lotriet stated that the moment the Committee accepted the report; it was more than a living document. It was a document accepted by the Committee and it would probably be incorporated in the Announcements, Tablings and Committee Reports (ATCs). At most they could note it, because it was not a final document. She was extremely hesitant in accepting a report in a piece meal manner. Until they had the final report they could only take note of it.
The Chairperson stated that, with respect, in the previous meeting it was agreed that it was a living resource document. During the meeting underway, the additional thing that had taken place was that the recommendations to the report were included. There was no challenge on the content. He noted that if the Committee accepted oral submissions it would impact the document.
Ms Mahlatsi stated that she thought they were now dealing with semantics however she agreed with the Chairperson’s summary. In the previous two meetings they had accepted the report as a living document. She suggested they accept the document but assure Members that it would not be ATCed for the benefit of Ms Lotriet.
The Chairperson stated that they were not formally adopting the document, it was subject to improvements.
Presentation of section 25 (CAB 18) legal drafting matters raised in submissions
Ms Charmaine van der Merwe and Ms Telana Halley from Parliamentary Legal Services presented the presentation on the legal drafting matters to the Committee. The presentation highlighted the submission and the Office’s response in bold italics.
Consultation processes required for section 74 Bills
Section 74(5) – At least 30 days before its introduction, the committee must--
- publish particulars of the Bill in the Gazette for public comment;
Comments were received and are being considered.
- submit particulars of the Bill to the provincial legislatures for their views;
No comments were received from the provincial legislatures.
The proposed classification of the Bill was that the Bill is a section 74(2) Bill that contains provisions that pertains to customary law or customs of traditional communities (section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003)
- The Bill was duly referred to the National House of Traditional Leaders and comments were requested.
- NHTL supported the amendment. Inputs are addressed with the relevant theme above.
Facilitation of public involvement/process concerns
Inputs on the linked Expropriation Bill should have been considered.
The constitutional amendment and the Expropriation Bill are following two distinct processes. Each has its own process for submissions, but reference to the one can be made when commenting on the other.
The public should have been able to comment on the circumstances.
This opportunity will be / is provided in the process being followed with the Expropriation Bill.
A short time was given to comment and it was advertised just before the festive period.
Not only was the period to comment extended, but the Committee visited every province and every person who attended was allowed to add to their submissions or make new submissions.
Insufficient information was given (is “nil compensation” the same as “without compensation”?)
The advert indicated that any queries may be sent to the Committee Secretary. No queries were received outside of those mentioned in submissions.
The preamble is misleading—
- Nil compensation is not necessary – land reform has been happening without it;
- The demand for land is not as stated in the preamble – people have opted for money instead of land; and
- The view of the people iro land reform is that it is not one of the more serious problems that the country face.
The preamble was taken from the CRC report.
Add that expropriation without compensation is the only legitimate option.
The concept of compensation cannot be ousted, but it can be nil. Compensation as a concept is closely linked to the concept of expropriation. This is globally accepted. However both our Constitution and International Law principles, by implication or expressly, recognises that compensation may be less than market value.
Add that “historic wrongs” refer to colonial and apartheid wrongs
“Historic wrongs” include colonial and apartheid wrongs.
Africans must be empowered to own all categories of land
The concept of “land” includes all categories of land.
(a) by the substitution in subsection (2) for paragraph (b) of the following paragraph:
‘‘(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court: Provided that in accordance with subsection (3A) a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.’’;
Concerns regarding Clause 1(a)
Circumstances for nil compensation:
The proposed provision at s25(2) must be made subject to s25(3 )’s factors.
The Bill bypasses the circumstances that currently determine compensation (subsection (3)) and replaces these with circumstances be determined by national legislation.
The proposed amendments (section 25(3) and the new (3A)) clearly link sections 25(2)(b) and the new section 25(3A) with section 25(3).
i.e. subsection (3) DOES apply to nil compensation and the national legislation envisaged.
“… a court may”, should be “must”
Discretion is very important as various factors will play a role in determining compensation.
Improvements on land:
This extends the current meaning of land reform and should not be included.
This amendment is unlawful because it exceeds the scope of the recommendations made by the committee.
