Draft Constitution Eighteenth Amendment: Committee extension request

Meeting report

The Chairperson said that he was pleased that political parties had engaged in bilateral discussions after he had encouraged them to do so in Friday’s meeting. He hoped that the discussions had helped the parties to get closer to consensus and to make progress in the best interests of South Africans. As agreed in Friday’s meeting, parliamentary legal services had produced a draft Bill for the Committee’s discussion. He hoped that Members would not “quarrel” or make “war” with legal services. The legal advisers were making a proposal for the Committee’s consideration, not imposing it upon the Committee. Members should make contributions informed by their own positions and by the positions that had emerged during bilateral discussions, but lawyers did not always agree. Disagreement was no reason to cast “aspersions” on the legal advisers, who were – like everyone else – entitled to their opinions.

Mr F Shivambu (EFF) proposed that the Committee should consider asking Parliament for an extension. Bilateral discussions had not yet produced consensus or “foundational agreement” about what section 25 of the Constitution should look like. In the interests of “democratic engagement and consensus-building,” the EFF wanted to request an extension to enable further deliberations.

The Chairperson replied that Mr Shivambu’s request was premature, and that the Committee would return to it later. The bilateral meetings were not an official part of the Committee proceedings. The Committee first had to capture on record the progress it had made or had not made. Then, if and when the Committee requested an extension, it would be able to justify its request by specifying why it needed an extension, what it would do with it, and which issues remained in question. After the Committee heard from legal services, he would ask Members to summarise their parties’ positions and to indicate where they agreed or disagreed with each other.

Ms R Lesoma (ANC) agreed that the Committee could deal with Mr Shivambu’s proposal later. However, the discussion should conclude by 11.30 a.m., which was the deadline for the parliamentary announcements, tablings and committee reports (ATC). 

Presentation by legal services: draft Constitution Eighteenth Amendment Bill

Adv Charmaine van der Merwe, Senior Legal Adviser: Office of Constitutional and Legal Services (OCLS), Parliament, presented the proposals made for changes to the Bill by the ANC, EFF, and FF+. Each of these proposals concerned clause 1 of the Bill, although the explanatory note, the long title of the Bill, and the memorandum on the objects of the Bill would be adjusted in line with the Committee’s final decisions on the amendments.

Paragraph 1(a): Positive right to property in subsection (1) 

The FF+ proposed amending subsection 25(1) of the Constitution to insert that “everyone has the right to own property.” This would provide for a positive right to property.

Paragraph 1(b): Expropriation with nil compensation in subsection (2)

Paragraph 25(2)(b) of the Constitution provided that property could be expropriated “subject to compensation,” as agreed by affected parties or decided by a court. The Bill as advertised inserted that, “a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.’’

Adv van der Merwe said that the ANC proposed two changes to the insertion made by the Bill under paragraph 25(2)(b). First, it proposed removing the word “court,” and providing simply that the amount of compensation could be nil. The ANC’s concern was that the provision might otherwise be interpreted as making the courts the primary decision-maker in the matter, which would be contrary to the intentions of the Committee. Second, it proposed inserting a definition of “land reform” by reference to subsection (8).

The EFF proposed deleting paragraph (b), and instead amending subsection (2) to provide outright that property could be expropriated without compensation, for a public purpose or in the public interest and in terms of law of general application.

Paragraph 1(c): Determination of compensation in subsection (3)

The Bill as advertised made only consequential amendments to subsection 25(3) of the Constitution, which set out the factors to be considered in the determination of compensation. The EFF proposed deleting subsection (3) entirely.

Paragraph 1(d): Determination of compensation under national legislation in subsection (3A)

The Bill as advertised inserted subsection 25(3A), requiring that national legislation had to “set out specific circumstances where a court may determine that the amount of compensation is nil.” The ANC proposed deleting the word “specific” and deleting the reference to the courts. This proposal, like the ANC proposal under paragraph (b) for subsection (2), was intended to clarify that the courts were to resolve disputes, not to act as the primary decision-maker.

