Holistic review of Section 25

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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

The Ad hoc Committee continued its decision to deliberate on the entire section 25 rather than only section 25(2) and (3) as gazetted in the Draft Constitution Eighteenth Amendment Bill. Members pointed to distinctions between deprivation and expropriation as well as nationalisation and state custodianship. Political parties submitted their suggestions on whether each subsection should be amended or remain the same. The Committee agreed that the different stances that arose should be discussed in bilateral engagements between political parties to attempt to reach convergence by 23 May.

The Committee had sought a legal opinion if reviewing the whole of section 25 was still in line with its mandate. It wanted to ascertain if Rule 274 on Draft Bills gave latitude to make amendments beyond the Draft Constitution Eighteenth Amendment Bill that had been through the public participation process. The Chairperson requested that the Committee did not deal with the legal opinion but continue with the holistic approach of going through the entire section 25. After the EFF levelled accusations that there had been an infiltration of the Parliament Legal Services that wanted to hijack the process of land expropriation, the Chairperson said he would receive advice from the Chair of Chairs on the allegations of bias by the EFF against Parliament Legal Services. The Committee decided it would request permission to have meetings more than once a week.

Meeting report

The Chairperson said that in the previous meeting the Members agreed to deal with all of section 25 as a whole. The Committee had started the process but did not conclude it. The discussion that ensued helped the Committee to address some concepts, for example, the distinction between expropriation and deprivation, the relationship between a representative and participative democracy in the process of amending section 25 of the Constitution. Questions had been raised whether the Committee’s holistic approach did not exceed its mandate and it decided to seek legal advice to address that concern. Today the Committee would continue with its subsection by subsection approach and look at the legal opinion to determine if it had exceeded its mandate. The Committee could not delay its work. Political parties were allowed to hold bilateral meetings which should be completed by 23 May. The Committee would continue to identify added items which might have to be included in the bilateral meetings.

Ms A Lotriet (DA) asked if they were proceeding with deliberations on section 25 and only looking at the legal opinion afterwards. She thought that the Committee would start with the legal opinion to see if they were following the right approach or not.

The Chairperson replied that the reason the Committee did not start with the legal opinion was because another legal opinion may say something different and he did not want the Committee to be boxed in by legal opinion. He suggested that the Committee focuses on its work and if it exceeds its mandate, that could be dealt with at a later stage.

Mr P Masipa (DA) said the Committee received the legal opinion from the legal team and the opinion had been with the Committee since the previous week. It would be proper to start with the legal opinion before they went to discussions.

Ms T Mbabama (DA) agreed that they should start with the legal opinion. What was the use of getting a legal opinion if the Committee was not going to listen to what it said and let it influence its work going forward?

Mr C Mulder (FF+) said that he understood that the Chairperson wanted the Committee to continue and see if the political parties had moved closer to one another. The legal opinion was not going to change that. What was stated in the legal opinion remained a legal opinion and the Committee would have to decide if they took it seriously or not. He understood that the Chairperson wanted to proceed the way he proposed, but the logical thing would have been first to look at the legal opinion. If the Chairperson ruled otherwise, they would proceed in that way as the legal opinion would not change.

Ms M Gondwe (DA) agreed that the Committee should first consider the legal opinion before they went further to see what were the parameters they were expected to look at in the amendment of section 25. The legal opinion was important; it deserved to be considered by the Committee before they proceeded.

Mr C Xaba (ANC) said they should not confuse the status of the meeting; the meeting was a continuation of the process they started in the previous meeting. When the Committee adjourned, they were already on Section 25(2) of the Constitution. He agreed with Dr Mulder that the legal opinion remained a legal opinion whether they started or ended with it. He proposed that they deal with the legal opinion at the end. The legal opinion did not speak to the process that the Committee was engaged in at this time. It spoke to when the Committee adopted an amendment that was substantively different from the clauses that were published.

So far, there were no substantive clauses or amendments that were different from the ones published in the Government Gazette. The Committee should not pre-empt the process, they should go through the process. If they came up with anything substantively different from what was in the Gazette, they would then follow the process suggested by the legal opinion. He had no problem following the process that the legal opinion was suggesting. The legal opinion did not stop the Committee from considering section 25 and if they agreed on a new clause which was substantively different, they would follow the process outlined in the legal opinion. He believed all the Members had studied the legal opinion. He had no problem with the legal opinion.