Improvements were included based on the workshop that the Committee held.
Instructions are requested on whether it should be removed.
This could include a person’s primary house and thus impacts on the right to housing.
The Bill does not exclude any of the principles that are housed in the rest of the Constitution. All the factors in section 25 and other constitutional rights must all still be taken into account.
A definition is required. In s25(8) “land reform” is restricted to reform that addresses the consequences of past racial discrimination.
A court may thus attach and wider meaning to “land reform” in section 25(2).
We will need the wording of such a definition alternatively, it can be linked to section 25(8).
Many submissions expressed concern about “land reform” being vague. It is recommended that it be linked to section 25(8) (see slide 29 for proposed wording).
This amendment need not be advertised again as it results from the inputs and suggestions received and does not change the meaning of section 25(2)(b).
By singling out land reform over the factors in section 25(3), the result is not an “equitable balance”.
Subsection (8) already singles out a number of reforms. This focus on land or water or a related reform is thus already envisaged in section 25.
Land reform is further not singled out OVER section 25(3). The conditions of subsection (3) are still applicable.
The role of Courts:
The courts currently determine in each circumstance whether a nil compensation should be granted. This provides judicial protection. The courts should be a driving force behind nil compensation and not the Executive. The Courts should always approve nil compensation, even if there is an agreement.
A balance between security of tenure and protection of property is possible when decisions and administration of land reform rests with the executive instead of courts. The resolution did not envisage delegating the decision regarding expropriation without compensation to the Courts. The courts as the initial decision makers will be unduly cumbersome and time-consuming. The state has the authority to determine that in a particular case the just and equitable amount of compensation is nil. The role of the Courts should be left to resolving final disputes.
(b) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words:
‘‘(3) The amount of the compensation as contemplated in subsection (2)(b), and the time and manner of any payment, must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including—’’; and
(c) by the insertion after subsection (3) of the following subsection:
‘‘(3A) National legislation must, subject to subsections (2) and (3), set out specific circumstances where a court may determine that the amount of compensation is nil.’’.
Constitutionality of nil compensation
The amendment is a limitation of the existing right to receive compensation for land that has been expropriated.
- The amount of, and time of manner of payment of, compensation must be just and equitable.
- If compensation does not meet this requirement it will be unfair and inequitable and cannot be considered reasonable and justifiable as contemplated in the limitations clause, section 36.
Expropriation must always be accompanied by compensation. Compensation is a core requirement and expropriation without compensation is confiscation.
- The European Court of Human Rights: James and Others v The United Kingdom - compensation “is material to the assessment” to determine if there is a “fair balance between the various interests at stake” and critically whether “it does not impose a disproportionate burden” on the person.
- In Florence v Government of the Republic of South Africa (2014(6) SA 456 (CC) the CC held that compensation within the scheme of the Restitution Act is “neither punitive nor retributive. It is not likened to a delictual claim aimed at awarding damages that are capable of precise computation of loss on a “but-for” basis. It is a constitutionalised scheme paid out of public funds in order to find equitable redress to a tragic past.”
- Land Claims Court in Nhlabathi and Others v Fick (2003 (7) BCLR806 (LCC)): There “can be circumstances where the absence of a right to compensation on expropriation is reasonable and justifiable, and in the public interest (which includes the nation’s commitment to land reform)”.
- This was iro cultural beliefs being exercised, but similarly other circumstances may exist.
-The Constitution cannot be used as a barrier here as subsection (8) expressly says that the provisions of the section cannot impede land, water and related reform.
- In the 1990s targets set in, or articulated in, the Reconstruction and Development Plan were premised on section 25 used as a toolkit to do so.
The Bill is drafted on the basis that it is already implicit in the Constitution that in certain circumstances it will be just and equitable for compensation to be nil.
Subsections (3) and (3A) make it clear that the requirements of subsections (2) and (3) remain relevant to determining whether compensation may be nil.
Section 36 is not applicable as this is not a limitation to compensation.
Section 25 provides factors that must be considered to determine what the amount of compensation should be.
In certain circumstances, it would be just and equitable for compensation to be nil.
This will be unpacked under the discussion on compensation and the approach in international law below.