Paragraph 1(e): State custodianship in subsection (4A)

The EFF proposed inserting subsection 25(4A), which provided that “Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state.” The EFF had proposed this insertion as a new paragraph under subsection (4), but, for drafting reasons, legal services had inserted it as a new paragraph. Adv van der Merwe thought that the EFF intended the provision to have wider applicability than it would if it was included under subsection (4).

Paragraph 1(f): State custodianship in subsection (5)

The EFF proposed amending subsection 25(5) of the Constitution, which currently provided that the state had to take reasonable “measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” The EFF proposed that the provision should require the state to take reasonable “measures which enable state custodianship and for citizens to gain access to land on an equitable basis,” without referring to the resources of the state.  

Paragraph (g): Cut-off date for restitution and redress in subsection (7)

Subsection 25(7) of the Constitution currently provided that a person or community was entitled to restitution or redress if they had been dispossessed of property after 19 June 1913 as a result of racially discriminatory laws or practices. The EFF proposed deleting the cut-off date.

Paragraph (h): Obligations on Parliament in subsection (9)

Subsection 25(9) of the Constitution currently required that Parliament had to enact the legislation referred to in subsection 25(6) – that is, legislation providing redress to a person or community whose tenure of land had been made insecure by racially discriminatory laws or practices. The EFF proposed requiring Parliament to enact all legislation referred to in section 25. Thus, for example, Parliament would have an obligation to enact the legislation mentioned in subsection 25(7), to provide for restitution and redress for dispossession.

Adv van der Merwe said that if the Committee agreed on the proposals, in many cases the amendments would necessitate taking further steps, as required by the National Assembly (NA) rules and by section 74 of the Constitution. All proposed amendments, except for those proposed under paragraphs (b), (c), and (d), would require the Committee to approach the NA for permission to extend the scope of the Bill. All proposed amendments, because they had not been advertised previously, would have to be published for public input and sent to departments, the provincial legislature, and the National House of Traditional and Khoi-San Leaders. On the ANC’s proposal for paragraph (b), however, Committee Support disagreed with Adv van der Merwe and the Constitutional and Legal Services Office (CLSO). Adv van der Merwe thought that those amendments would have to be published, especially due to “the importance and nature of the Bill.” Committee Support, drawing on precedent from the Truworths case, thought that the amendments would not have to be published, because they were technical amendments and the result of public input. Committee Support and CLSO also disagreed about whether the ANC’s proposed amendments under paragraph (d) would have to be published.

Discussion
The Chairperson asked for clarification about how Adv van der Merwe recommended the Committee should handle its newly proposed amendments, where they deviated from the Bill as advertised. In past meetings, he had said that South African democracy was both representative and participatory, meaning that Members of Parliament (MPs) did not have a “monopoly on wisdom.” Therefore, the Committee had to consult with the people and find out their views. Members of the public had expressed opinions about section 25 of the Constitution – for example, about subsection 25(7). Should the Committee ignore their views, simply because they were not included in the advertised Bill? Moreover, the Bill as advertised had itself been a “compromise.” 

Adv van der Merwe replied that, as legal services had explained the previous week, the Committee could make amendments to the draft Bill. It would be unacceptable if the Committee ignored the views of the public. The Committee had to consider, though not necessarily accept, the public’s views. For example, it was already clear from party proposals that Members disagreed with the view, expressed by some members of the public, that the circumstances for expropriation with nil compensation should be set out in the Constitution itself, rather than in national legislation. That Members disagreeing with that view did not mean that they had not considered it. More importantly, in amending the draft Bill, the Committee had to follow the legislative process set out in the Constitution and in the NA rules. If the Committee decided to make amendments that were not included in the Bill as advertised, then section 74(5) of the Constitution – and NA rule 275(a) – required that those amendments should be published for further consultation. If the Committee decided to make amendments that would expand the scope of the Bill, it had to seek permission from the NA to do so, under NA rule 286. The Committee was an extension of the NA and had been given a certain mandate. These processes applied to any bill, not just the Bill before the Committee – although, of course, section 74(5) of the Constitution was specifically applicable to constitutional amendment bills.

