Draft Constitution Eighteenth Amendment: deliberations

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Meeting Summary

Video: Ad Hoc Committee on Legislation Amending Section 25 of the Constitution, 02 July 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 political parties had the opportunity to present their revised positions on the Draft Constitution Eighteenth Amendment Bill. The ANC, EFF and Al Jama-ah presented their proposed amendments to the Amendment Bill.

The ANC said that it was in favour of state custodianship of certain land for citizens to gain access to land on an equitable basis. It proposed inserting a clause to provide that where land and improvements on it are expropriated for purposes of land reform that the amount of compensation may be nil.

Al Jama-ah supported the ANC proposed amendments but made it clear that it prefers national legislation – instead of the court – to deal with expropriation and determining compensation or nil compensation so that it fast-tracks land restitution. Al Jama-ah stated that state custodianship of land should not include religious land, because for Muslims this is waqf land, it belongs to God and it cannot belong to the state. The Chairperson agreed that this was an important consideration and that state custodianship should not include sacred land.

The EFF proposed an amendment to Section 25(3) that land is a natural resource and a common heritage, which belongs to the people as a whole, under the custodianship of the democratic state. The EFF expressed that the piece-by-piece expropriation of land would be a long litigious process which will deprive the opportunity to quickly and equitably redistribute the land. It therefore emphasised the importance of state custodianship of all South African land, which would also guarantee security of tenure.

The DA, ACDP and FF+ were not in favour of amending Section 25 of the Constitution. The DA questioned the financial implications of the proposed amendments. The DA and FF+ said that the proposed amendments resulted in more questions than answers. The ACDP felt that Section 25 sufficiently provided for the restitution of land where land has been unjustly dispossessed.

The Committee will meet on 9 July to finalise the wording of the proposed amendments that will be published for public comment. This will also give political parties a further opportunity to decide if they are willing to move their position on the Constitutional amendment.

Meeting report

Opening remarks
The Chairperson said that this Ad Hoc Committee amending Section 25, has no room for winners and losers amongst it. Commenting on failure to “give and take”, it will require all political parties represented in Parliament to put the interest of South Africa and her people first. As Chairperson, he had given all parties the opportunity to hold bilaterals and to seek fresh mandates, based on the outcome of bilaterals from their principals. Today, the Committee will listen to the inputs of all political parties on each and every subsection of Section 25 to determine agreements or disagreements. If a party does not pronounce itself on any of these subsections, it will be assumed that they agree with the proposals of those who have spoken. As Chairperson, he had deliberately stayed out of the bilaterals because he represents the interest of all political parties, regardless of their size. He is obliged by the Constitution to act without fear and favour, and to consider the contribution of all political parties, regardless of their size, on their merits or demerits.

The Committee should finalise certain flagged matters. These are “deprivation versus expropriation” and the regulation thereof; “state custodianship versus multiple forms of tenure”; “jurisdiction of the courts”; “nil versus without compensation” and lastly the cut-off dates. These matters are not too complex for the Committee to resolve, provided that Members do not put their political party’s interest first but the interest of South Africa. He does not believe that the people of this country can wait another 25 years for the resolution of these problems.

Many observers have said that the current law reform processes have failed. If this Committee does not deliver the Constitutional amendment, it means that the country will be left with a long reform process which experts say has not delivered, and this will plunge this country into a crisis. He appealed to all Members that there is nothing before them that they cannot resolve if they work together as patriotic South Africans. He is happy that all parties have had more than enough time to hold bilaterals to reflect. At the close of the previous 18 June 2021 meeting, Members were asked to go back and revise their positions to come towards some consensus on these matters. The Committee should now be moving away from loose debates and concepts. After the inputs, Members should state their drafted amendments so that the Committee can engage on them and move forward.

ANC revised amendments
Ms R Lesoma (ANC) said that the ANC will present their revised position again, following the directive of the Chairperson, it will present each clause and see if there is support. For the purpose of this meeting, the ANC will not again motivate why they have inserted changes as they have been doing in the last four meetings, which Mr V Xaba (ANC) did very eloquently.

The Chairperson agreed and said that she may proceed.

Ms Lesoma said that there are no amendments to the preamble. She asked if Members agreed.

The Chairperson said she should continue and Members should indicate their disagreement.

Mr N Shivambu (EFF) suggested that the ANC present their amendments to the whole section and then Members can indicate if they do not agree.

The Chairperson acknowledged the suggestion and said that other parties can respond to the whole section. He asked Ms Lesoma if she was fine with the suggestion.

