Draft Constitution Eighteenth Amendment Bill: public hearings & inputs from departments

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 25 March 2021

Consolidated Report on Public Hearings
Section 25 Review Process

The Ad Hoc Committee convened in a virtual meeting to receive inputs from academics associated with the South African Research Chair in Property Law and various departments on the Draft Constitution Eighteenth Amendment Bill.

In their submission, the academics said that the mandate of the Committee, in proposing amendments to the Constitution, was to make explicit what is implicit in the Constitution as far as compensation is concerned.

Members requested clarity on whether the courts would become more actively involved in the administrative process and expressed concern that, if this were to be the case, the notorious corruption and incompetency of the Land Claims Commissions would hamper the expropriation process. Members suggested that expropriation without compensation could be made the default position, with the burden of proof shifted to the affected party to justify why, in their case, circumstances exist for compensation to be paid.

The Committee had invited the departments responsible for public works and infrastructure; agriculture, land reform and rural development; justice and mining, to make submissions to the Committee on the draft bill, in terms of National Assembly rule 275(b).

The Department of Justice and the Department of Mineral Resources and Energy were not present in the meeting and the Department of Public Works and Infrastructure and the Department of Agriculture, Land Reform and Rural Development had come with lawyers who had prepared narrow, technical comments on the content of the draft bill.

This led to long discussions between Members, who had wanted the departments to address them on the challenges that were raised during the public hearings on the draft bill and present the remedial action they would adopt in response to the oral and written submissions. Some of these blamed the departments for mismanagement, incompetency and corruption. These responses were needed to inform the Committee’s process.

After hearing some of the remarks prepared by the advocate briefed by the Department of Public Works and Infrastructure, Members agreed that legal opinions were of no use and relevance to the Committee at the present stage of its work. The Committee decided to release the departments and reschedule their appearances.

During the discussion, Members questioned whether the process of amending the Expropriation Bill should be halted until the Ad Hoc Committee had finalised the amendment of the Constitution, given that the Expropriation Bill must be aligned with the Constitution. The present programme of the Portfolio Committee on Public Works to consider amendments to the Expropriation Bill was now running concurrently with the Ad Hoc Committee’s process – but the constitutional amendment had to be concluded first in order to inform the Department’s process. The Chairperson said he would consult with the Chairperson of the Portfolio Committee on Public Works (who is a member of the Ad Hoc Committee, but was not present in the meeting).

Meeting report

The Chairperson thanked his administrative team for the efficient organisation of the present meeting. He welcomed Members and the entities who were to speak to their submissions. He reminded everyone that the High-Level Panel chaired by former president Kgalema Motlanthe, as well as the written and oral submissions made during the respective public hearings, raised serious questions about the pacing of the law reform process in South Africa and the competence of government in implementing the process.

On the previous day (24 March 2021), the Committee had received word that the Minister of Agriculture, Land Reform and Rural Development informed the Portfolio Committee on Public Works and Infrastructure that she believed the Department [of Public Works and Infrastructure] had no capacity to discharge its responsibilities. Some of the submitters from the public hearings claim that there is massive corruption in the law reform process.

On the previous day, the Committee was also told by the National House of Traditional Leaders that it wants the restituted land to be given to it, and that it has a developmental master plan. The National House of Traditional Leaders also claims that the Community Property Associations (CPAs), established alongside the Traditional Councils, are created through centres of power, are corrupt, and do not act in the best interests of the public.

The Legal Aid Justice Centre pointed out that communal land was being alienated for use by the mining houses of business who build shopping malls, which do not serve the interests of the surrounding communities.

There is a school of thought which says that the expropriated land should be placed in the hands of the State – which is allegedly incompetent, corrupt and has no capacity to drive the law reform process forward. The Chairperson said that the Ad Hoc Committee is required by the law, in the form of the Constitution, to listen to all South Africans, both black and white, and to the affected departments, in terms of the audi alteram partem rule – both sides must be listened to before making a judgement.

The Committee was pleased that the departments and entities accepted its invitations to appear before it and address the challenges faced by the departments and present the remedial action adopted in response. The Members of the Ad Hoc Committee would decide how to deal with the situation of the absence of the Department of Justice and the Department of Mineral Resources and Energy.

Presentation by the South African Research Chair in Property Law
Prof Elmien du Plessis took the Committee through the submission (which is available on the PMG web page for the meeting).

The submission represented the views of a group of various academics who specialise in property law – more specifically, section 25 of the Constitution.