The Chairperson said that he did not want to turn the meeting into bilateral consultation between political parties, but he welcomed Members’ comments. Thereafter, the Committee could turn to the EFF proposal to request an extension, and consider it in light of what Adv van der Merwe had said about the necessary legislative processes. Legal services had done a “fantastic” job.

ANC proposed amendments

Ms Lesoma said that she appreciated the good work done by legal services, after the “very interesting” meeting the Committee had had the previous week. She asked if Mr V Xaba (ANC) could be permitted to clarify, for the record, the ANC position on the draft Bill. After that, Mr Shivambu could repeat his proposal for an extension, to which she was eager to respond.

The Chairperson agreed that the ANC should present its position, because it would close an important gap.

Mr Xaba asked Adv van der Merwe to make two amendments and two insertions in the ANC proposals under clause 1 of the draft Bill, so that the document would be representative of the ANC’s current position.   

Paragraph (b): Expropriation with nil compensation in subsection (2)

Under paragraph 25(2)(b) as amended by the Bill, Mr Xaba asked Adv van der Merwe to remove the word “the” in the ANC’s proposal – a technical amendment.

Paragraph (d): Determination of compensation under national legislation in subsection (3A)

Mr Xaba said that, since the ANC’s proposed paragraph 25(2)(b) did not refer to subsection 25(3A), those provisions did not “talk to each other,” meaning that it was not clear that subsection (3A) referred to nil compensation specifically in the context of land reform. The start of the ANC’s proposed subsection (3A) should therefore be amended, so that the provision would read, “For the furtherance of land reform, national legislation must, subject to subsections (2) and (3), set out circumstances where the amount of compensation may be nil.”

Paragraph (e): State custodianship in subsection (4A)

The current draft did not reflect any ANC proposal for subsection (4). Mr Xaba said that the ANC proposed inserting a subsection (4A) to provide that, “The land belongs to and is the common heritage of all South Africans.”

Paragraph (f): State custodianship in subsection (5)

The current draft also did not reflect any proposal for subsection (5). Mr Xaba said that the ANC agreed with the EFF that the Bill should require the state to take reasonable measures towards state custodianship of land. However, the ANC wished to retain the reference, currently in the Constitution, to the state’s available resources and to its obligation to foster conducive conditions. The ANC therefore proposed that subsection (5) should be amended to read, “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of land and for all citizens to gain access to land on an equitable basis.”

Later in the meeting, Mr Xaba returned to this paragraph and asked Adv van der Merwe to remove the word “all” before the word “citizens.” The ANC proposal was in fact that subsection (5) should refer to conditions enabling “state custodianship of land and for citizens to gain access to land on an equitable basis.”

Mr Xaba said that parliamentary legal services could assess the ANC proposals to ensure that they were consistent with the rest of the Bill. The amendments proposed by the ANC would be published if the Committee received an extension for its work.

Dr C Mulder (FF+) said that the ANC proposals presented a “difficulty” for him. None of the other parties – except perhaps the EFF – had seen the new proposals prior to the meeting, so of course he had not been able to consult with anybody about them. He asked for clarity about the ANC’s new proposal in subsection 25(5). What did the phrase “to foster conditions which enable state custodianship of land” mean?

Mr Xaba replied that, as mentioned in a previous meeting, the ANC believed in mixed land ownership – a mixture of private ownership, state ownership, and communal ownership. Under the envisaged programme, the state would acquire land for redistribution. But, unavoidably, there would be a period of time after the acquisition of land by the state – by expropriation, or whatever other means – and before its redistribution. During that period between acquisition and redistribution, the acquired land would be under state custodianship. That was one form of state custodianship. A second form of state custodianship already existed. Communal land, for example, was under state custodianship but administered by traditional authorities. So state custodianship was not a new innovation, but the intention was to make explicit that which was currently implicit.

The Chairperson said that Mr Xaba’s explanation was clear.

Ms Lesoma said that it was important for the ANC to address the FF+. After their last meeting, they had agreed to meet immediately – but unfortunately that had not happened. Dr Mulder was correct that the ANC position had changed slightly, but the new proposals reflected “continuous persuasion” through continual engagements with stakeholders. The ANC had had bilateral discussions not only with the FF+ but also with other parties – that was not a secret. As the process continued, the ANC tried to accommodate everyone’s views, in the interests of all South Africans and not on party-political grounds. The change in the ANC position did not mean that it had been engaging “in bad faith.” But, through continual engagements, the ANC had reflected on its proposals and had adjusted them. 