Mr F Shivambu (EFF) said the Committee could not be revolving around the same issue time and again. The Committee had resolved in the previous meeting the question about discussing the entire section 25 and all its subsections. It was not a point for discussion. Why should the Committee revolve around the same issue every meeting? The Committee must proceed and discuss all the subsections. He had not seen the legal opinion. If it was from Parliament, he was suspicious of it. He was not casting aspersions. There had been an infiltration of the Parliament Legal Office that wanted to hijack and distort the process of land expropriation. Was it a coincidence that white political parties were saying the Committee must listen to what the Parliament Legal Office was saying? The process was not independent of class, national character and influences. Everyone had an interest, whether subjective or objective, in the outcomes of the process. Consistently, the guidance to the Committee, even with the draft Bill, was a deliberate attempt to misguide, mislead and misdirect the Members from dealing with substantive issues which were the foundation of the deliberations. The Committee must not be distracted by infiltrations that were being planted in the administration of Parliament. There was a resolution that the Committee was going to discuss section 25 subsection by subsection and present a report to Parliament. If Parliament thought that there was something wrong about the report, Parliament would resolve it in that way. If people wanted to challenge it, they could go to the Constitutional Court. The Committee could not be stuck on the same matter time and again.

Dr Mulder said the problem was that the people who did not read the legal opinion were the ones that were not prepared. Claims had been made on several occasions that Parliament Legal Services had been infiltrated by a Member of Parliament. Those were very serious allegations. Mr Shivambu should state and prove his allegations. The legal opinion the Committee received also referred to a position taken by the National Assembly Table about what the Committee was doing. Mr Shivambu must substantiate his allegations; if he could not, he must withdraw the allegations.

Mr Shivambu said he would substantiate his allegations and he would even write to all the relevant parliamentary bodies to illustrate that they had been infiltrated.

The Chairperson said he had a problem with opinions in general because opinions were attributable to individuals and there were also problems of inferences. Everybody had a right to form an opinion or draw inferences. If the Members used the meeting to debate opinions and inferences, the Committee was not going anywhere.

Mr S Gumede (ANC) seconded the Chairperson's recommendation to start with deliberations on the subsections and then go to the legal opinion. If they continued discussing the subsections, everyone would have instilled their understanding of them and all the subsections would have been deliberated on. By the time they went to the legal opinion, they would know exactly which unnecessary parts they want to cut from the subsections. It would be a very smooth process.

The Chairperson said this was a continuation of the deliberations and they were already discussing section 25(2). Dr Mulder also supported or said that it did not matter if they started with discussions or the legal opinion. The problem was that if the Committee started with the legal opinion and some Members challenged the opinion, either wrongly or rightly, they would be doing a disservice to the process. He ruled that they start with the subclauses and then deal with the legal opinion. Before the Committee dealt with the legal opinion, they also needed to deal with the allegations made against the legal opinion. The Rules said that if a person came up with such allegations, they need to submit a substantive motivation for the allegations. He was not sure that the Committee was the right platform to deal with the question of infiltration.

Dr Mulder said he wanted to clarify his position that the contents of the legal opinion remained the same, they would not change, regardless of when they dealt with them.

The Chairperson suggested that the Committee started from section 25(1) since there was no agreement from the previous meeting.

Mr Xaba noted that in this meeting the Committee was not seeking agreement on any of the clauses. It was an open discussion where parties presented their views and they engaged.

The Chairperson agreed. Last time some Members did not even understand that the clause included deprivation. He wanted to hear if there were any fresh thoughts, not for the purpose of reaching agreement.

Section 25(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

Mr Xaba said the ANC had presented its opinion that the Constitution provided two ways that the state may interfere with property rights, which are deprivation and expropriation. The two had a different meaning. Whilst expropriation was deprivation, deprivation was not expropriation. There was a difference. In expropriation, the expropriated property vested with the state. In deprivation, there was no vesting, it limited the use and enjoyment by the property owner. It was also through deprivation that the state became the custodian of mineral rights.

Dr Mulder understood that section 25(1) should remain as it was – this was also the position of the Department of Justice. He heard Mr Xaba’s suggestions. However, if there was a decision to amend this, he suggested that the Committee do what was done with all the other rights enshrined in the Bill of Rights which were positively formulated. If the Committee wanted to amend, it should start with a positive statement that: “every citizen had the right to own property”. He suggested that it remained unchanged.

Mr Masipa said the DA was challenging the process that was being followed because the Committee was literary ignoring what the National Assembly had instructed the Committee to do.