Their submission was made under the guidance of the South African Research Chair in Property Law (SARCPL), currently awarded to Professor Zsa-Zsa Boggenpoel, but any comments made are made in the personal capacity of the commentors and should not be attributed to the SARCPL as an institution.

Prof du Plessis’ thesis called for a change in the legal culture of expropriation – to move away from the fixation on market value, which is the standard contained in the Expropriation Act of 1975 – and to move towards a more constitutional requirement of just and equitable compensation. The issue of how one calculates just and equitable compensation is raised in response.

This issue called for an interpretation that ensured justice and equity in every specific circumstance, which she argued will facilitate the project of transformative constitutionalism and bring about large-scale social change through non-violent political processes that are grounded in law. This vision was in line with the purpose of this Chair in Property Law – namely, to develop property law in the new constitutional dispensation through the production of comprehensive academic texts, and a body of highly-skilled, young scholars, who are able to assist in the development of property law.

The law and the judiciary are not perfect – this is evident in the slow development of post-apartheid expropriation law. This development was slow for various reasons: there has been a lengthy wait for expropriation legislation in line with the Constitution – according to the Portfolio Committee on Public Works and Infrastructure, the Bill might be passed in July 2021. The Bill, as it currently stands, is making explicit what is implicit in the Constitution. In the Constitution, there are no hard and fast rules – there are frameworks which lay down principles. The hard and fast rules are laid down in detailed legislation or refined in courts. Another reason is that there has been very little jurisprudence on section 25 in the land reform context specifically.

The SARCPL’s role is to help this Ad Hoc Committee fulfil the mandate of making explicit what is implicit in the Constitution. The Constitutional Review Committee’s mandate was to ask whether South Africans think the Constitution should be amended, by giving a simple ‘yes’ or ‘no’ answer. The Constitutional Review Committee found that the answer was yes, the Constitution must be amended. The SARCPL disagrees with this decision, but its submission does not dwell on the desirability or not to amend, and it accepts the outcome of this democratic process.

The Constitutional Review Committee’s mandate was thus to make explicit what is implicit based on the previous Committee’s recommendations – this means a legal position must be clarified. This Committee indicated that there seem to be two predominant opinions of what is implicit, and therefore, it must first be determined what is implicit before it can become explicit. This will require an interpretive exercise of the constitutional text, knowing that language often allows for more than one equally valid interpretive reading of the Constitution.

As part of an open community of interpreters of the Constitution, the SARCPL’s submission was based on its legal expertise, clarifying what it regards as implicit, suggesting an amendment, and commenting on the draft amendment.

In the opinion of the SARCPL, a reading of section 25(3) that takes into account justice and equity based on an open list of factors listed in the section, but not restricted to those factors, allows that, in some instances, expropriation of land is possible at little or zero rand compensation. This is a contextual question and will depend on each case – the duty to compensate remains, even if the amount is zero, and the State will have to justify why, in those specific circumstances, zero rand is just and equitable.

The SARCPL proposes that words be added to the end of section 25(2)(b), or that a section 25(3A) is added which explicitly states that, in some instances, when taking into account all the relevant factors, it may be possible for compensation to be zero.

The proposed wording can be interpreted as conferring exclusive authority to determine zero compensation on the courts. The SARCPL decided that this will require the State to halt the process of expropriation in every instance where it contemplates zero rand compensation, in order to let the courts decide whether this is just and equitable.

Alternatively, the state can easily dodge this by offering very minimal compensation that is not zero/nil. An administrator should decide when an instance should be a zero rand instance, and this administrator would have to refer back to the courts for confirmation. (View the submission for further detail.)

The Chairperson requested clarity on whether the SARCPL was suggesting that there should be an administrator appointed to decide on the amount of compensation, subject to the approval by the courts. If so, does this not mean that the courts would now be more actively involved, to the exclusion of the Executive Authority? If this is the case, is the SARCPL aware that, at the moment, the Ministry and the courts depend on the Land Claims Commissions, which are notorious for corruption and incompetency? Therefore, would the proposal actually fail to take South Africa forward, instead leaving it in the hands of a system that, thus far, has not worked?

Prof du Plessis explained that, when referring to an administrator, she meant the Executive. She stated that the terms ‘official’ or ‘member of the Executive’ should have been used in place of ‘administrator’. This person makes the decision whether to expropriate or not, and they draw up the expropriation notice with details such as the property and the compensation amount.

The SARCPL argues that, even with zero rand compensation, the normal expropriation process should be followed because the courts always have a role to play – either as the final decision-maker, or the one approving zero rand compensation.

