Draft Constitution Eighteenth Amendment: deliberations

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 18 June 2021 

Section 25 Review Process
Hansard: Expropriation of Land without Compensation
Motion: Expropriation of Land without Compensation
Draft Bill, with party proposals

In this virtual meeting, the Ad Hoc Committee continued with deliberations on the Draft Constitution Eighteenth Amendment Bill. Overall, there was not a clear agreement among parties, particularly on nil compensation, state custodianship of land, and even on amending the Constitution.

The ANC presented its revised amendments and made it clear that they are not ousting the jurisdiction of the court; the court retain its responsibility when there is a dispute, but land expropriation is the terrain of the executive. The revised amendments stipulate that national legislation should define the circumstances where “compensation is nil” and it also clarifies that the state must foster conditions that enable state custodianship of “certain land” for citizens to gain access to land on an equitable basis. The ANC stated its revised amendments accommodated the views of other parties, but that other parties had not reciprocated an attempt to accommodate the ANC’s views. They urged other parties to engage in a spirit of “give and take”.

The EFF fundamentally disagreed with the ANC’s revised position, particularly in reference to the ANC supporting compensation under certain circumstances and the state being custodian of only “certain land”. While the ANC supports hybrid land ownership, the EFF advocates for state custodianship. The EFF said that the ANC position does not make any fundamental changes to the Constitution and it will not make any difference to fast-tracking expropriation and restoration of land to the people. It stated that the ANC position is simply a reaffirmation of the status quo.

The DA did not agree with the proposed amendments and they did not think that the Constitution has to be amended. They expressed concern that the proposed amendment where compensation “may be nil”, would have devastating financial implications for the country and for the property market.

The FF+ was not in favour of expropriation without compensation. However, the ANC felt that the FF+ were open to engagements and commended the FF+ for asking questions that would assist the Committee in moving towards consensus.

The parties agreed to submit revised versions of their submissions to one another and to continue deliberations at the next meeting.

Meeting report

Opening Remarks
The Chairperson was happy that the Members were all well amid the terrible pandemic. He reminded the Committee that it had agreed to look at section 25 as a whole, because its subsections are interconnected and interrelated. They have also agreed that democracy is both representative and participatory, therefore as public representatives they do not have a monopoly on wisdom. The Constitution enjoins the Committee to conduct public hearings, to ensure that the people speak for themselves. The Committee has reached the stage where it now really has to drive this process to a closure. All political parties have been afforded ample opportunity to interact and conduct bilateral – the plain is now levelled for the Committee to move forward. Perhaps the Committee should take stock of where it agrees or still disagrees, to see how it will manage those differences in such a way that it moves towards some consensus.

The Committee has identified the question of state custodianship. He thinks that when they deal with some of these matters, they should remember that they are not rewriting the whole Constitution and they are not changing all the laws of the country. The laws of the country are very clear in that it allows public ownership, private ownership and communal ownership, so he thinks that debate has been exhausted. The question of the courts has also been exhausted, because the Committee is not ousting the jurisdiction of the courts, but the courts retain their responsibility to come into play when there is a dispute. The responsibility of expropriation is the terrain of the executive and he thinks that there should not be any question about that. In his view, the only area where the Committee still has some challenge, is Section 25(7). Parties must express themselves on that issue so that they can see if they are still differing, how wide the differences are and how they will manage that. The other question that has been well articulated is that of “nil compensation” and “without compensation”. The Committee should not repeat what has already been exhausted, but should try to move towards closure on this. 

Mr S Gumede (ANC) asked if all parties were present as it would be interesting to know that if Members find themselves closer to each other, it is important that all parties are present.

The Chairperson replied that he noticed that the FF+ and the DA was present, but he does not see the EFF, IFP or ACDP.

Mr Vhonani Ramaano, Committee Secretary, clarified that Mr Shivambu has joined the meeting and the only apology received was from Ms Mahlatsi as she was unwell although she was present on the virtual platform.

ANC revised amendments
Mr V Xaba (ANC) said that he would present the ANC’s amended position, following the discussions in the bilaterals with the different political parties. The ANC believes that negotiations are a process of “give and take”. When one enters a discussion, one must be willing to be influenced and, in that way, one accepts that one may walk away with a different position than when one first entered the discussion, at a bilateral level. The ANC really wants this process to move forward and to conclude with everyone on board. It is a constitutional amendment that requires the support of two-thirds in the National Assembly and six provinces in the National Council of Provinces (NCOP). No single party, going it alone, can master the two-third majority. Therefore, parties need to find each other for the good of our country; that is the spirit with which the ANC has entered into discussion with political parties. The ANC has had a bilateral with the DA and they have also had a bilateral with the FF+…..