Expropriation, compensation and the rule of law
The Bill affects, and is against, the Rule of Law (section 1(c) of the Constitution).
- Rule of Law = the law must be clear, publicised, stable and just, applied evenly and protect fundamental rights, including the security of persons and property.
- Providing for national legislation to set out circumstances results in uncertainty of law. The circumstances should be included in s25 in a closed list.
The Bill upholds the principles of the Rule of Law, in that it adheres to the—
- Principle of authority (constitutional amendments are permitted and in line with Constitution and therefore the state has the necessary authority);
- Principle of procedural legality (the procedural aspects of law making will be followed including an extensive public participation process); and
- Principle of substantive legality (the Bill in itself protects and promotes fundamental rights (promoting the rights of those who have experienced land dispossession, whilst balancing the rights of those whose land will be expropriated). The Bill makes explicit that which is already implied in the current reading of section 25 of the Constitution (see section 25 (8)). The Bill also has a rational purpose and the wording of the Bill is linked to that rational purpose).
The requirements of subsections (1) (expropriation is a form of deprivation), (2) and (3) still apply. Any circumstance contained in national legislation will be subject to compliance with these subsections and section 36. The national legislation will thus be subject to the Constitution as the supreme law (section 2) and thus to the rule of law.
International Law concerns raised
The Bill breaches international obligations – conflicts with treaties SA has signed and ratified namely:
- Article 17.1 and 17.2 of the Universal Declaration of Human Rights
- Article 4 of the Resolution on Permanent Sovereignty over natural Resources 1803 (XVII) of 1962 (UN) (“Resolution 1803”)
- Article 4 (c) of the Treaty of the SADC – with reference to the SADC Tribunal case of Mike Campbell (Pvt) Ltd v Republic of Zimbabwe
- Article 26 of the International Covenant on Civil and Political Rights (“ICCPR”)
- Article 1 of Protocol No. 1 – with reference to the European Court of Human Right’s judgment Pincová and Pinc v Czech Republic
The 2011 UN Conference on Trade and Development’s series on issues in international investment Agreements supports the argument that the Bill breaches international obligations.
The Bill will expel SA from AGOA Investments may decrease as the Bill will effect section 10 of the Protection of Investment Act 22 of 2015
Investments may decrease as the Bill will affect section 10 of the Protection of Investment Act 22 of 2015
Section 10 of the Property Investment Act: “Investors have the right to property in terms of section 25 of the Constitution”. This Act thus already applies the implied concept that it may be just and equitable for compensation to be nil in certain circumstances. However, whether the Bill will have such an effect on foreign direct investment, that it should not proceed, is a matter of policy for the Committee to consider.
Prof Lotriet suggested that it might be premature to discuss anything substantive in the report/presentation. She proposed that they first wait for the oral presentations to be included in the presentation and thereafter have another presentation to deal with it.
Dr Mulder requested a copy of the presentation. The things included in the presentation would likely require members to get instructions from their party caucuses. He requested they be given sufficient time for this.
Ms Mahlatsi agreed with the other Members and suggested that due to time constraints they engage on this matter at another time. She suggested that they accept the presentation and go and get further input from the party caucuses. She suggested the meeting the following day be used to decide upon the issue of oral submissions. The Committee could come back the following week to discuss the presentation given.
Mr Masipa reiterated that it was important that they were not rubber-stampers and should not be rushing the process. The Committee should ensure that the correct decisions were made relating to the law. The oral submissions were very important, thus the DA’s position that the oral submissions needed to be incorporated in the presentations meant they would need to consider the presentations at another time.
The Chairperson asked for input regarding the suggestion that they convene the following day to discuss the matter of oral submissions.
Mr Xaba summarised the arguments previously made, that there was overwhelming support that the discussion on the presentations be deferred. He supported the suggestions of the other Members. He also supported the suggestion that they discuss the oral submissions the following day when they convened.
The Chairperson stated that the matter of the presentations from the Parliamentary Legal Services would be deferred. The Committee would convene the following day to discuss the question of oral submissions. It was requested that Administration distribute the letter from the DA.
The meeting was adjourned.
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