There are a lot of mechanisms available for people to dispute the amount of compensation during the administrative process, and the courts only get involved once this process is completed and the person is still not convinced that their compensation should be zero. The SARCPL decided that the administrative process should be allowed to run its course, after which the courts are allowed to get involved – the courts should not be the ones that determine that zero compensation should be given from the beginning.

She acknowledged the Chairperson’s comment on the corrupt and failed institutions. It was of great concern to the SARCPL, but it was reasoned that one cannot try to drive a constitutional amendment or legislation forward while assuming that the institutions will fail – legislation must be drafted in a way to aid these institutions, make them more accountable, and ensure that, for instance, when zero compensation is paid, this decision is justified and furnished with reasons.

Mr V Xaba (ANC) requested an answer to a question which he picked during the public hearings – namely, why cannot expropriation without compensation be made the default position, with the burden of proof shifted to the affected party to justify why, in their case, circumstances exist for compensation to be paid, taking into account all of the section 25(3) factors?

Dr M Ndlozi (EFF) asked which parts of South Africa’s land were not colonially dispossessed, such that they should be exempt from the principle of expropriation without compensation, given that this historical injustice is what is trying to be resolved?

Mr F Shivambu (EFF) asked what the view of the SARCPL was on section 25(7), which speaks to the 1913 cut-off date. He also asked the Chairperson to explain the selection criteria in relation to the group of presenters for the present meeting.

Responses by the SARCPL

Prof du Plessis explained that expropriation is a very invasive state power – the State is given a lot of power to take someone’s property. While there are no positive rights to property in South Africa – nobody has a right to own property – there are constitutional safeguards against the State arbitrarily taking away one’s property, not doing it except in terms of a law of general application, or, in the case of expropriation, not doing it unless for a public purpose or to serve the interests of the public against payment of compensation.

In terms of its proposals, the SARCPL is not only thinking about white farmers or rich landowners – communities are also considered, with studies showing that the poorer people are the ones who are most vulnerable to State expropriation because their properties are more affordable in relation to State projects. It would thus be unfair to shift the onus to landowners to prove that compensation should be awarded.

It is possible for the onus to be shifted, however – the current Expropriation Act provides that, in some instances, the landowner must determine whether compensation should be awarded, and submit an offer of expropriation. There is a lot of conversation about whether this is fair in the context of the Expropriation Bill, given that rights in land can also be expropriated.

Regarding the sections of land that were not colonially dispossessed, she stated that everyone would agree in regarding colonial dispossession as a great and widespread injustice. It is shown in the Presidential Panel Report on Land Reform in Agriculture that about 60% of land was transferred after 1994 – when South Africa had adopted a constitutional dispensation.

The SARCPL often has conversations about whether an unjust law is a law at all, and whether any action that happened under an unjust law could be seen as a valid action, specifically in this case, whether the transactions that took place in the past were valid. Given that 60% of land was transferred after 1994, it would be difficult to see how a blanket zero rand compensation payment would be justified.

Regarding the 1913 cut-off date, Prof du Plessis stated that it could be surpassed in certain circumstances, citing the Richtersveld case. By reading the history of the making of both the Interim Constitution and the final Constitution, it becomes clear that the 1913 cut-off date was a fairly pragmatic decision – it is quite difficult to prove who owned the land before 1913 in some instances, and there is also the issue of overlapping claims to the land.

She also believed the 1913 cut-off date to be a pragmatic decision and highlighted the call to complete the redistribution process.

Further discussion
The Chairperson commented that, during his ten-year period as a senior law lecturer at UNISA, the faculty used to publish a magazine wherein it would criticise judicial judgements and make suggestions accordingly. Currently, the Constitutional Court halted the processing of new claims. This allowed developers to develop pieces of land that are subject to claims, and later, when people claim their rights thereto, the situations would be difficult to handle. He asked Prof du Plessis whether, being a team of researchers, the SARCPL is looking at these judgements and their implications. For instance, in answering Mr Shivambu, Prof du Plessis said that, in terms of section 25(7), there will be a problem with overlapping claims to land. Has the SARCPL conducted research to establish whether or not this is true?

Mr Shivambu stated that his question was simple – what is Prof du Plessis’ view on whether 25(7) should be deleted or not? He did not ask for the history of the section. He stated that it is known that the section was a sell-out put into the Constitution during the negotiation process.

He asked his question again, requesting that Prof du Plessis abstain from waffling.

