Response to input by Departments: OCLS briefing; DA Correspondence

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Meeting Summary

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

Section 25 Review Process

Hansard: Expropriation of Land without Compensation

Motion: Expropriation of Land without Compensation

09 Apr 2021 Draft Constitution Eighteenth Amendment Bill: DPWI, DMRE & DoJCD input; with Ministers
31 Mar 2021 Constitution 18th Amendment Bill: Parliament Legal Services & DALRRD input, with Minister

The Ad Hoc Committee amending section 25 of the Constitution convened a virtual meeting for a briefing by the Parliamentary Legal Services (PLS) and to adopt a set of outstanding minutes. The finalisation of both items was a prerequisite for deliberations on the Draft Constitution Eighteenth Amendment Bill scheduled for the following week.

The briefing by PLS dealt with responses to inputs from the Departments of Agriculture, Land Reform and Rural Development (DALRRD), Public Works (DPW), Mineral Resources and Energy (DMRE) and Justice and Constitutional Development (DoJ&CD). The major concern emanating from the submissions related to the role of the Courts on the issue of expropriation where compensation may be nil. The matter would form part of the deliberations.

The Economic Freedom Fighters (EFF) held the view that the process should not be divorced from its genesis. The resolution proposed by the EFF in February 2018 stipulated amongst others, the review of section 25 of the Constitution through public hearings, expropriation of land without compensation and the state becoming the custodian of all land. It questioned why the issue of land expropriation could not be discussed and which land would be available for expropriation if subsection (7) could not be deleted. The party argued that the process had been hijacked if the resolution differed from these proposals.

The ANC pointed out that even though the resolution was moved by the EFF, it was amended substantially thereafter.  

The FF+ reminded members they were bound by the resolution of the House. Subsection (7) dealt with a different principle that was not included in the mandate from the House.

Members were advised to consult with the principals of their parties before the Committee started engaging on the proposed amendment of the text.

Concerns were raised about a complaint that the Democratic Alliance (DA) reported to the Speaker of the National Assembly instead of addressing the matter internally with their colleagues. After fierce engagement on the matter, it was resolved that the Speaker would be allowed to deal with the matter.

Meeting report

The Chairperson stated the three items on the agenda:  adoption of minutes, presentation by Parliamentary Legal Services (PLS) and correspondence.

He said this was the last meeting before the engagement with the proposed text of the amendment. It was important to recall the agreement. He advised that members should consult with the principals of their parties so that everybody was ready for the deliberations the following week. The minutes were not dealing with substantive issues and should not delay the process. No one should be marked absent when they were present.

Prof A Lotriet (DA) said Adv G Breytenbach (DA) was attending a Portfolio Committee on Justice meeting and apologised for not being available to join this meeting.

She added that, although it was agreed in the last meeting that permitted oral presentations should be added as annexures, she did not receive the consolidated report.

The Chairperson asked Adv Pilate Gwebu, Committee Secretary, to comment on the matter of the distribution of the consolidated report.

Adv Gwebu referred the matter for comment to Dr Thulisile Ganyaza-Twalo, Committee Unit Manager, who dealt with the actual report.

Dr Ganyaza-Twalo replied that the presentations were in different formats. She had requested but did not get the assistance from the IT Department to consolidate the report. She subsequently created links of all presentations received by the Committee and attached it to the report. The report was still to be published later that day.

The Chairperson thanked Dr Ganyaza-Twalo for her efforts and gave her the go-ahead to circulate the consolidated report.

Adv Gwebu asked for confirmation that the minutes had been distributed.

The Chairperson confirmed that the minutes were distributed and asked Adv Gwebu to flight the minutes. He considered the minutes as read as it had been circulated.

Advocate Gwebu notified the members that the minutes would not be flighted in chronological order.

Adoption of Minutes

The minutes below were adopted after the errors identified by members, were corrected.

Minutes dated 2 November 2020
No errors were identified.

Minutes dated 5 March 2021
No errors were identified.

Minutes dated 9 April 2021
No errors were identified.

Minutes dated 10 February 2021
Ms N Ntobongwana (ANC) asked that her name be added as an attendee as she was present in this meeting.

Mr F Shivambu (EFF) said he did not have copies of the minutes and wanted to know when the minutes were sent to members. He also did not have communications reflecting that the adoption of the minutes was on the agenda.

The Chairperson replied that the minutes were sent but it would be flighted if Mr Shivambu did not receive it.

Mr Shivambu said the notice he received made no mention that the approval of minutes was on the agenda. He did not get an opportunity to view the minutes. Should issues come to light, he would raise it at a later stage.