Mr Xaba added that he had forgotten to mention, in his reply to Dr Mulder, that there was a difference between redistribution and restitution. With restitution, the state took land from the owner and gave it directly to the claimant. With redistribution, the state acquired land and held it until it redistributed it. The Bill would provide for state custodianship in that context.

The Chairperson noted that Dr Mulder had not seen the proposals before the meeting, and asked the ANC to ensure that all parties received the proposals.

Proposed request for extension

Ms Lesoma said that she had missed part of what Mr Shivambu had said at the beginning of the meeting while he was asking the Committee to consider requesting an extension from Parliament. She would like him to repeat his point before she responded.

The Chairperson replied that Mr Shivambu would have to repeat his proposal for the record anyway, because he thought that the initial proposal had been premature.

Mr S Gumede (ANC) noted that there were many “remarkable” amendments that the Committee wanted to effect, and the Committee still needed to consult with the public and the NA. He asked Adv van der Merwe how long it would take the Committee to follow these processes. This was important for the Committee to consider. Could it follow the necessary processes within the time it had been given?

The Chairperson agreed that this was a critical question. The answer to that question would indicate what would be a reasonable extension to ask for, if the Committee did decide to request an extension. He had thought Mr Shivambu’s proposal was premature precisely because the Committee should not ask for an extension without knowing how long of an extension it needed.

Mr Shivambu said that he thought that the Committee had now resolved thrice to amend section 25 in its entirety, taking into account the input of the public. Yet parliamentary legal services persisted in “strong-arming” the Committee into renewed consultation. The Committee had already taken its decision, and it had decided that it had done enough consultation. Why could the legal advisers not present the Committee’s proposals without returning to the issue of consultation? It had already rejected the position of legal services regarding the need for further consultation. Legal advisers were not politicians and were not elected. Members of the Committee were elected to their positions, and, on the basis of their “wisdom” and legal knowledge, they had decided that the Committee could amend section 25 in its entirety. If the legal advisers did not want to do the requisite work, or if their principles disallowed them to accept the Committee’s decision, they should “step aside” and allow the Committee to do the work itself. The consultation issue could not be discussed at every meeting. The Committee had consulted with the people, and its proposals reflected those consultations. What legal services was providing was not legal advice but “political interference” with the Committee’s processes. The Committee should discuss the draft without considering the consultation issue, because that question had already been resolved and set aside. The situation was “very problematic” and bordered on “misconduct.” Every time legal advisers spoke to the Committee, it was to “force-feed” Members their version of how the process should be handled. As elected representatives, Members had a very clear mandate for land expropriation without compensation. Once the Committee had reached agreement and presented its report to Parliament, the legal services office could take the matter to court. The Committee would defend itself on the grounds that it had had adequate consultations, that all public submissions had been reflected in the process, and that it had not done anything wrong.

On the proposed extension, Mr Shivambu said that the EFF and the ANC were in the process of discussing three issues. These were the issue of state custodianship, the issue of the 1913 cut-off date in subsection 25(7), and the issue of whether the phrase “without compensation” should be used instead of “with nil compensation.” However, the parties had not yet reached consensus. Their bilateral discussions were not secret, and had been openly engaged in. If they reached consensus, they would vote together to amend the Constitution. The EFF was requesting that the Committee consider postponing the process, and the adoption of the report, until the EFF and ANC had reached agreement. There was “scope for consensus” on all three issues. For example, the ANC’s new proposal for subsection 25(5) referred to state custodianship of land, although it was not yet “clearly and cogently stated.”

The Chairperson said that he had to “set the record straight.” As democratically elected MPs, Members had “the right to decide,” but that right had to be exercised within the law. Parliamentary legal services was advising the Committee on whether its decisions complied with the law, the Constitution, and the rules of Parliament. There was no strong-arming, no misconduct, no political interference, and no need for anyone in the process to step aside. As a lawyer himself, he might agree or disagree with the legal advisers, as might other lawyers – but this was not a platform where his or other lawyers’ opinions were decisive.