The Chairperson said he refrained from using the same terminology as Mr Shivambu but stated that there were so-called “confidence-building mechanisms” implemented during the negotiation process to ensure that negotiations ran smoothly, with some pragmatic decisions being made. The current process which this Committee is engaged in offers it an opportunity to review those provisions and amend them where necessary.

He asked Prof du Plessis to provide clarity on these follow-up questions.

Prof du Plessis responded with the proviso that the SARCPL’s understanding of the mandate of this Committee was to make explicit what is implicit in the Constitution as far as compensation is concerned – this was what the bulk of its conversation was focused on.

In response to the Chairperson, she stated that the SARCPL regularly criticises court judgements and tries to provide alternative views or theoretically sound ways of going forward.

She clarified that the LAMOSA case concerned a community that came to the court and said that they had rights and claims to land that were not yet processed. The Court re-opened the claims, and during that process, new claims were made in relation to the land, and the Court did not have any mechanisms in place to determine how it would deal with the old claims, or how it would handle the conflicting claims. The Court declared the legislation invalid and sent it back to Parliament to devise mechanisms establishing how these kinds of situations would be dealt with.

In that sense, she believes the judgement was correct to the extent that it determined that there was no mechanism built into the Amendment Act which states how such claims would be dealt with.

In response to Mr Shivambu, she stated again that the focus of the SARCPL’s submission was on the Draft 18th Amendment Bill that was published, and its understanding was that the submission should be limited to making explicit was is implicit. As a group, the SARCPL does not have a specific opinion on the 1913 cut-off date.

In her personal capacity, Prof du Plessis stated that she had not really thought about it, but understands the pragmatic reasons for its implementation. Prof Cheryl Walker helped the SARCPL to compile the submission, while also giving the SARCPL great insight into the difficulty of the restitution process and making it clear that a more nuanced and comprehensive conversation on this topic must be held.

Presentation by the Department of Public Works and Infrastructure
Mr Imtiaz Fazel, Acting Director-General, Department of Public Works and Infrastructure (DPWI), introduced the Department’s delegation and stated how the Department’s submission would be presented.

Mr Shivambu asked whether the Department would be presenting, or whether it had hired lawyers to give it legal advice, with that legal advice now being presented.

The Chairperson stated that Mr Shivambu’s question was pertinent because the Committee expected the Department to address the challenges that were raised during public hearings, and oral and written submissions.

Mr Fazel explained that Adv Naidoo works for the Department and is one of the lawyers who assisted the Department with the amendment of the Expropriation Act.

Mr Devan Pillay, Chief Director: Expanded Public Works Programme, DPWI, explained that, essentially, Adv Naidoo was assisting the Department with the Expropriation Bill. There was an engagement for the purpose of looking at section 25 and the proposed Draft Amendment. In summary, there is concurrence and alignment – the Department ensured that section 12 of the Expropriation Bill, which allows for zero compensation, is effectively aligned with the proposed intended amendment to section 25.

Adv Naidoo was chosen to present on behalf of the Department, with the hope that the Department would be more articulate from a legal perspective. The entire team from the Department dealing with this matter is present and able to respond to any queries or questions that may arise.

Discussion on whether the presentation should be allowed
Mr Shivambu requested clarity on the actual relationship between AdvNaidoo and the Department. He noted that the Department claimed Adv Naidoo worked for it, but the submission made by the Department showed that the submission was assigned to Adv Naidoo from the chambers and submitted to the Committee in response. Adv Naidoo is an assigned advocate, and not someone on the payroll of the DPWI.

He reasoned that the Department sought legal advice on the present matter and was so impressed with the advice it was given that it wanted the Advocate to present it to the Committee himself. The Committee was able to receive legal advice in the same way, independently. It was correctly stated by the Chairperson the previous day, that if the Committee were to speak to 100 different lawyers, there is a possibility that it would receive 100 different perspectives. There must be clarity between the views of the Department and the views of lawyers hired by the Department – the Committee must know which opinion they are listening to.

Dr Ndlozi proposed that, if the presenters are merely consultants, the presentation must not be allowed to proceed. The Committee cannot be seen to be approving an indirect submission by lawyers masquerading as the Department. The Department must do the work which it is paid to do, and the Committee did not want to hear presentations made by consultants.

The Chairperson commented that his view was different to that of Dr Ndlozi. It may be that the Department did not understand what it was supposed to present to the Committee. It can be seen that the Department’s version of section 12 of the Expropriation Bill already incorporates zero compensation, meaning the Department has been doing the work that is supposed to be done by the Committee – this Ad Hoc Committee must decide at some point whether to choose zero compensation or expropriation without compensation.