The Chairperson noted Mr Shivambu’s comments and conceded that the notice wrongly stated that deliberation on the Bill was on the agenda.

Mr S Gumede (ANC) requested that the Committee make it a principal position to flight the agenda at the start of a meeting so that all the members were aware of what would be discussed. This was the second attempt at adopting the minutes. Last time the adoption was deferred. It would be unfortunate if some members did not participate on that day and if the agenda for this meeting did not reflect what members anticipated to be discussed.

The Chairperson replied that flighting the agenda was standard procedure. He explained that Advocate Vhonani Ramaano, who he normally worked with, had been called to attend the Portfolio Committee on Justice meeting. Adv Gwebu, who was standing in for Advocate Ramaano, was not involved in setting the agenda, hence the confusion.

Mr Shivambu said the problem with the notice was a substantial issue. Members were under the impression that the deliberation of the report was on the agenda only to be frog-marched into adopting minutes that had not been discussed.

Ms R Lesoma (ANC) said she received an e-mail with the notice of the meeting and two attachments. Her information agreed with the agenda of the Chairperson but she noticed that the names of some members were missing from the mailing list. She asked the administrative staff to check the mailing list for completeness.

Mr V Xaba (ANC) wished to confirm receipt of the notice as stated by the Chairperson. According to him, Mr Shivambu’s name was on the mailing list, so he should have received it, unless it was not the correct e-mail address.

The Chairperson said the position was that members were given until 3 April 2021 to consult. He wished to proceed with the programme but could not to do so without adopting the minutes and the presentation by the PLS. The minutes were not dealing with substantive issues. He asked whether members wanted to delay the real mandate because of the minutes and if the adoption of the minutes should be postponed. He was available to flight the minutes in order for members to read it.

Mr Shivambu conceded that the process to adopt the minutes should proceed. He would raise fundamental issues, should it arise.

The Chairperson commended Mr Shivambu for being helpful.

Minutes dated 12 February 2021
No errors were identified.

Minutes dated 12 March 2021
Ms Lesoma asked that her name be added as an attendee as she was present in this meeting.

Minutes dated 19 February 2021
No errors were identified.

Minutes dated 23 March 2021
No errors were identified.

Minutes dated 24 March 2021
No errors were identified.

Minutes dated 25 March 2021
Ms K Mahlatsi (ANC) noted that her name was incorrectly listed under apologies and asked that her name be added as an attendee.

Minutes dated 26 February 2021
No errors were identified.

Minutes dated 27 November 2019
No errors were identified.

Minutes dated 31 March 2021
No errors were identified.

Minutes dated 3 December 2019
No errors were identified.
Minutes dated 5 December 2019
No errors were identified.

After checking her records, Ms Lesoma confirmed that she was not in attendance at the meeting of 12 March 2021 and asked that her earlier request be reversed.

Parliamentary Legal Services Presentation
Adv Charmaine van der Merwe, Senior Legal Advisor, Office of Constitutional, and Legal Services, stated that if you put 100 lawyers under one roof, you would get 100 opinions. The purpose of the presentation was not to agree or disagree with the opinion of the PLS staff. Parties had different opinions from their own lawyers and therefore the text would differ. She wanted to alert members that in terms of rule 275 of the National Assembly rules, the Committee must grant sufficient opportunity for submissions. Four departments were given the opportunity to talk to the Committee. The PLS staff reviewed both oral and written submissions.

Input from the Department of Agriculture, Land Reform and Rural Development
Role of the Executive vs that of the Courts
The concern was raised that the courts might be the first port of call on the issue of no compensation. The PLS response to the proposed amendment was that the state was the initial decision maker and the courts act as a safety valve. The courts would have serious backlogs if every case were to be referred to the courts. The PLS recommended that an amendment to this effect be made unless the Committee decided that the courts should be the only decision maker. An instruction was requested from the Committee.

Include a definition for land reform
The definition in section 25(4)(c) should read: “land reform includes but is not limited to restitution, redistribution and land tenure. The PLS recommended that a definition can be included and must be advertised. An instruction was requested from the Committee.

Circumstances for nil compensation to be contained in national legislation
Three different options were expressed in public submissions. The PLS requested an instruction from the Committee to amend or not to amend subsection (3A).

Input from the Department of Public Works
The wording of the Bill limits expropriation for nil compensation to land and improvements thereon
To include all property was a policy decision. An instruction was requested from the Committee.
The role of the Courts
The response to the DALRRD was applicable.

Amending by way of a proviso, renders subsection (8) logically problematic
The input from DPW did not have merit.