However, the Chairperson said that Mr Shivambu had helped the Committee to start working out which issues remained unresolved and could be used to justify a request for an extension. The EFF and ANC still wanted to engage about certain issues: the use of “without compensation” over “with nil compensation,” the issue of state custodianship and how it would differ in scope from nationalisation, and the 1913 cut-off date.

Mr Shivambu also said that there was scope for consensus between the EFF and ANC. However, the process at hand was not an EFF-ANC process. It was a process of Parliament and involved all parties represented in the Committee. So the Committee would consider the views of other parties, and would seek not just an EFF-ANC consensus but a consensus among all parties or at least among some parties.

Dr Mulder strongly agreed with the Chairperson’s defence of legal services. Mr Shivambu’s opinion on the matter was not unfamiliar – he had expressed it in the past. But South Africa was a constitutional state, not an anarchist one. The Committee could not operate by merely declaring its decisions. The Committee was an extension of Parliament, and Members were bound by the Constitution and the parliamentary rules. It could not just ask legal services to “step aside.” 

Dr Mulder noted that the Chairperson had said earlier that members of the public had expressed a view on section 25(7) of the Constitution, which contained the 1913 cut-off date. However, it was a bit of an exaggeration to present this view as a consensus of the public. The public had said many different things about the Bill and even about section 25(7). 

The Chairperson said that Dr Mulder was right. He had referred to the dominant view in the public submissions, but that was unfair. All views – whether held by a few or by the many – deserved attention.

Dr Mulder said that the Committee faced a problem. In terms of the resolution of Parliament that gave the Committee its mandate, that mandate expired at the end of the day. Either the Committee reported back to the NA that day, or its mandate would “fall by the wayside.” He understood if some parties wanted to have further bilateral discussions, but he did not think that this would make an adequate report to Parliament. By the end of the day, the Committee needed to report something substantial in terms of its mandate. Ms Lesoma had said at the beginning of the meeting that the deadline to make the ATC was 11.30 a.m. 

Ms Lesoma said that there might be “frustration.” After requesting multiple extensions, the public might view the Committee as “stringing them along.” On the other hand, the Committee did not want to present a “half-baked product.” It wanted to ensure that there was meaningful constitutional change to enable redress of historical imbalances around land ownership. She agreed with Mr Shivambu’s reasons for requesting an extension. In addition, a prior legal opinion said that the Committee had to prove beyond a reasonable doubt that it had incorporated the views of the public into its processes. The ANC also had its own lawyers, as did other political parties. When the bilateral discussions were concluded and the Bill was agreed upon, the Committee must be assured that, in alignment with the legal advice it had received, it had checked all the “nuts and bolts.” A report on all the phases of the public participation process was concluded – the missing part was the actual text of the Bill. She agreed with the EFF’s motion to request an extension. If Parliament could give the Committee another 30 days, political parties would be able either to reach agreement on the Bill or to agree that they were not going to reach agreement. It need not ask for an “open-ended lifespan.”

Prof A Lotriet (DA) said that it would be “very problematic” for the Committee to discuss, in that day’s meeting, the new proposals. Members worked with specific mandates. Now that the ANC had included state custodianship in its proposed amendments, the DA would have to consider that issue, which was much more complex than suggested. There were still many things to discuss, and she definitely did not think that the Committee could make a final decision yet.

The Chairperson believed that all Members were in agreement on Prof Lotriet’s point, which was why the EFF had proposed an extension. He asked the EFF to make a formal request for an extension, and also to indicate the areas which it thought were outstanding and which would be on the agenda at future bilateral discussions.

Mr Shivambu repeated the EFF proposal that the process should be postponed so that Members could continue to engage in Committee deliberations and in bilateral discussions. There were three key issues: the choice between “without compensation” and “nil compensation”; the issue of state custodianship and how it should be incorporated in section 25; and the cut-off date for restitution purposes. Those were the major issues on which the EFF thought that consensus could be reached and on which consensus had not yet been reached. The Committee therefore needed to have further deliberations, so that it could present to Parliament a comprehensive and final Bill that had the support of a majority. State custodianship and expropriation without compensation were both consistent with the 27 February 2018 resolution of Parliament.