The Department should be given the benefit of the doubt because it is possible that it misunderstood the mandate – the Committee should hear what the Department has to say, and then decide, when the Committee meets on its own, whether the input is relevant to the Committee or not.

Ms K Mahlatsi (ANC) proposed that the Committee should first establish whether the Department takes total responsibility and ownership of the presentation. If the Department does take total ownership, the presentation should be allowed to continue.

Mr Xaba agreed with Ms Mahlatsi. This is also not the first time a lawyer was to make a presentation on behalf of a department, and the Committee should not depart from this precedent and make an exception in the present meeting. It is upon Members when they convene as this Committee to decide what to make of the presentations submitted before them. Once the Committee receives the assurance by the Department, the advocate should be allowed to proceed on behalf of his client.

The Chairperson stated that the comments made by Mr Xaba were helpful in that they reminded the Committee of the precedent established, in terms of which advocates were allowed to present on behalf of their clients.

The Committee should reserve its judgement for when it meets on its own – even if the Department associates itself with the views of Advocate Naidoo, this association could be for the sake of convenience. However, this should not concern the Committee at this stage, and when the Committee convenes on its own it will evaluate the merits and demerits of the submission to decide whether the Department failed in its present duty. The cart should not be put before the horse.

Mr Shivambu argued that the context of the other advocates presenting on behalf of their clients was different – those advocates presented on behalf of organisations and NGOs – presently, an advocate would be presenting on behalf of a governmental department.

The Department must remember the situation which it has been dealing with – the DPWI and the Portfolio Committee on Public Works and Infrastructure are running a process which is wholly dependent on the deliberations taking place in the Ad Hoc Committee. These entities are trying to advance the legislative framework which is supposed to be preceded by the work done by the Ad Hoc Committee.

The Chairperson explained that Mr Shivambu is correct. This matter had been raised the day before – the Expropriation Bill brought by the DPWI is an enabling legislation for the implementation of a constitutional provision, but this Ad Hoc Committee had not yet finalised the amendment of the Constitution. What then, informed the DPWI’s Expropriation Bill? In order to address this question, the Department should be allowed to present, but it should bear in mind that the Committee does not simply want to listen to a legal opinion – it wants to listen to the Department’s experience and challenges, and responses to these challenges.

Dr Ndlozi said he highly doubted that the presentation submitted would address the challenges mentioned by the Chairperson. The presentation seems like it would simply provide an opinion on the amendments, similar to what the Committee had been receiving from NGOs and churches et cetera. If this is the case, which would be in line with the presence of a consultant, it would be unwise for the Committee to hear the presentation. The Chairperson could assist the Committee by asking the Department outright what the presentation would address.

The Chairperson stated that the Committee should assume in the Department’s favour – that the challenges would be addressed. If the Committee proceeds with Dr Ndlozi’s proposal, it might prejudice other Members who may not share Dr Ndlozi’s view, and the Committee would not be able to advance proceedings. The presentation should be allowed, with judgements made in response.

Ms T Mbabama (DA) thanked the Chairperson for stopping the undemocratic process that was taking over the meeting.

Mr P Moroatshehla (ANC) commented that the DPWI, like any other body presenting to a Committee, should have 15 minutes or so to present their story. It is only fair that the Committee listens to this presentation, and based on the presentation, judge whether it was relevant or not, arranging for follow-up presentations in the future. It would not be fair to judge and rule out the Department before its presentation had been made.

The Chairperson agreed with Mr Moroatshehla.

Dr Ndlozi explained that, given the fact that Members received the DPWI’s presentation beforehand and can see the contents thereof, he was not pre-judging. The presentation that was sent showed that an opinion on the wording of the Amendment Bill would be given. On those grounds, the Department should be released.

The Chairperson stated that the precedent requires the Committee to be consistent in its approach in dealing with these matters. Because all Members do not share the opinion of Dr Ndlozi, and because of the precedent in allowing advocates to present on behalf of their clients, the DPWI’s presentation should be allowed for the sake of consistency and fairness. It is a prerogative of the Committee to decide on the relevance of the presentation when it convenes in the future.

The presentation by the DPWI
Adv Uday Naidoo then took the Committee through the presentation.

He explained that he intended to address the legal aspects covered in the opinion, and that there were a few additional matters that he, with the benefit of reflection, would also like to address. He was told by Mr Pillay that the Department would make a short presentation on the challenges that it had been facing after his own presentation.