Mr N Shivambu (EFF) interjected and asked that with due respect, the Committee should please get the essence of the ANC position. The Committee has taken note of the bilateral. What is the reason for having discussed that for the past five minutes? Mr Xaba should get to the point.

The Chairperson replied that with due respect, the political parties have had bilaterals and the Committee needs to know if those bilaterals took place before discussing the substance. Mr Xaba is quite in order. He asked Mr Xaba to proceed.

Mr Xaba continued, and said that the ANC has had bilaterals with the FF+, DA, IFP, ACDP and three bilaterals with the EFF, as those were the parties that responded to the ANC invite. He would present the ANC revised position, so that Members can see where the other parties have also been influenced by the bilateral discussions. He asked that the other parties also present to see how far they have moved since their last proposals.

Adv Charmaine van der Merwe, Senior Legal Adviser: Constitutional and Legal Services Office, Parliament, displayed the ANC legal position and Mr Xaba read it out.

Paragraph 1(a): Subsection 2(b) remains unchanged from what the ANC has previously presented. It reads “Provided that where land and any improvements thereon are expropriated for purposes of land reform as contemplated in subsection (8), the amount of compensation may be nil”. This proviso comes immediately after the word “court”. He read the proviso in full, so that it is clear to the public that they are not ousting the role of the court.

Paragraph 1(c): Subsection 3A: This is a new insertion. Subsection 3A reads “For the furtherance of land reform, national legislation must, subject to subsections (2) and (3), set out circumstances where the amount of compensation is nil.”

Paragraph 1(d): Subsection 4A:  The insertion of Subsection 4A reads “The land is the common heritage of all citizens that the state must safeguard for future generations.”

Paragraph 1(e): Subsection 5: Mr Xaba said that this substitution now reads “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.”

Mr Xaba concluded the ANC revised submission and thanked all the political parties that enriched the submission in the spirit of “give and take”. He welcomed what other parties will put on the table.

The Chairperson said that he hoped that the principal would be happy to hear that the ANC is also prepared to “give and take”.

EFF comments
Mr Shivambu said that the EFF fundamentally disagrees with the ANC revised position. The EFF would never agree to anything that says “subject to compensation”. Anything that says state custodianship is only for “certain land” is also problematic, because it also states that legislation will be established to foster that. It does not categorically state that the state is custodian of all of South African land.

To update the Committee on the EFF approach, the EFF had realised that the engagements with committee members on a bilateral basis have not been very useful because the majority of the time the ANC present are not decision makers, they still have to consult at a different level. The EFF has engaged the top six officials of the ANC on the latest developments, where it was agreed that they would sit down and discuss. If that discussion does not bear any fruitful consequences, then they would just have to agree that they do not have a common perspective on the amendment of Section 25. The EFF secretary-general, Mr Marshall Dlamini, had indicated that this coming Wednesday 23 June, they would have much more substantial deliberations on what constitutes a common approach. In all fairness and with due respect, the engagements that have taken place thus far have not been fruitful, because in many instances there had to be deferment to senior leadership. The EFF has thus thought that they should directly engage with the leadership of the organisation, so that they can know what to do.

The EFF is fundamentally opposed to the current proposed framework, which is presented as if it is a compromise or an outcome of the deliberations. The mention of custodianship is opportunistic and it does not reflect what the EFF has said should be articulated as custodianship. The EFF’s categorical demand is that land custodianship must be established in the Constitution. To foster that environment, the EFF would then say that that there should be redistribution legislation to state how redistribution will be put in place. EFF had clarified several times that custodianship is not nationalisation of the land. He had heard the ANC President in interviews confusing custodianship with nationalisation, but it is not the same.

The EFF had clarified this several times and if people refuse to accept that it is okay, then they should just agree to disagree. He assured the Committee that post-Wednesday next week, Members will know whether they are coming or going in terms of this process. If there is disagreement, it is okay, Members will then see how else to deal with the land question. There are so many options. People have been taking back the land and maybe it should be elevated much more, in a radical and decisive mechanism, if the politicians do not want to agree on a simple and straightforward approach.