The Chairperson asked how much more time the EFF wanted.

Mr Shivambu replied that the EFF wanted an additional 60 days. 

Prof Lotriet said that the DA supported a postponement and would be fine with 60 days. However, she was concerned that the scope of the postponement was “prescriptive” and included only EFF proposals. She would say that the reason for the postponement was to deliberate further. She did not think that the Committee had to state that it was seeking consensus, nor did she think it should be “dictated to” on what it had to discuss in its remaining time.

The Chairperson said that the EFF was not dictating, but rather was specifying the issues that, in its view, were key to future deliberations. The DA was free to raise other issues that it thought was important. If it was not prepared to specify them now, it could raise them in bilateral discussions.

Prof Lotriet acknowledged the reply, but said that she was still uncertain whether it was necessary to specify those issues in the Committee’s request for an extension.

The Chairperson asked Prof Lotriet whether she wanted to mention any specific issues.

Prof Lotriet replied that what needed to be discussed were the proposals that had been submitted earlier in the meeting, because parties had not had sufficient time to obtain mandates on those. She would prefer to frame the issues, and the reason for postponement, in general terms.

Ms Lesoma said that Members should keep in mind that Parliament would enter recess at the end of the week.

The Chairperson interrupted to remind Ms Lesoma that his primary concern was to establish whether Members supported the EFF’s proposal to request an extension.

Ms Lesoma replied that the ANC supported the extension in principle, but that she was “laying the foundation” for a more detailed position. Since Parliament was going into recess, she suggested that the Committee should request a compromise of an extension of 30 days, not 60 days. It should not request an unreasonably long extension. If given a 30-day extension, Members would work without sleeping to ensure that they reached a consensus within two weeks, and thereafter the Committee processes would run smoothly.

Ms K Mahlatsi (ANC) said that she supported Ms Lesoma’s proposal for a 30-day extension. Over the last fortnight, different political parties had managed to interact and share their views. She thought that all Members shared the intention to finalise the matter, and could take the process seriously. 60 days seemed too long.

The Chairperson said that he did not want the Committee to take “arbitrary” decisions. As he had said earlier, Members had “the right to decide,” but had to exercise that right within the law and the parliamentary rules. He asked Adv van der Merwe what timing would be required to carry out the consultation processes that legal services thought were required of the Committee. He did not necessarily agree that further consultation and applications to the NA were required, but he did want an indication on the timelines that taking that route would entail.

Adv van der Merwe replied that legal services could not advise the Committee on parliamentary timelines. However, she had been in contact with Mr Vhonani Ramaano, the Committee Secretary. Mr Ramaano said that if the Committee decided to advertise any amendments, he recommended three weeks for advertising and two weeks to consider the resulting submissions. So if the process included advertisements, it would take two or three months. 60 days should therefore be sufficient. In addition, the Committee should keep in mind that the recess was long this year, and ended only on 16 August. Therefore, if the Committee asked for an extension that ended during recess, the NA would not be able to make any decisions on anything the Committee reported until after 16 August.

The Chairperson asked whether it was not possible to call a special sitting of Parliament.

Adv van der Merwe replied that it was possible, but the Committee should keep in mind that it would then have to request such a sitting. There had been some special sittings in April and she thought it had become easier to arrange them now that the sittings were held virtually.

The Chairperson said that, currently, there were land invasions happening which caused conflicts in society. This negatively affected the government’s efforts to build “socially cohesive and prosperous” communities. Moreover, it was delaying progress on the recovery plan, which had been adopted by Parliament and whose implementation depended on the resolution of “the land question.” The government could not tell people to build a new economy if they did not have anywhere to live. Therefore, he thought that the Committee should settle on an extension of 30 days, and do the requisite work in June. Thereafter it could ask Parliament to have a special sitting to finalise this matter. The government might lose control over its people if the matter was not urgently addressed. There were not many outstanding issues before the Committee, and they were not as complex as they appeared. He thought that some of the issues probably would not even require public consultation. Did the Committee agree to request an extension of 30 days, and thereafter to request a special sitting of Parliament?