Adv Naidoo had eight critiques in response to the proposed amendments, and he determined two potential solutions which may address the critiques which he raised.

-In subsection (3) of section 25 in the amended form, the words ‘as contemplated in section 2(b)’ have been inserted after the word ‘compensation’. This is an unnecessary addition.

-The purpose of this amendment is to clarify what is already implicit. The proposed wording would have the effect of necessarily implying that compensation in the amount of nil rand, for expropriation of land other than for land reform purposes, might not competently be nil.

-The anatomy of section 25 needs to be respected. Subsection (2) deals with the conditions for the exercise of the power to expropriate – it may only be for public purpose or in the public interest, and subject to compensation. The Constitutional Court in the Haffejee case found that the amount of compensation need not be determined prior to a decision to expropriate, and that it is not a precondition for expropriation, but in general it ought to be determined beforehand to be consistent with the interests of what is just and equitable. The addition of the proviso may have the unintended consequence of constraining the elastic language of subsection (3). The proviso is in any event out of the natural sequence in which the elements of the property clause appear.

-The style of the proviso does not fit with the remainder of the Constitution – the language is anachronistic and generally not in accordance with the principles of plain language.

-The proviso in subsection (2)(b) deals with quantification, which more appropriately belongs in subsection (3). It also leaves the question of quantification, ultimately, in the hands of the courts, which does not fit with the earlier part of subsection (2)(b) that enables members of the public or those who are expropriated to agree with the expropriating authority on an amount of compensation, provided that it is just and equitable. The effect of the proviso is to unwittingly preclude agreement on an amount of compensation being nil in this case, as just and equitable compensation for land expropriated for land reform purposes.

-The qualification to the word ‘payment’ in subsection (3) – the addition of the adjective ‘any’ – is misplaced. The question is not whether any payment is going to be made – the question is whether the amount of compensation is going to be nil.

-Subsection (3A) envisages the creation of subsidiary legislation in order to give effect to this particular provision of the Constitution – it would follow that, if such legislation is not enacted, it would not be possible to give effect to operationalise subsection (3A), so that compensation for an amount of nil would never be possible unless the subsidiary legislation exists. (View the presentation for further detail.)

The presentation was halted by the Chairperson.

The Chairperson asked whether Adv Naidoo agreed that his presentation usurped the role of the Ad Hoc Committee by putting the cart before the horse, given that this Ad Hoc Committee had not finalised the amendment. Should the Committee not be briefed on the challenges faced by the Department instead of this premature work?

Adv Naidoo noted the point made by the Chairperson. He stated that the instruction given to him was to comment specifically on the Bill, and the proposals that it seeks to make. He suggested that if his recommendations or comments are premature, they be made again at a later stage, subject to the Committee’s approval.

The Chairperson stated that Adv Naidoo’s proposals would be postponed and requested that the Department present the challenges which it faces.

Mr Pillay explained that the intention behind Adv Naidoo’s presentation was to ensure that there is direct link between the section 25 amendments and the Expropriation Bill. Because the section 25 amendment gives effect to the Expropriation Bill, the Department wanted to make sure that it did not face any challenges in terms of implementation.

He described some of the challenges faced by the Department in this regard. When the Department went out on public comment on the Expropriation Bill, it received around 50 000 written inputs, the majority of which were opposed to the Bill. There was a view that there should not be any amendment, and that there is no need for the legislation.

The Department is making explicit what is implicit in the Constitution. Regarding the drafting of section 12(3) of the Expropriation Bill, which gives effect to the nil compensation, the difficulties which the Department experienced were largely in terms of responding to the comments received. From a technical perspective, the Department was very comfortable with the draft which it established. The Department was confident that it will be able to give effect to it, and to give effect to the intent of the amendment.

The Department did not really foresee any challenges in terms of the drafting – the only challenge may be in dealing with technical interpretations and the cleaning up of, for example, excessive cross-referencing that maybe become more difficult to interpret, in order to allow for greater interpretation.

The Chairperson stated that, with respect, the Department was not helping the Committee. There is a consensus that enabling legislation must be based on the Constitution. If the Committee is in the process of amending the Constitution – with this process not yet having reached finality – how can the Department establish enabling legislation based on something that is uncertain?

Mr Shivambu was disgruntled with the manner in which this person [Mr Pillay] spoke to the Committee – stating that this person [Mr Pillay] was speaking to the Committee as if Members were children. This person [Mr Pillay] was telling the Committee what to do as if it did not know what it was doing. The Department is engaged in a parliamentary process with the Committee, and yet the Committee is being disrespected.