Placement of the amendment
The PLS had concerns regarding the wording proposed by the DPW. The wording might need slight tweaks. An instruction was requested from the Committee.

The words “as contemplated in subsection (2)(b)” in subsection (3)
The link between the proviso in (2)(b) and subsection (3) was not clear enough. The link must be clearly expressed for the public. An instruction was requested from the Committee.

“Any payment” in subsection (3)
The word “any” does not need an amendment.

Subsection (3A) is not limited to land expropriated for land reform purposes
The subsection can be amended to read “may” but it must be advertised.

No legal comments or questions were raised by the DMRE and the DoJ&CD.

(See Presentation)

The Chairperson clarified that the purpose of the discussion was not to deal with the Bill. He invited the members to comment on the responses from PLS on matters that transpired from sessions held with the various departments.

Mr Xaba asked whether PLS had a process in mind to deal with the new clause that did not appear in the draft Bill and that needed to be advertised.

Mr Shivambu queried the scope of the briefing. He wanted to understand the role of PLS in the process. In most instances, PLS did not appear to be helpful. He said their role may be clarified in response to the following question: “Are we going to delete subsection (7)?” He explained that when the establishment of the Constitutional Review Committee was initially resolved, it was agreed that the issue of custodianship and land claims must form part of the process. He wanted to know where in the Bill this aspect would be dealt with. Parliament mandated the Committee to deal with this matter but it appeared to him that the Committee was busy with something other than what Parliament mandated it to deal with in this process. He would raise his view of this legal office based on the response.

In response to Mr Xaba, Adv van der Merwe explained that the first call for comments on the Bill was normally quite a big exercise. The second call for comments was more specific. Only new substantive changes must be advertised. Further public hearings were held only if anything was unclear. The number of people that wanted to address the Committee was smaller and the process therefore required less time. Responding to the issue raised by Mr Shivambu, she stated that the resolution by the National Assembly did not include matters relating to subsection (7) and that information delivered to the Committee was based on instructions.

Mr Shivambu replied that the original mandate dealt with the issue of subsection (7). He said if the approach was to ignore and not allow deliberation on subsection (7) and the issue of the 1913 Land Act, then the Committee was not busy with the original mandate. He objected to participate in a process that had been hijacked.

The Chairperson requested members to deal with the opinion of PLS instead of specific subsections. He explained that by implication, expropriation of land meant that it must be placed in the care of someone, hence the reference to custodianship.

Ms Lesoma said the Committee’s engagement with PLS in terms of the mandate dealt with the issue of making explicit what was implicit in the Bill. It did not specify any clauses.

Dr C Mulder (FF+) said the different opinions and views must be taken seriously and reminded members they were bound by the resolution of the House. Subsection (7) dealt with a different principle that was not included in the mandate from the House.

Mr Xaba needed clarification on whether advertisements on new wording would be less extensive or whether it depended on the call of the Committee. He asked if it was not expected of the public participation process to analyse the views of the public that was not contained in the published draft bill. He questioned what the purpose of the process was if it did not influence parliamentarians into drafting different proposals than the gazetted proposals, for example, if they suggested a new clause that was not in the published bill. He wanted to know why proposals from the public were not accepted as a product of the public participation process. He said the resolution was broader than what Dr Mulder was stating. Although the resolution mandated the Committee to make explicit what was implicit in the Constitution, it was meant to address historic wrongs.

The Chairperson reminded the members that the published bill was a compromised bill and that not all parties had made resolutions.

Prof Lotriet said it was important to clarify and not to exceed the boundaries of the mandate. Any proposal to expand the mandate must go back to the National Assembly for approval.

Mr Shivambu held the view that the process should not be divorced from its genesis. The resolution proposed by the EFF in February 2018 stipulated amongst others, the review of section 25 of the Constitution through public hearings, expropriation of land without compensation and the state becoming the custodian of all land. He questioned why the issue of land expropriation could not be discussed and which land would be available for expropriation if subsection (7) could not be deleted. The process had been hijacked if the resolution differed from these proposals. If the historical context was to be considered, subsection (7) must be deleted and if required, the Bill must be sent back. He proposed that the services of the legal officers be discontinued as the Legal Department was undermining the work of the politicians. This was a political process and as representatives of more than 70% of the people, politicians had the right to interrogate their views.

The Chairperson asked that PLS be treated fairly. Parliamentarians were not obliged to agree with the opinions provide by the legal officers. There was no need to cast aspersions and it was too early to fight. The different opinions of all parties would be considered when the scheduled deliberations take place. He asked that the legal officers be allowed to wrap up their opinion.