Mr Xaba asked Adv van der Merwe whether the Committee could ask for permission to embark on the public consultation process at the same time as it asked for an extension. That way, if Parliament approved the request, the Committee would know both that it had an extension and that it could publish the new amendments. The Committee would not have to wait for a response and then submit another request.

Ms Lesoma agreed with the Chairperson. When Parliament was on recess, it was not shut down, and work could proceed, provided the Committee had been granted permission to continue working.

Mr N Masipa (DA) said that after hearing from Adv van der Merwe what had to be done, he thought that 60 days would be reasonable. After 30 days, the Committee might find itself in the same position of needing an extension. It should ensure that it ticked all the boxes it needed to tick, so the extension was not just to serve one political party but rather would enable the Committee to be thorough in its work.

Ms Mahlatsi said that she thought the process thus far had taught Members “serious lessons” about how “meticulous” the Committee needed to be. However, this would be the fourth extension requested by the Committee. She did not think that the Committee’s work should be extended beyond 30 days when it was possible for it to finalise its work in a “reasonable” – that is, shorter – timeframe. If the Committee could request a special sitting, and if it could finish its work within 30 days, then it should request an extension of 30 days.

Ms Lesoma said that the Committee could not fight for half an hour about the difference between 30 days and 60 days. She therefore supported the Chairperson’s proposal.   

The Chairperson said that even to request 30 days was only to make a request, and perhaps an “unreasonable” one. So the Committee should not stretch the request too far. He thought that Mr Xaba’s suggestion, that the Committee should simultaneously request permission for public consultation, was useful. It would mitigate against uncertainty around the response from Parliament and would enable the Committee to have “the whole package” as it continued its work. 

To Mr Xaba’s question about whether it was possible to make two requests at once, Adv van der Merwe deferred to Mr Ramaano. Personally, she would support the proposal, but Mr Ramaano was better positioned to speak about what could or could not be included in a Committee report.

Mr Ramaano said that he thought the Committee could ask for permission to publish the amendments at the same time. The Committee had to decide whether it agreed with legal services that certain amendments had to be published for further comment. If Members agreed, then the Committee would request, simultaneously, three things: an extension to a specific date, permission to expand the mandate of the Committee in specific ways, and permission to advertise new amendments for further comments.

The Chairperson said that he thought the Committee should not do anything that would take longer than 30 days. The need for public consultation arose from the desire to cover the Committee’s back. However, in covering its back, the Committee should not open itself up to further extensions.

Mr Xaba asked Adv van der Merwe for her opinion.

Dr Mulder asked for clarification. Was the Committee going to report to the House and get into the ATC within the next 30 minutes? If it was, would it merely submit a one-line report saying that the Committee required a 30-day extension, or would it submit something more elaborate?

The Chairperson replied that he thought that the Committee would submit a memorandum requesting an extension. The memorandum would also specify the areas where the Committee still needed further engagement. But Mr Ramaano could clarify whether it would be a report or a memorandum.

To Mr Xaba, Adv van der Merwe said that she gauged from Mr Ramaano’s response that the Committee could combine its requests. That is, in its report or memorandum to the NA, it could request to proceed with the new amendments and to advertise them if necessary.

Mr Ramaano said that in the past, the Committee had requested an extension by way of a memorandum. That was what he suggested using in this instance.

The Chairperson said that the Committee would use a memorandum and would request an extension of 30 days. It would need a special sitting of Parliament, because the matter could not be dragged out any further. Mr Ramaano would prepare a memorandum setting out the request, as made by the EFF, seconded by the DA, and supported by the ANC.

Mr Masipa said that Dr Mulder’s question had not been addressed. Would the Committee submit a full report? If so, what should Members expect to see in the report? Or would it just be a memorandum, specific to the resolution being put to the NA? Members needed clarity so that they could leave the meeting with some idea of what to expect.