The Chairperson requested that Mr Shivambu rather draw the matter to his attention. Mr Shivambu must also not shout at people. He then asked who the person is that Mr Shivambu was referring to.

Mr Shivambu stated that he was referring to Mr Pillay. Mr Pillay stated that the Committee must not amend the Constitution, and that the Committee must be subjected to what the DPWI was doing at a departmental level. He stated that Mr Pillay was suggesting that in the almost three-year duration of this process, the Committee had not been doing its work.

The Chairperson stated that Members must accept that the Act which the Department sought to amend is a 1975 Act passed under apartheid. It was unfortunate that the Department’s process now runs concurrently with the Ad Hoc Committee’s process – this is irregular because this Committee’s process must be concluded first in order to inform the Department’s process. Legally, it cannot be otherwise.

Ms Mahlatsi was disappointed by the DPWI’s presentation. She said she was not sure whether the DPWI was improperly briefed in terms of what they needed to present. The DPWI jumped the gun during its first presentation, and in the second presentation it does not address the challenges in relation to its own public participation process. What was the Department’s brief in relation to this particular meeting?

Dr Ndlozi commented that he told the Chairperson that this incident would happen, but the Chairperson did not heed his warning. The Committee did not receive any presentation which spoke to what the Chairperson wanted the Department to address – the Department was always going to present the same legal opinion which was sent to the Committee prior to the meeting.

The Chairperson stated that Dr Ndlozi was vindicated, but that it would have been premature to agree with his suggestion before hearing the presentations. He agreed that the Department must inform the Committee what its mandate was in relation to this meeting.

Mr Moroatshehla stated that the Committee did not do anything wrong – it listened to the DPWI’s presentation and came to the conclusion that the presentation was not what was expected from the Department, and the Department should be dismissed accordingly.

The Chairperson stated that the Committee should not be harsh towards the Department – the Department may have received an incorrect briefing and should be given the benefit of the doubt. The Department should be released, and the Committee will decide as to the follow-up process regarding this matter. The Committee cannot waste its time listening to something that is irrelevant.

Mr Shivambu stated that the Committee contributed to the wasteful expenditure of State funds by allowing the DPWI to hire an advocate and have him present to this Committee.

The Chairperson asked Mr Xaba if he agreed that the Committee was fair and consistent by following the precedent and allowing the DPWI to present, but that, given the fact its presentation was irrelevant, the DPWI should be released.

Mr Xaba agreed with the Chairperson that the Committee followed the correct procedure. The issue of content or substance is a separate issue that was not being commented on presently.

The Chairperson explained the conclusion reached by the Committee regarding the DPWI’s presentation, and the Department was released accordingly.

Adv Naidoo referred the Committee to the letter which he received on 15 March 2021 inviting Minister de Lille to comment on the Bill. There was nothing further in that invitation to indicate that the Department would be required to present facts on the challenges that it would face. This was the only documentation that he received as part of his instruction.

Presentation by the Department of Agriculture, Land Reform and Rural Development (DALRRD)
The advocate leading the Department’s delegation introduced the Department and explained why the Director-General of the Department was not present in the meeting – it appeared that the DALRRD received the same problematic invitation as the DPWI, and the advocate was sent instead of the Director-General given his responsibility as the developer and drafter of legislation. The delegation present would thus be likely to speak on the Draft Bill, and not on the challenges or programmes of the Department.

The Chairperson commented that the High-Level Panel Report was very critical of the processes of land reform in the DALRRD – during the public hearings, people were accusing the Department of being incompetent. The previous day, the Committee was told that the Minister believed the DALRRD does not have the capacity to perform its duties.

In relation to the issue of expropriating land, one critical issue which arises is where the land should go. One school of thought says that it should go to the State. Given that the State is said to be incompetent and lacking capacity, how will Parliament be able to say that more land should be given to the State, which is incapable of discharging its functions?

It is for this reason that the Committee expected the Department to deal with the issues it is facing, and also to describe the remedies it was adopting in response – not duplicate the work of the Committee on the Draft Bill.

A Committee Secretary explained that the DPWI and the DALRRD were invited by the Committee in terms of rule 275(b), which provides that the Committee must give the relevant organ of State in the national sphere of government sufficient opportunity to make submissions to the Committee. The Departments were invited to make submissions on the Bill, which explains why the presentations by the Departments address the contents of the Bill and not the challenges which they are facing.