The Chairperson said that he does not want the Committee to debate on the basis of press reports. He urged the Committee to confine the discussion to what emerges between themselves, because the people referred to in the media are not here to answer whether they are understood or misunderstood.

ANC comments
Ms R Lesoma (ANC) said that the Committee should take note of what has been said thus far. The decision for bilaterals was taken in this Committee and at this level. The EFF leadership happen to be Members of Parliament, she does not think that this is the ANC’s problem. If the EFF feels that the bilaterals are obstructive and demanding then that is not the way that she understands bilaterals to be. The Committee needs to be very responsible. Mr Shivambu engaged with the ANC position, instead of saying what its position is as informed by the bilaterals. He has said that the EFF has decided to take the process outside the parliamentary process, which has been agreed on; there is no problem with that. In terms of the EFF’s input, talking to deprivation, the ANC’s response is that deprivation is necessary for public purpose, it cannot be done away with. Members have used the mineral rights legislation, which has also been engaged on previously. If the EFF feels that property may also be expropriated without compensation, the ANC is against that as it goes against its policy, just as the EFF also wants to enforce its policy. The ANC is addressing the land, not all property. It is also important that the public knows that the ANC is dealing with the land and not all property, and if they want it to engage on property, then it will do so. Referring to the EFF’s proposed deletion of Subsection 3, the ANC does not agree with that as it is not in line with ANC policy. The ANC policy allows for compensation under certain circumstances, taking note of the material conditions.  

DA comments
Prof A Lotriet (DA) said that she had a problem with the way in which Mr Xaba referred to the purpose of the bilateral – which was a problem right from the start. The function of the bilaterals was not to get a two-thirds majority, that is a wrong premise to start bilaterals on. The focus and premise of the bilaterals should have been what is in the interest of the country and what is in the interest of the people of the country, and not for the ANC to get a two-thirds majority.

Besides that, having looked at the proposals now, she reiterated that the DA position is that they do not agree with the proposed amendments. The DA does not think that the Constitution has to be amended. The DA is still opposed to the substitution of Subsection 2(b), “Provided that where land and any improvements thereon are expropriated…” and that the compensation “may be nil” – the DA cannot support that.

She had said last week that the financial implications of this could be devastating. At this point, they do not know what the projections are of the financial and economic implications for the country as a whole and for the property market. Subsection 2(b) must be read with Subsection 3A, which makes it even more concerning, because the conditions are left to the executive or to national legislation, where there is a much lower threshold. The DA cannot support Subsection 2(b) or Subsection 3A.

What the ANC is proposing in Section 25(5) is quite problematic, because it totally changes the meaning and intention of the writers of the Constitution. In its original form it states “within its available resources to foster conditions which enable citizens to gain access to land on an equitable basis.” That is correct, the state should foster conditions to enable all citizens to gain access to land. It is now a qualifier to foster conditions to enable custodianship even if the state only own certain pieces of land. It now takes away the total meaning of the original intention, so the DA cannot support this.

Dr C Mulder (FF+) thanked Mr Xaba for putting the ANC views on the table so that Members can take note of them. None of the Members can speak on behalf of any other party. He takes it that the proposals presented by Mr Xaba is the official ANC position. But listening to Mr Shivambu, it seems there may be some other views on the ANC’s side. He hopes to hear those views next Wednesday. Before the Committee engages further, he asked for clarity on the views put on the table at this moment. He asked if this was the official view of the ANC as a political party. This process was supposed to have been finalised at the end of May. It was then argued and requested by Mr Shivambu on behalf of the EFF that the Committee should extend the time and give more time to bilaterals. There were some bilaterals, but the Committee is now being told that those bilaterals did not deliver the necessary results as the people representing the ANC were not acceptable, as it seems, to the EFF. He asked why the Committee should proceed when they do not know if this is the official position of the ANC.

Ms Lesoma replied that they are representing the ANC and that is the position of the ANC. The rest is not part of this meeting.