The Chairperson replied this process was agreed on last Friday 14 May. He had not opened a review of the process. The challenge was not in order.

Ms Lotriet said that the DA was of the opinion that section 25(1) should not be changed; it should remain as it was.

Mr Xaba disagreed with the position stated by Dr Mulder. Section 25(1) was not a positive right; it was a negative right. If the Committee made section 25(1) a positive right they would repeal the transformative nature of section 25 and the values that underlined the Constitution. He declined the invite. He would be happy if they made section 25(1) explicit and that was the only invitation the ANC would accept. As it stood, the ANC was not proposing amendments to subsection 1. As the Chairperson had indicated it was the season of bilateral discussions between political parties. The ANC had already written to different parties expressing its willingness to talk. They may come back with an amendment to subsection 1 only if it made explicit what was implicit.

The Chairperson said he liked the concept of persuasion, no one was imposing anything on anyone. There was a process of bilateral meetings and persuasion would continue there.

Mr Shivambu said he had difficulties with substantive discussions when the parties had not yet completed the bilateral engagements. Some of the items would be better resolved in the bilateral engagements. He did not agree with the intention to make explicit what was implicit. Why did the ANC not say that no one may be deprived of property except by a law of general application and deprivation could be used as an instrument for redress and redistribution of property? That was what the ANC Conference had instructed them to do, to expropriate without compensation for redress and redistribution purposes. The ANC members should make it clear in the Constitution, and consistent with what its delegation told them at NASREC.

The Chairperson said he heard what Mr Shivambu said. The Committee said that in this meeting Members did not need to reach agreement. The Committee identified that the EFF and the ANC still had not gotten close to each other on the matter. He referred to the bilaterals between the EFF and ANC.

Ms Lotriet asked to whom was the invitation for biliterals directed.

Mr Xaba invited Mr Shivambu to put forward his proposal for the bilateral discussion.

Ms M Lesoma (ANC) explained that she had written on behalf of the ANC members who sat on the Committee to the ACDP, DA, FF+, IFP and EFF. The ANC had already started having their bilaterals with the EFF; it was work in progress.

Mr Shivambu said on 14 May the Committee resolved to smoothen the process by letting all the parties engage in bilateral engagements. If the DA wanted to have bilateral engagements, they could write to anyone, they did not have to wait for an invitation. It was an open process of bilaterals so that political parties could persuade each other.

The Chairperson said they should not be brought down by the approach to the bilaterals. They should accept that Ms Lesoma had already taken the initiative to write to the political parties. He asked that Ms Lesoma coordinate with all the parties and ensure the bilaterals were streamlined properly.

Ms Lesoma said she would do that.

Ms Lotriet requested that Ms Lesoma check if she had her correct email with the secretariat.

The Chairperson said he believed the Committee agreed that section 25(1) should go to the bilaterals.

Section 25(2) Property may be expropriated only in terms of law of general application—
(a) for a public purpose or in the public interest; and
(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.

Mr Xaba said the ANC had expressed its view on section 25(2). The ANC had seen the position of the EFF and was prepared to enter into discussions with it. The ANC was worried that the EFF proposal was overly broad because it referred to property in general; that property was everything, property was not just land. The ANC would listen to what the EFF had to say. He was also interested to hear what the DA and other parties had to say.

The Chairperson said for the purpose of the bilateral, all parties were equally important regardless of their size. No parties should be marginalized. The Committee was seeking a solution to a South African problem.

Ms Lotriet said the DA was of the opinion that section 25(2) should remain as it is. The DA had prepared itself in terms of the amendments as published in the Gazette. The DA would give its comments when the Committee looked at the proposed amendments.

Mr Shivambu said he did not understand what Mr Xaba was saying. The current Constitution said that property may be expropriated in terms of a law of general application and subject to compensation. The EFF said, “property may be expropriated without compensation”. Why was it broad when the EFF was saying it? That looked like pure opportunism. They were amending the Constitution and trying to give context to what was the purpose now. The purpose was to remove the compensation component which was currently contained in the Constitution.

Mr Xaba said Mr Shivambu’s reading of section 25(2) was incorrect as he placed a full stop at the wrong place. Section 25(2) did not end where he ended it as there was a qualification requirement. The ANC was prepared to dialogue on the EFF proposal.

The Chairperson said the engagement between Mr Shivambu and Mr Xaba helped the Committee to identify the need for more engagement between each other and other parties could also engage.