Adv van der Merwe explained that in terms of subsection (8) of the Expropriation Bill, ownership of the land rested with the state. This remains unchanged in respect of the resolution to make it explicit in section 25 of the Constitution as a legitimate option for land reform. The Committee could ask for further options from the National Assembly or could request an external opinion. In terms of advertisements, she clarified that not every amendment required public participation, especially if it already reflected public opinion. In the Truworths case, for example, the Minister of Trade and Industry was not obliged to re-advertise. Advertisements were not required if the Committee gives effect to public opinion and it did not change the Bill. However, substantial changes for example changing ‘must’ to ‘may’, must be advertised.

Mr Shivambu said the mandate was tabled by politicians and did not need the involvement of parliamentary staff. He argued that there was no science in law. This was a political process and the interpretation of the mandate needed to be done by politicians. The process should not be allowed to be hijacked. Section (7) must be amended and if it was an impediment, it must be deleted.

The Chairperson said PLS was entitled to give an opinion and the integrity of the legal officers should not be questioned. The politicians would deliberate and move forward.

Dr Mulder agreed that members should not question the integrity of legal officers. It was not only a political issue but also a constitutional problem. Section 25 also dealt with property and a balance needed to be struck. It appeared to him that Mr Shivambu was hijacking his own resolution. The second paragraph was not in the mandate of the Committee. The public was asked to give comment in terms of the mandate.

The Chairperson noted that Mr Shivambu and Dr Mulder showed a readiness to debate the Bill but that was not the on the agenda for this meeting.

Mr Xaba agreed that aspersions should not be cast on parliamentary staff who were doing what was humanly possible to assist the process. Politicians had the right to seek alternative advice if they were not satisfied. He warned against using terms such as staff were ‘attempting to hijack the process’. He did not think Mr Shivambu was doing it intentionally. He agreed that the resolution was moved by the EFF but reminded the members that the resolution had since been amended. He was concerned that Mr Shivambu kept referring to the draft motion but ignored the fact that it had been extensively amended. It was correct to refer back to the origins of the resolution so that the Committee gravitate around the mandate. He accepted that advertisements were needed only if substantive amendments were made because it would arise from the public process. This would confirm that it was not merely a tick-box exercise but based on some rethinking. He agreed that the members would return the following week to discuss the process.

Ms Lesoma agreed with the input from Mr Xaba. For the interest of the public, she reiterated that the Committee was not limited to any clause in amending section 25 of the Constitution. She emphasised that the draft Bill was a compromise. Although it might be viewed that the Committee did not want to address the imbalances of the past, she reassured the public that it would be done and in a meticulous manner.

Mr Shivambu requested back office staff to circulate all resolutions and urged the members to read them. Thousands of the submissions referred to the proposal about the state being the custodian of the land. The people already informed the politicians that subsection (7) should be deleted. The entire section 25, i.e. all sections would be dealt with during the deliberations. The limitations that the PLS was attempting to place on the process coincided with the view of right-wing organisations and amounted to an abduction of the process.

Dr Mulder replied that it was a constitutional matter and had nothing to do with right-wing or Marxist ideologies.

Mr Shivambu said he was proud of being labelled as Marxist.

The Chairperson intervened and said in a multiparty democracy, all ideologies had a place and in the end, everyone must work together. Whether some were neo-liberal and others Marxist, the process was about the people of South Africa. He commented that the members appeared to be ready to move to the second phase of dealing with the Bill. The process had a history but it also evolved. The matter was dealt with in the Nasrec conference. He confirmed that the EFF proposal had been amended. He agreed with Mr Shivambu that the resolutions should be circulated so that members could refresh their memories. He added: “our democracy is a process of participation and representation”. Input from the people should not be ignored as it would make the public participation process nonsensical. He agreed with Ms Lesoma that the amendment was not confined to any section and said the discussion provided a good foundation for the deliberation scheduled for the following week.

Mr Shivambu said it would be tragic if the mandate and the public participation process were de-legitimised. The draft Bill should not be reduced but should reflect the input from the people.

The Chairperson agreed that the evolution of the mandate was important. All the issues raised were on the table for the following week’s deliberations.

DA Correspondence
The Chairperson requested Adv Gwebu to flight the DA’s letter to the Speaker, dated 25 March 2021. He explained that the secretariat was requested to bring all correspondence received as he did not intend to sweep anything under the carpet. His approach was that any correspondence must be tabled for consideration by all the members so that it reflected the position of the Committee. He requested the DA to comment on the letter.

Prof Lotriet found it unprocedural and highly inappropriate that a letter addressed to the Speaker was being discussed in the Committee. She was not aware that the Speaker referred the letter to the Chairperson and proposed that the Chairperson address the matter with the Speaker.