The Chairperson agreed with Ms Lesoma. The ANC has deployed its members to Parliament and those members are seized with these questions. The agreement on bilaterals is that all political parties reserve the right to touch base with their principals, which he believes is what the ANC has been doing as well as all other parties. The suggestion that there is another ANC position, which must be sourced before the Committee proceeds is actually out of order. There is only one ANC and there is one ANC position. If the ANC wants to communicate anything to its deployees, it will do that through its deployees, not through third parties. So, this process proceeds and he hoped that the fact that they need a two-third majority to pass this legislation does not give any party the right to blackmail others, to say that they should give them what they want or else they will not cooperate. That is not the spirit with which the Committee will conduct their business. He asked Dr Mulder if his question had been answered.

FF+ comments
Dr Mulder agreed and said that it was very clear and clarifies the ANC’s position. He just needed some clarity on that. He now understands that the position put by Mr Xaba is the official ANC position and that is why the Committee is discussing it and it should proceed. How this process would be taken forward is in the Chairperson's hands and if there are going to be bilaterals on any other level, that is neither here nor there. Referring to the proposals, the FF+ is not in favour of the notion of expropriation without compensation, in the sense that it has been put in these proposals.

On compensation that “may be nil” and national legislation is also problematic, as the FF+ believes that national legislation should not be the place. Even if one wants to go that route, it should be expressly indicated and stipulated in the Constitution under which circumstances that would even be an option, not in national legislation.

On the insertion of Subsection 4A: “The land is the common heritage of all citizens that the state must safeguard for future generations”, he said that this is just a statement, for which he posed two questions to Mr Xaba. Firstly, what does that mean for people who are land owners in South Africa who are not citizens and what effect does that have on their ownership? Secondly, what does it mean in practice that the state must safeguard the land for future generations?

ANC comments
Mr S Gumede said that he wanted to highlight something that other parties might not be aware of. Since discussions have started, he had noticed that the ANC is the only component that has currently accommodated the views of others, which in fact has impacted on a slight change or change from the positions the ANC had the last time.

He remembers that the DA had raised a concern about the role of the court and the ANC went back to panel-beat the clause such that it is trying to meet the DA halfway. Whether the DA is happy or not, the ANC has done something to that effect. In the original discussions, the ANC had no concept of custodianship; it was a concept raised by the EFF. However, the ANC then went back to panel-beat its position to accommodate the EFF and today the ANC presented a clause to cover custodianship. Whether the EFF is happy or not, the ANC has attempted to accommodate the views raised by other parties.

 He has not seen any other party attempt to move from its position to try and accommodate the ANC views. On the question by Dr Mulder if this was the final ANC position, the ANC responded it was. However, they are keeping their ears open during the discussions that are being advanced. If there is ever a need or requirement for them to panel-beat some of the clauses and come back to present – to accommodate some of the Members views – that would be well and good for the ANC to have done. He wished that the other parties would learn from the ANC and be in the position to accommodate some of the views that are presented by the ANC. He is thankful for the energy taken by the ANC to accommodate other parties.

The Chairperson thanked Mr Gumede for emphasising the principle of “give and take” in negotiations and observing that others are not coming out to accommodate. He hopes that this will assist other parties to reflect on their positions.

Mr Xaba said that the ANC representatives in this Committee are engaged in a parliamentary process and the ANC will speak via its MPs and in the relevant parliamentary committee. They will not speak via any other political party. If there is anything that the ANC wants to convey to Parliament, it will do so via its MPs, right down to the relevant study group.

In response to Prof Lotriet, he said that the ANC’s discussion was not to garner the two-thirds majority, otherwise, for example, they would have not extended the bilaterals to the FF+, as the FF+ has ten Members in Parliament. The ANC and FF+ would not give the two-thirds majority, but the ANC has taken to heart that it is critical to hear what they have to say and what their comments are on the process that is being engaged on. The ANC has worried what it needs to do to accommodate the FF+ concerns; the ANC has expected it to do the same, hence the spirit of “give and take”. The ANC also went to the ACDP, that has about four or five Members in Parliament. It is not the ANC’s machinations – but it is this Committee that has decided on the process of bilaterals. He reiterated that the two-thirds is the majority required to pass this amendment, and in the NCOP there would need to be six provinces supporting the Bill.