Section 25(3) The amount of the compensation and the time and manner of 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—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property;
(e) the purpose of the expropriation.

Mr Xaba said the ANC had not seen proposals from the other parties except the EFF. His comment would be limited to what the EFF had placed on the table. The ANC’s initial reaction to the EFF proposal was that the proposal was going to have a deleterious effect on the existing rights in land or property in general. In short, the EFF was proposing that the Committee agreed to cancel all the existing rights to land and property in general. How would he explain that to the residents of KwaMashu, Ntuzuma, Alexandra, Soweto, Nyanga who recently were given full title deed by government to the houses that they had occupied for decades before 1994. The residents had their dignity restored to them by the Government. Apartheid had refused them this because they were regarded as temporary sojourners outside their reserved areas and they had no right to be in towns and cities. The residents just had their tenure upgraded. How would he explain to them that their rights would be cancelled and converted to leasehold? How would he explain to the community property associations and the trustees of the restituted properties that their title deeds would be cancelled? How would he explain to the residents in Bishopscourt, Sandton and Westville that state officials would administer and supervise the proposed new tenure on their property. The EFF had full confidence on the ability of the state to supervise tenure on behalf of all the people.

The ANC believed in mixed ownership of property: private ownership, public ownership, and communal ownership. The state must be capacitated to accelerate land redistribution to expand access to land. Land reform would be achieved if the state had the capacity to expropriate to deal with national grievances. The reality was that more than 85% of the land was still in other hands owing to that abominable legislation. It was in that context that the ANC was participating in the discussion to amend section 25 of the Constitution. Land expropriation shall be the key mechanism to ensure there was equitable distribution of land. They were unstoppable and they would not be blocked.

Mr Shivambu said what Mr Xaba was demonstrating was that the ANC was not committed to expropriation of land without compensation. If the ANC was saying the Committee must retain section 25(3) as it was dealing with the conditions for which you must compensate for expropriation. Section 25(3)(a) to (e) conditions were denying that the majority of those occupying the land were barbaric colonial settlers or their descendants. The land was taken through violence; that was an obvious fact. If you were saying that the amount must be determined by the court and must take into consideration the history of acquisition, they did not acquire the land, they took it through colonial barbarism. As late as 1993, they tried to introduce a new tenure system through the upgrading of land tenure rights. They realized that a black-only or predominantly black government would legitimately and correctly begin to question the unjustifiable and wrong occupation of land.

It was problematic and irrational to use the people in the townships as Mr Xaba did to justify keeping the land in the hands of those who currently had it. If they were to check how many title deeds were in the hands of black people compared to white people in South Africa, the Surveyor General said that for the overall 122 million hectares, 79% was in white people’s hands, a smaller portion was in the state’s hands. Black Africans did not have access to the land the ANC was claiming to be defending by retaining section 25(3). Out of the 37 million hectares of arable land, 26 million was in the hands of white people and black people had less than 3%. The ANC was not representing black people or defending their rights. It was not dignity to celebrate their presentation of "pieces of paper" to the people who have those apartheid matchboxes. Was that the dignity the ANC was defending? That was not the scope of what the Committee was looking at. The Committee was looking into the land that must be given to black people. There was no dignity in the townships that Mr Xaba had mentioned. Giving those title deeds meant that those houses were now disposable to the banks. They had a predatory financial system of banks that were going to offer loans to people in the townships and the banks would take even those houses given under apartheid. What kind of logic was that?

The EFF was proposing that in section 25(3) they should insert a section that spoke about the state being the custodian of all South Africa’s land and emphasise the security of tenure. Expropriating land piece by piece would be a long tedious process which was going to take forever. The Minister of Public Works illustrated to the Committee that just to expropriate land to put up power lines for public purpose, took more than seven years due to court challenges.

The country had proper jurisprudence for the taking of natural resources in the context of minerals and water. Now they would say state custodianship of land was guaranteed and then convert to tenure rights which would be secured for residential purposes. The conversion of tenure rights was not foreign to South Africa. It had happened in 1970, 1973. It happened with the attempt of apartheid in 1990 and 1993. Why could they not change the tenure right to seek a democratic redress agenda which section 9 of the Constitution said Parliament had an obligation to fulfil? They would not be able to resolve the land question if Members thought the approach would be to assess land piece by piece taking into consideration all those five factors in 25(3). The Committee should delete 25(3)(a) to (e) and introduce a section that gave the state custodianship of the land whilst guaranteeing the security of tenure for those occupying for residential purposes. The intention was not to repossess people’s houses. The EFF wanted the land back but they understood that in the transition, they needed to secure tenure for those staying in certain houses and some other properties that were not due for expropriation.