The Chairperson said that he thought that the Committee would only be able to submit an interim report, not a final report, since it had not concluded its deliberations. Moreover, the memorandum was what was needed for the extension, and was therefore more important than the report.

Mr Masipa said that he would like it on the record that the DA had proposed an extension of 60 days, not 30 days. On behalf of the DA, he thanked the Chairperson for defending parliamentary legal services earlier in the meeting. The DA was grateful and hoped that the Chairperson would continue to defend legal advisers in Committee meetings.

The Chairperson replied that he had not been defending legal services, since it had not been charged with any offence. He asked Mr Ramaano for confirmation on whether the Committee would submit a report, a memorandum, or an interim report and memorandum.

Mr Ramaano said that the problem with submitting an interim report was that the Committee would have to reconvene to adopt it, and there was no time for that, since its mandate expired that day. He showed Members an example of a memorandum the Committee had sent previously. The memorandum would outline what the Committee had done so far and what remained to be done, and then would request an extension.

The Chairperson said that he thought Members would agree that an interim report was not feasible, because the Committee did not have time to adopt it. Moreover, the report was not essential, since it was not required for getting an extension. So the Committee would send a memorandum instead.

Dr Mulder agreed that it would be impossible to send an interim or final report. The Committee should just send a memorandum asking for an extension.

Ms Lesoma said that the extension request matter was now clear. She requested that the Committee secretariat formulate a proposed programme, specifying when the Committee was going to adopt its minutes and so on. That way, when the Committee returned, it would not come back to outstanding issues that could easily have been dealt with earlier.  

The Chairperson agreed. He asked Mr Ramaano to produce a programme for the Committee.

Mr Gumede apologised for returning to the issue of the report, but he thought that Members seemed confident that the Committee would be granted an extension. However, what would happen if the Committee was not granted an extension, and no report had been adopted or submitted?

The Chairperson said that Mr Gumede’s question was an appropriate “academic” question. However, he thought that the parliamentary leadership would appreciate the significance of the matter. The government could not allow a situation where the constitutional amendment process collapsed. If it did collapse, it would be “disastrous” for the country. Members would also speak to parliamentary leaders “on the sidelines” in order to impress upon them that the Committee’s work was a matter of grievous national interest, that no chances could be taken, and that the request for an extension had to be given serious consideration. He asked Members whether he could adjourn the meeting, in order to give the secretariat time to prepare and submit the memorandum.

Mr Ramaano said that he needed further clarification to ensure that the memorandum he drafted reflected the Committee’s intentions. The Committee had extensively discussed its mandate. Some Members held that the Committee had overstepped its mandate, and that it should approach the NA for permission to expand its mandate. Other Members thought that the Committee had remained within its proper remit. Should the memorandum also mention that the Committee wanted to extend its remit to other subsections of section 25 of the Constitution?

The Chairperson said the memorandum should not mention this. The memorandum should confine itself to the three issues raised by Mr Shivambu.   

Mr Xaba said that, if he understood correctly, the memorandum should deal with the subsections on which amendments had already been proposed by the ANC, EFF, and FF+. That would clarify which provisions were up for further discussion.

The Chairperson said that Mr Xaba was correct. That was why he had asked the ANC to restate its position earlier in the meeting.

Dr Mulder said that he did not think that approach was appropriate. The Committee could not ask for an extension to accommodate the views of two political parties. It could ask for an extension because, simply put, it had not completed its work. Internally, the Committee knew what matters it wanted to deliberate on further, but it could not ask Parliament to give it an extension just because two parties were still negotiating with each other.

The Chairperson said that he had asked all parties to raise any issues that they felt were unresolved, but only the EFF had done so. However, he hoped to accommodate Dr Mulder by saying, in the memorandum, that the Committee still wanted to engage on the three issues raised by Mr Shivambu and on “any other matters that parties may raise.” Prof Lotriet had suggested leaving it general in a similar way. The Committee process was not a two-party process, dominated by the EFF and the ANC; it was a process for all parties.

Mr Masipa agreed with Dr Mulder that the Committee could not request an extension on behalf of one party.

The Chairperson replied that he had already dealt with that objection.

The meeting was adjourned.