In response to Dr Mulder’s questions, Mr Xaba said that the land being the “common heritage of all citizens”, would refer to its literal meaning. It is a natural resource, and because it is a natural resource it is the heritage of all South Africans. How else can one put it, other than saying that? The land is not the common heritage of the world, it is not the common heritage of the continent, but here it is talking about that which God gave the people of South Africa and no one else. If Dr Mulder has another suggestion to make, he is invited to put it in black and white, because the Committee is still continuing with discussions. Dr Mulder is invited to comment on how the Committee can improve this, but for now this is what the ANC has put forward as its position. Dr Mulder also referred to that phrase as a “statement”, which is not true. The ANC has said that the land is a “common heritage of all citizens that the state must…” so it is putting an obligation on the state to safeguard the land for future generations. The ANC has therefore placed an obligation on the state. The Bill of Rights is about rights and/or obligations, so therefore, there is a purpose built in that provision, which is unlike the provision that it was before. If Members are commenting on what it was before, then it was a statement, which gave neither an obligation nor a right to anyone, but that has been clarified.

Mr Xaba referred to the DA and said that negotiations do not mean that one has to be in the same room, one can even communicate with each other in writing. He suggested that the Chairperson give the DA 72 hours from today to write to the ANC if it still has any concerns. It is a pity that the ANC is getting to know the DA’s concerns in the meeting when the opportunity was given for parties to conduct bilaterals, but this is the nature of this process. The ANC thinks that the Committee has moved significantly from where it was previously. None of the parties have done so, but the ANC is still inviting them to enrich their submission – but for now, this is the ANC position following the discussions with the different political parties.

Ms Lesoma urged the Members that if they are serious about changing the land ownership patterns of this country, then they must be seen doing that. Members cannot just pledge their commitment without practically being seen to do that. She also urged that when Members read Section 25, that they do not read subsections in isolation of each other. In terms of the compromise Bill that went for the public participation process, the ANC has amended its proposal for Subsection 3A, in that it is relieving courts from doing the responsibility of the executive authority. The courts would only come in if there is a disagreement between both parties. From the initial compromise Bill that went out for public participation, she quoted: “the amount of compensation is nil”. This is still being retained, but this is read in conjunction with Subsection 2 and 3.

On national legislation, Ms Lesoma said that the actual text in the Constitution states that there must be legislation, which the ANC is reinforcing to state that the conditions where expropriation is nil, must be determined in national legislation. It cannot be put in the Constitution itself, because it is too elaborate. This will also deal with the scientific moralities, on how the expropriation arrived at being nil. The ANC is trying to look responsibly at the original text and what they are trying to achieve, while questioning if they are bringing all South Africans along. Being mindful and going to the extreme, the people who took the land have never paid for anything but it is understood that there needs to be a democratic country, so that must be considered. That is why compensation “may” be nil, while reinforcing the importance that there will be those circumstances that compensation must be “nil” although some parties may disagree. The ANC respects when other Members say that they do not want any amendment whatsoever. They have probably benefited a lot from the existing text as it stands. The ANC is making it explicit to ensure there is a change of land ownership patterns in this country.

If some Members do not trust that what has been said is true, then it will be beyond the means of the ANC to explain itself. The ANC has explained the manner in which it has addressed custodianship in Subsection 5 and the rationale. The ANC respects if other parties do not trust it; nevertheless, it is honest and sincere. Reiterating what Mr Xaba said, the ANC is not chasing the numbers, but it is chasing to transform the land ownership patterns, more than anything else. It cannot remain the same as it was before.

Mr P Moroatshehla (ANC) said that the Chairperson's opening remarks had indicated the nature of the South African state, that it is both a constitutional and a participatory democracy. He suggested that they should not abuse that, meaning that South Africans have given the Committee an opportunity to correct the ills of the past, but if every meeting means that they are just going to keep on talking left, right and centre, without providing a workable solution, then the Committee will not be fair to the nation, it will not be fair to Parliament or Members and it will not be fair to society at large. All Committee members must understand that the Fifth Parliament was very sombre when it resolved to constitute this all-important Ad Hoc Committee.

The mandate was very clear – it was to go and amend Section 25 of the Constitution by making explicit that which is implied. At least the FF+ is open to talks and negotiations; but he finds it a little disturbing, if not insulting, that the DA, in particular, said that their mandate should not change anything. This is the same as if they were to tell the Fifth Parliament that they are not going to be part of the Ad Hoc Committee. The DA is proposing that nothing should change, in other words, there is no need for this Committee. The DA has participated in the public hearings, in both oral and written submissions, but now that the Committee is supposed to wrap up, the DA says that nothing must be amended in the Constitution.