The Chairperson said that Mr Xaba and Mr Shivambu had assisted the Committee to realise that serious bilaterals by all parties were required on section 25(3). The Committee also needed some clarity on whether custodianship was the same as nationalization.

Mr Gumede said it looked as if they were talking at cross purposes. There was more that Mr Shivambu was adding, especially when he began to tamper with the houses to the extent that he referred to them as matchboxes as if there was anything that the Members could possible do to expand those structures for the communities. As a package, the Ad hoc Committee must know what type of land they were targeting. He supported the view that bilaterals were required. It looked as if Members could not find each other.

Dr Mulder said they were all entitled to their own opinion but not entitled to their own facts. The Committee had to listen weekly to Mr Shivambu’s interpretation of the land percentages occupied and belonging to which group and which group did not have land. Those percentages were interesting but it would not make them the truth. He suggested that Mr Shivambu looked at the report that talked about a third of South Africa’s territory being semi-desert, not agricultural land. Section 25(3) was written by the Constitutional Assembly not by the previous government. The provisions in section 25(3)(a) to (e) were all very relevant because those were the conditions one needed to take into consideration before they could expropriate.

His problem with the EFF position was that it was obviously based on a racial approach. It was clear that land of white people needed to be confiscated and land of black people should not be touched. The second approach was that all land and all property should belong to the state. The Committee should take cognisance of section 1(b) of the Constitution which said that the state was found on the principle of non-racialism. The equality clause in section 9(4) prohibits any person from unfairly discriminating, directly or indirectly, against another. The agenda of the EFF was to deal with the process as a racial approach.

He understood what Mr Xaba said in that the Committee should take cognisance of the dignity of people. The state had restored the dignity by giving full title to the people. The DA believed that was the process that should be continued and enhanced. It was going the wrong direction to think it could expropriate or nationalise or give custodianship which meant the state would take control of all land and property. The Committee could have a look at the wonderful successful example of the state called Venezuela.

The Chairperson requested they agree that they had a Constitution adopted by all the people of South Africa, both black and white, and this process was guided by that Constitution. The problem the Committee faced was a South African problem not a blacks and whites problem. All of them, black and white, were working together under the Constitution to find a solution to a historical problem.

Ms Lotriet expressed a concern about the proposal that the country should go the route of state custodianship of property and land. The Committee had to be guided by the Constitution and the Constitution protected and enshrined their rights. Changing one aspect because of a political experience or ideology would have a knock-on effect on many other sections in the Constitution which was protecting the citizens of the country. It would have a massive economic impact on the banking sector and on jobs. From the DA’s side, there was no way they would consider state custodianship and deny citizens the right to own property and to deal with it as the pleased.

The Chairperson replied that was why he said there were concepts needing to be addressed – whether nationalization and custodianship were the same thing. He did not want to prejudge the matter; it should go to the bilaterals.

Mr Shivambu said in 2018 the Department of Land Affairs released an arable land statistic that of a total 37 million hectares, 72% was owned by white people. Members should not say that the EFF could not say it was white against black, they were dealing with a historical and present fact that defined land ownership in South Africa. The people classified as coloured owned 15% of the arable land, the people classified as Indian owned 5% and Africans who were 80% of the population owned less than 4% of the land. That was scientifically proven data of land ownership in South Africa. One could not say one wanted to take from those who had and give to those who did not have – without making it a racial matter. Apartheid and colonialism were racist, racial matters. They were decisively dealing with apartheid and colonialism now.

The Chairperson said to Mr Shivambu that since 1994 there were black people who bought farms which were subject to expropriation. To deal with those problems, the Committee did not need to racialise them; they must deal with the problems objectively. The problem was that land needed to be redistributed, restituted and the tenure system upgraded.

Mr Xaba wanted to correct Mr Shivambu that the ANC was proposing an amendment to section 25(3) to make explicit what was implicit in the Constitution. The ANC was proposing that legislation must be enacted to determine circumstances where the amount of compensation was nil. That was the amendment they were proposing so it could be possible for the state to expropriate land without compensation. He asked Mr Shivambu what would happen when the lease expired. Would someone, who had his title deed converted to leasehold as a tenant, be expected to pay rent annually or monthly? Those were the issues they needed to deal with when they met in the bilaterals.