The Chairperson stated that this clarification assists the Committee greatly. The Departments were invited in terms of rule 275(b) to comment on the Bill. However, as the Chairperson said in his opening remarks, many challenges have been raised and the Committee expected that the Departments would address these challenges – these responses would inform the Committee’s process.

He asked Members how the Committee should deal with the situation, because it was clear that the Departments were given a brief that did not require them to address their challenges. There were no faults in either Department’s administration.

Mr Moroatshehla stated that the Committee should take the blame for the present situation. The brief that was given to the Departments was not adequate enough for the responses thereto to assist this Committee.

Given that the Committee is equally to blame, he proposed that the Committee pardon and release the DALRRD since it informed the Committee that its presentation would be similar to that of the DPWI. The Committee should continue to convene in order to correct the brief, and the Departments should be invited to present again in line with the corrected brief.

Mr Shivambu stated that the Departments who were present in the meeting are responsible for a significant portion of State land and property. In terms of distributing the land on a leasehold basis, or as part of the redistribution process, it was only rational that, in presentations submitted by the DPWI and DALRRD, the Departments provide a comprehensive update of what has been done in terms of land management and property management processes undertaken by the Departments, in relation to the land which is legislatively under their control. The Departments should also be given an opportunity to respond to the allegations of incompetency, recklessness and corruption that is associated with them, in relation to the management of state property. It was not appropriate for government, when Parliament is enacting legislation, particularly when Parliament has already reached an agreement regarding an aspect of the legislation – in this case, that there must be expropriation of land without compensation – to come to Parliament and try to explain that Parliament was incorrect in reaching that agreement. Why should Parliament listen to governmental departments who hire their own legal advisors to try and explain that 81% of Members were incorrect? Parliament deliberates and allows for members of society and other role players to make submissions. This was a well-established process. Governmental legal advisors should not be allowed to attempt to delegitimise an existing parliamentary agreement which was consolidated over a long period of time, including over 100 public hearings and a significant number of written submissions. Parliament does not want to be taken back to square one by government as if there had never been a consensus.

Ms Mbabama was of the opinion that the Committee was following the National Assembly process. The Departments and other entities were invited based on a National Assembly rule. She did not understand why Members were arguing and believed that the DPWI was wrongly dismissed – it was correctly presenting based on a National Assembly rule.

Dr C Mulder (FF+) commented that there was in fact no consensus in terms of the parliamentary agreement referred to by Mr Shivambu – there is a majority view but not consensus. The Committee must stick to the rules of Parliament, and it is obvious that it must consult with the Departments that are directly involved in whatever process comes out of this Committee’s work. He suggested that, before the Committee can complete its process, the Committee gives an exact instruction to those departments, detailing what it expects from them. The Committee should schedule these opportunities, listen to the departments, and then proceed with its process.

The Chairperson explained that the Committee should agree that the brief was correctly done by the administration in terms of National Assembly rules, but Members of this Committee could not ignore what came out of the oral and written submissions, which blamed the Departments for mismanagement, incompetency and corruption.

It would not be fair for the Committee to conclude this process without hearing from the departments on those allegations, and therefore, one cannot necessarily blame the Committee for this situation. However, after listening to the all the presentations, it is clear that the brief should in fact have been wider in scope than rule 275(b).

The departments should be consulted with and given an opportunity to present a comprehensive report on these matters. It would perhaps not be appropriate to say that the departments were dismissed, but it would also have been a waste of Members’ time to listen to presentations which would not assist the Committee in its process – the Expropriation Bill cannot precede the amendment of the Constitution.

The Department of Justice and the Department of Mineral Resources and Energy cannot give the Committee an open-ended statement saying that they will present in the future – the Committee has scheduled dates in response to its problem, and these departments must present in line with this programme to ensure that the Committee is able to accomplish its duties.

Mr Shivambu suggested that the DPWI be informed that their process of amending the Expropriation Bill should be halted until this Committee finalises the amendment of the Constitution, given that the Expropriation Bill must be aligned with the Constitution.

The Chairperson stated that he would first consult with the Chairperson of the Portfolio Committee on Public Works – Ms N Ntobongwana (ANC) – because she was a Member of the Ad Hoc Committee.

The Chairperson stated that he would work with the Committee Secretaries to establish dates for the consultations with the various departments. It was important that these departments appear before the Committee so that their views could be heard, and the Committee’s process advanced. These consultations would not interfere with the Committee’s programme.

He thanked Members for their constructive contributions and their vigilance

The meeting was adjourned.


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