Mr Moroatshehla said in response to Mr Shivambu that given both their backgrounds, they know very well that the nature of negotiations is give and take. They cannot approach a challenge of this nature with a hardened position that says: “it is my way or the highway”. Mr Gumede correctly indicated that with time the ANC has been engaging with the willingness to shift from their initial position. For example, on custodianship, the ANC has been open to say that its approach would be a hybrid ownership, which takes into consideration that the land has to belong to the public, private and communally; by saying so it covers almost all and sundry. This is the current ANC position. The people have been dispossessed of their rightful land. The Committee has been dwindling and meandering far too long, while the people grow impatient. The fact that this is a constitutional and participatory democracy will one day lapse, when people would use force to reclaim what rightfully belongs to them.

The ANC had clarified its position on the courts, which he believes the DA must be comfortable with. On Subsection 7, the ANC has also been open and remains to be persuaded. Mr Xaba had presented the ANC position, but where are the positions of the other political parties? The other parties always respond to the ANC’s written position, but the ANC cannot see what their position is. The other parties are critical;  they do not want to put their position in a written form, so that the Committee is able to see where the panel-beating is necessary. He concluded that the ANC remains open to any form of persuasion from any party, as long as at the end of the day, the Committee has addressed this piece of legislation, so that the land will be expropriated without compensation. Other nitty-gritties may be a thing of tomorrow, but the Committee must amend according to their mandate. This mandate can no longer be delayed. 

The Chairperson said that history is very important in the resolution of conflicts. There were two problems facing South Africa. The one problem was the 'native question', which was resolved by the Freedom Charter when it said that South Africa belongs to all who lives in it. Therefore, when the 1996 Constitution was adopted, the vote was given to all South Africans, so the 'native question' has been resolved. The second problem is the land question; that has also been resolved by the Freedom Charter when it said that South Africa belongs to all who live in it. However, as matters stand today, that problem has not yet been resolved. This process the Committee is engaged in seeks to address the land question.

In response to Dr Mulder’s question about heritage, Dr Motshekga referred to the Freedom Charter and said that South Africa belongs to all who live in it and obviously if they stand by that position, it means that South Africa is our heritage, but that heritage is not limited to us, it extends to posterity. The state run by the politicians has a duty to protect this heritage for future generations. So, this is just an academic matter that it is engaged with and it should not hold the Committee back. When saying that South Africa is the heritage for all of us, this does not refer only to the living but it also refers to the unborn children that are described as posterity. He suggested that such questions should be answered by the policy documents that exist and the Constitution.

On national legislation, Dr Motshekga said that national legislation is an enabling legislation, but one cannot incorporate everything that must be done through national legislation in the Constitution; the Constitution would not be workable. The Constitution provides a framework, but cannot foresee and provide for everything. If other things are provided for in national legislation it will be much easier to amend and would be much better. He does not think the Committee should be debating on whether it needs national legislation, because this is provided for by the Constitution itself. As Mr Moroatshehla said, public ownership, private ownership and communal ownership is settled law, but there are imbalances in this ownership that need to be addressed. If the Committee fails to do so, it means that the Committee is opting for the Zimbabwe solution.

It will be a sad day, if what happened in Zimbabwe comes to South Africa, because it will boil down to a black-on-black conflict. The founders of this democracy have helped the Committee and have provided a way of resolving disputes peacefully. This generation cannot move away from the negotiated settlement of disputes and open the door to violent resolutions of disputes. He appealed to Members that the ANC has said that this process is “give and take”. The ANC has given and also wants other parties to give and not just complain about what other parties are doing.

He commended Dr Mulder, because he pointed out questions and sought clarity; he is really engaging and is helping the Committee move forward. He urged Members to embrace the spirit of working together to find a solution. This problem is not the problem of the EFF and ANC, but this is a South African problem and all parties need to find a solution to this problem. No party should blackmail another in this process. They must work together to find a solution to this South African problem and that solution must be in the best interest of all South Africans.

The Chairperson asked if anyone had raised their hands.

Ms Lesoma noted a gadget called “Tecno Spark 5 Air” had raised a hand. There was also a member named Mr Sinawo Tambo who had raised a hand.

The Chairperson noted that and thanked Ms Lesoma for assisting.

Adv Ramaano said that he knows that Mr Sinawo Tambo is an MP. He does not know who the person is with the gadget labelled “Tecno Spark 5 Air”. He suggested that the person should identify him/herself before the Chairperson gives him/her the platform.