Mr Shivambu said there was a clear distinction between nationalization and state custodianship; the EFF would do a simple table where they illustrated the two. [He lost network connectivity].

The Chairperson said the Committee had agreed that section 25(3) would go to bilaterals.

Section 25(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and (b) property is not limited to land.

Mr Xaba said the ANC had no comment on section 25(4) but they had an open door policy; they were willing to engage.

There was no further comment.

Section 25(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

Mr Xaba said the ANC was not proposing any amendment at that stage; it was open to persuasion.

There was no further comment.

Section 25(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

Mr Xaba said the ANC was not proposing any amendment at that stage. The ANC was still in discussions with different political parties, they may come back with a different position.

Mr Shivambu said he wanted to discuss the huge distinction between custodianship and nationalization. The EFF would give a basic illustration of what was the distinction. The EFF would make a submission to the bilaterals and to the Committee. There was a deliberate bastardisation and misunderstanding of the custodianship demand and proposal that the EFF was making. All the questions would be resolved when the EFF made its substantive submission. He was having network connectivity problems so he would not participate in the remaining sections.

The Chairperson said Mr Shivambu must try and participate because after this meeting they wanted to identify all the matters that needed to go to bilaterals.

Section 25(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

Mr Xaba said the ANC was open to persuasion; it was not proposing an amendment at that moment.

The Chairperson asked if Mr Shivambu wanted to comment but he had lost connectivity again.

There was no further comment.

Section 25(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

Mr Xaba said this was a very progressive and important provision in the Constitution and read it out. It reflects the character of the transformative nature of section 25 that none of its clauses give any positive right, contrary to what Dr Mulder was saying. When a guaranteed right and the reformative element of the Constitution are in conflict, the reformative element  will take precedence. When we interpret the Constitution, we must interpret it holistically not piecemeal. No single clause in the Constitution must be interpreted without reference to the structure of section 25 and outside its transformative character as it is captured in the Preamble of the Constitution. The ANC was not proposing an amendment to 25(8).

Dr Mulder said it was a good formulation by Mr Xaba. However, Section 36(1) was specifically referred to in section 25(8) which said that reform must be in accordance with the provisions of section 36(1). Section 36(1) said that the rights in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation was reasonable and justifiable in an open and democratic society based on human dignity, equality, freedom and taking into account all the relevant factors.

Mr Xaba added that they were together on that.

Section 25(9) Parliament must enact the legislation referred to in subsection (6).

Mr Xaba said the ANC was not proposing an amendment to the section. Section 25(9) was merely saying that Parliament must enact legislation to give effect to section 25(6) which promoted the upgrade of land tenure rights. Unsecured tenure must be upgraded as it is only when government took strong measures to deal with that, the dignity of the people would be fully restored. A lot of legislation had been promulgated to deal with that; however, there was still more to be done.

There were no further comments.

The Chairperson proposed that Ms Lesoma should identify the areas that should go to the bilaterals and circulate them. If a party thought that something had been omitted, it reserves the right to include that. The bilaterals should be completed latest by Sunday. When they met the following week the purpose would be to identify where there was convergence and where there was no convergence. They would decide as a Committee how to deal with those differences so it can come up with the revised text.

The Committee had agreed that they would deal with the legal opinion afterwards. In his view they should not as there were allegations against Parliamentary Legal Services. Those allegations were not shared by all Members and they did not have substantive advances to back those allegations. He wanted to be given the opportunity to seek advice from the Chair of Chairs on how they should deal with that matter. He proposed that they should not deal with the matter until he got advice from the Chair of Chairs

Dr Mulder said he understood that the legal opinion was an excellent legal opinion based on the law, on the Rules of Parliament and it had also consulted the National Assembly Table. He agreed with the Chairperson's proposal but the legal opinion would need to discussed at some time

Mr R Moroatshehla (ANC) said he also supported the proposal made by the Chairperson.

The Chairperson said he had the duty to defend the integrity of the Parliamentary Legal staff. If they were attacked, he could not turn a blind eye. He had worked with Parliament Legal Services and had no basis to suspect that they were dishonest or lacked integrity. He asked if the Members agree that this was the end of the meeting. He requested that by Sunday 23 May, the parties must have engaged the bilaterals and he thanked them for the cooperative nature of this meeting. He added that the Committee was going to ask for permission to meet more than once per week.

Meeting adjourned.

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