The Chairperson replied that the Speaker was not a member of the Committee and that she must know whether the Committee addressed the issue before she expressed her opinion.

Dr Mbabama said the onus was on the Speaker to handle her own investigation as the letter was addressed to her.

Mr Xaba found it strange that the DA would be complaining. In his view, it was an attack on Parliament by Mr Roets (the subject of the letter). The conduct of Mr Roets as a guest was highly irregular and provocative. On that day, he was highly offended by Mr Roets’ comments. He was a guest of the Committee but did not recognise the members. He found it highly unbecoming of the DA to respond to remarks by Mr Roets and not to the comments he made to the Committee. It was correct that the matter was redirected to the Committee. He questioned why the DA kept quiet when Mr Roets was humiliating members of the Committee and why his colleagues did not find it unacceptable. By taking the matter up on his behalf indicated that the DA endorsed the behaviour of Mr Roets.

Dr Mulder asked whether it was correct that the letter had been redirected to the Committee. He was aware that the Speaker had strong views on the matter.

Mr Shivambu replied that it was good that the letter was written. It exposed the racist views and lack of respect from the DA, which he likened to the mandate of the Afrikaner movements.

Dr Mulder attempted to respond but was interrupted by Dr Ndlozi who demanded that he stopped interrupting. “I am not scared of Mulder, Roets and all of you” he retorted angrily.

The Chairperson intervened and asked that he be allowed to handle the matter. He requested Dr Mulder not to interrupt other members when they speak. At this point, Dr Mulder had left the meeting.

Mr Shivambu proposed that the Speaker be allowed to deal with the matter. Mr Roets had a history of being a spoilt brat and deliberately tried to agitate and to be an agent provocateur. According to him, the DA was defending racism.

Ms Lesoma said the members had been taking insults for far too long. The Chairperson would not have had access to the letter if it were not referred to him. She now understood that the DA was the spokesperson of the gentleman who insulted the Committee. To her, the DA was the same as AfriForum. She asked the Chairperson to give the members an opportunity to add their views before he responded to the letter. This was to make sure that nobody was insulted. It was improper for members of the Committee to act as spokesperson of other people.

Dr Ndlozi was satisfied to leave the matter in the hands of the Chairperson. He viewed the issue as a distraction and implored the members to stick to the mandate of the redistribution of land.

Mr Xaba proposed that the Committee recommend to Parliament to bar Mr Roets from appearing before any Committee of Parliament in future.

Dr Mbabama said the DA was not a spokesperson of anybody and was concerned that insults at DA members were being ignored. Discussing the letter without a mandate from the Speaker was premature and unprocedural.

The Chairperson replied that the letter was referred to him and that he was not carrying out an investigation. It was the rule of natural justice not to condone people without hearing their side of the story. All members had full right to participate. The matters in the letter were not raised in the Committee. It was irregular to raise complaints outside the Committee.

Dr Mbabama said she was not aware that the letter was referred to the Chairperson.

The Chairperson replied that a referral could be in different forms.

Prof Lotriet referred the Chairperson to his statement that all correspondence would be distributed. She then requested that not only the letter but also the actual referral from the Speaker also be circulated.

Mr Gumede asked whether the DA was suggesting that the Chairperson stole the letter and questioned who gave the DA the mandate to write on behalf of the Committee. He agreed with Mr Xaba’s suggestion that the gentleman be barred from attending future parliamentary meetings. It was the first time he heard such provocation from anyone who was standing toe-to-toe with the Committee. He agreed with Prof Lotriet that all members listened to the transcripts of what happened on that day.

The Chairperson remarked that he had been in Parliament since 2009 and during this time, he also held the position as Chief Whip of the majority party. He was therefore aware that correspondence addressed to the Speaker would be referred to the Chair-of-Chairs, who in turn would refer it to the relevant Chairperson of the Committee. He was however not aware that such referrals needed to be in writing. He would go back to the Chair-of-Chairs about the written referral matter and would obtain the record of what had happened, i.e. to ascertain whether Mr Roets was rude or if the members were rude. The DA did not reflect this in the complaint.

Regarding the recommendation that Mr Roets be barred, the Chairperson asked why the Committee should give him a platform if he did not recognise the members. In his humble opinion, it was correct that the letter was referred to the Committee as it made unsubstantiated allegations against members. In future, members should raise complaints internally to give other members time for input; that was the democratic way.

In conclusion, the Chairperson requested the legal staff to provide written responses to the issues raised.

The meeting was adjourned.

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