The Chairperson asked if the MP was a Member of this Committee.

Mr Ramaano replied that he is not a Committee member but he is an MP. He can participate as an MP.

Mr Moroatshehla said that he did not agree that any MP can participate in this Committee. Some precedents have stated that MPs were taken out of meetings when they wanted to participate. In his view, they can only observe but not participate. He suggested that if the Chairperson opened this Committee to all MPs, then this will not be able to be controlled.

Mr S Tambo (EFF) raised a point of order.

The Chairperson permitted him to proceed.

Mr Tambo said that Mr Moroatshehla's view is not coherent with the rules; whatever precedent had that perspective in the past is incorrect. If they did not intervene in the past to correct that, this Committee cannot be subject to that failure. MPs are allowed to engage in committee meetings and are allowed to attend them, especially on behalf of other Members. Mr Shivambu had indicated that he has a flight to catch, so he is here on behalf of the EFF. It would be grossly unfair to be subject to the failure of people to intervene against an incorrect precedent. He strongly disagrees with that premise.

Ms Lesoma said that she had assisted the Chairperson to recognise Members. When Mr Tambo is given the chance, he will state that he is representing Mr Shivambu, because the Committee needs to know who are stepping in for other Members. There needs to be a flow of engagement and the Committee should not be kept back. She noted that the other person had just logged off, which is minus one challenge.

The Chairperson said he agreed with Mr Moroatshehla. If the Committee is opened to all MPs, that would be a big problem. Parliament appointed the Ad Hoc Committee and allocates proportional numbers to different political parties. However, he understands if there are alternates who step in, which is an established practice; but opening the Committee to all MPs would not be correct. There is no problem now because Mr Tambo is an alternate. Alternates are allowed and it is an established practice. He asked Mr Tambo to proceed.

EFF comments
Mr Tambo said that they might have intercepted each other, because the Chairperson said that the ANC has effectively posed a challenge to other political parties in terms of a “give and take” of what constitutes a negotiation, when one is constructing policy. For the sake of the public and for Members of this Committee, he refutes what Mr Moroatshehla said about the EFF not having presented a written submission to this Committee and that the EFF is only refuting positions put forward by the ANC – that is not true. In bilaterals and in this Committee, the EFF has presented substantive arguments as to what amendments it thinks should be made, to enable expropriation of land without compensation, for equal redistribution and custodianship of the state.

It is a misrepresentation to say that the ANC had either undertaken a “give and take” process or shifted from its original position. If one understands the Constitution as it stands and the ANC position, there is no significant shift from the status quo as it exists. To say that the ANC has conducted a “give or take” or shifted from its position, for example, on custodianship by stating public ownership, private ownership and communal ownership, is nothing new. Those are the conditions as they stand and exist currently. To say that the ANC has made a compromise or a shift in its position to allow the compensation to be nil, is not true when one looks at what the Constitution states as it stands. For the sake of the public, the ANC should not represent the reaffirmation of the status quo as fundamental shifts in policy position. If the ANC takes that position, then it is going to make the rest of the Committee seem unreasonable and as not engaging in negotiations.

The EFF is simply saying that the positions brought forward by the ANC does not seem to make any fundamental change to the Constitution. It will not make any difference and it will not fast-track the land expropriation programme in South Africa to alleviate the crisis of people having land restored to them. It is simply a reaffirmation of the status quo, which is the point of disagreement. The EFF’s point of disagreement must not be characterised as advocating for an approach that was perhaps taken in Zimbabwe. As it seemed to have been suggested, the EFF has never said that the land expropriation process must take the approach undertaken in Zimbabwe. There is nothing violent about amending the Constitution which itself allows for its amendment. There is nothing that infringes the rights of others to amend a constitution that has provision for amending itself.

The EFF's amendment is not a violent process. To allow for state custodianship is to say that land must be in the custodianship of the highest representative body of the will of the people, which in any measurable form is the electorate. There is no other way of determining the democratic will of the people outside of an electoral mandate. If the electorate mandates them, or if they along with another party constituting the two-thirds majority resolve to amend the Constitution to expropriate land without compensation and to enable state custodianship, there is nothing unconstitutional or undemocratic about that. It will be the mandate of the electorate being ruled by the majority of the political parties as elected by the people.

Mr Tambo said that there is no suggestion that the ANC deployees in this Committee do not represent the ANC position. However, the experience in bilaterals has made the EFF realise that it must engage with the principals directly, other than the people who are going to seek and reaffirm whether their mandate is in fact correct or not. The EFF will come back and report on that position. He just wanted to clarify the few misconceptions that the public might have picked up, in terms of the EFF not being willing to negotiate or do a “give and take”. There cannot be a “give and take” on the reaffirmation of the existing status quo – that has resulted in a slow case of lengthy redistribution in this country.

The Chairperson clarified that no one in this meeting suggested that the EFF wants to undertake the Zimbabwe option. It is only himself, who said that the failure of Parliament and this Committee to address the land question could lead to the Zimbabwe situation, because it means that the people will take the law into their own hands. He suggested that if the lawmakers are not able to resolve the land question, then the people will take the law into their own hands. He did not mean that it was the EFF or any other party’s position. He apologised if he was understood to have attributed that to the EFF, there was no intention to do that. He only suggested that if the Committee fails, then the people might take the law into their own hands and that would lead to a Zimbabwe type situation.

He is not sure if the Members have read the Ingonyama Trust judgment, because if it is said that state custodianship means that all land must be in the hands of the state, it means that the state will lease the land to the people. Then where is ownership? People have waged wars of resistance against colonialism to defend their land. Our people still know which land was violently taken away from them. Are we going to use the law ourselves to take the land from everybody, to then say that everybody must be a tenant of the state? Is that what we are saying? If that is what is being said, is that acceptable to the people of this country? He urged Members to read the Ingonyama Trust judgment and reflect further on this situation. The ANC, EFF, DA, ACDP, FF+ and IFP are parties on their own. No one can stop them from having their meetings, but all that was said is that this Committee is in charge of a parliamentary process to deal with what is before them in Parliament.

As far as this Committee is concerned, the ANC suggested that there must be a “give and take” because this Committee is seeking a South African solution, not a political party position. That is why Mr Xaba has correctly stated that the ANC had spoken to parties that have fewer numbers, because the ANC wants to benefit from their insight on this question. The ANC is not targeting bigger parties, like the DA and EFF for numbers; but it is targeting all political parties because they also represent sections of our people and the solution that is needed is the solution that will be in the best interest of all South Africans.

The Chairperson asked if there was any other input.

Dr Mulder said that it is the Chairperson's decision to make a ruling but he is not sure if the Committee will succeed in taking anything much further today. He asked if the Committee may receive a written copy of the ANC’s proposal presented today so that Members can have a look at what is being proposed in its entirety.

The Chairperson fully agreed with Dr Mulder.

Mr Moroatshehla asked if the ANC may also receive the input from the EFF, DA and FF+, including any other party on the platform, although, it appears that it is only a game of those four parties. The Committee does not know what the other parties are standing for.

Ms Lesoma said that it is safe to say that the ANC is open to any party that would like to engage. Particularly directed to Dr Mulder, she said that if he has any other questions that he would like the ANC to clarify then they would welcome those questions and the ANC would also suggest the FF+ proposal is in writing, to see how to change the land ownership patterns of this country. Other parties who are not necessarily on this platform, due to proportional representation, are also welcomed to engage with the ANC. The ANC is very patient and will wait for everybody, but they will also not be taken for a ride, where people pose their views over the ANC. There is no measuring tool, in terms of what is significant and insignificant, because the Committee is writing law not political narratives. The ANC’s position does have a serious legal implication, so she will therefore take an exception to what Mr Tambo had said, which can be debated outside. The ANC is dealing with the law, while writing the text very responsibly, not a political narrative.

The Chairperson said the Secretary will circulate the ANC’s revised version, but similarly, other parties should submit their revised versions, so that in the next meeting the Committee can assess the convergences and differences, which will help the Committee move forward. He agreed with Dr Mulder that this process cannot be taken any further today. The good thing is that between today and the next meeting, the parties would have exchanged their revised documents, which will help the Committee move forward at the next meeting.

Mr Gumede suggested giving the parties a timeframe, so that the Committee does not get delayed. He suggested that by Tuesday 22 June all parties should have exchanged their revised positions.

The Chairperson agreed Tuesday end of business was fair and reasonable for the information to have been circulated.

Meeting adjourned.

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