Ms Lesoma agreed and went through the its proposed amendments:

Section 25(1)
No amendments proposed by ANC.

Section 25(2)(b)
The amendments insert a few words, which now reads: “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: Provided that where land and any improvements thereon are expropriated for the purposes of land reform as contemplated in subsection (8), the amount of compensation is may be nil.’’

Section 25(3)
Subsection 3, now reads: ‘‘The amount of the compensation as contemplated in subsection (2)(b), and the time and manner of any 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 in and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.”

Section 25(3A)
Subsection 3A has been amended to read: “For the furtherance of land reform, national legislation must, subject to subsections (2) and (3), set out specific circumstances where a court may determine that the amount of compensation is nil.”

Section 25(4A)
Subsection 4A is a new insertion that reads “The land is the common heritage of all citizens that the state must safeguard for future generations.”

Section 25(5)
Subsection 5 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.’’

The ANC had no amendments for Section 25(6), (7), (8) and (9).

DA comments
Prof A Lotriet (DA) said she would comment on the amendments in terms of the Amendment Bill as gazetted, the ANC proposals as presented, and the Constitution. The DA does not propose a change to Section 25(1). In terms Section 25(2), the DA is concerned because the gazetted Bill and the ANC’s proposed amendments centre on the courts’ role in the determination of when compensation is nil, being replaced by national legislation, as indicated in subsection 3A. This takes away any protection that property owners may have when their property is expropriated. National legislation has a much lower threshold for approval and it opens the door for arbitrary circumstances in the determination of when the compensation may be nil. The Constitution as it stands provides for specific circumstances and any legislation should be measured against those circumstances to determine its constitutionality.

On the insertion of “land and any improvements thereon” that may be expropriated for the purpose of land reform with nil compensation, she said that this is extremely wide and problematic. This places the property owner at an absolute disadvantage, especially if the role of the courts is reduced, because land reform could now be used as a reason for any expropriation. She referred to the ANC’s original resolution in 2017 where it stated quite clearly that there should be no economic harm. The economic security, stability, growth of the country, as well as food security should not be affected.

Several questions would have to be answered to evaluate these proposals. Has there been any macroeconomic analysis on the effect this would have on the property market? If it has been done, who did it and what was the finding? Has an analysis been done on the financial implications these amendments would have? As far as she knows, the submissions indicated that it will have dire financial implications for the country. Is there clarity on who will be held responsible for bonds on properties? What will happen where property has been used for collateral in loans or bonds? These are factors that the Committee must have clarity on before amending to the Constitution.

Therefore, the DA does not support the proposals in Section 25(2), based on the diminishing role of the courts in expropriation on the grounds that the determination cannot be left to national legislation, which in effect provides for an open-ended list of circumstances, as well as total uncertainty of the financial implications these amendments would have on the South African property market, the economy at large and the financial sector.

Referring to section 25(3A) in the gazetted Bill, which states national legislation must set out circumstances where the amount of compensation is nil, the DA finds this too wide, too subjective and it would open it up for unreasonable arbitrary decisions with a very low threshold. The DA does not propose an amendment and proposes that it remains as is.

On the ANC’s newly proposed insertion of section 25(4A), several questions still need to be answered about this proposal. She questioned what is meant by “safeguard”. How must the state safeguard the land as a common heritage? What is the implication thereof? Is land limited from a citizen's right to own land? Does it imply that the state can decide who should have access to land and who not? In terms of what happens to land, does this give the state custodianship in effect for perpetuity? The proposal is ambiguous and is open to abuse. People can be denied tenure in the name of safeguarding land for future generations; therefore, the DA cannot support this. The DA believes that the proposed section 25(4A) should not be included, and that Section 25(4)(a) and (b) should remain as is.

On the ANC’s proposed substitution of section 25(5), the DA believes that this falls outside of the mandate of this Ad Hoc Committee, as given to it by the National Assembly. Custodianship is a substantive addition to the Bill and therefore this should be referred to the National Assembly for approval as it was not included in the Bill as gazetted in December 2019 and it should go through a process of public participation. The DA agrees with the original section 25(5) which states that “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” because it enables “citizens” in general, but the proposed amendment now limits this to “state custodianship”. The DA does not agree with the proposed substitution as it materially changes the meaning and intention.

The DA is not in favour of custodianship because it is concerned that certain land must be identified for custodianship. How will this be decided and what is custodianship of “certain land”? What will the process be? What are the inputs of the actual people on the ground? There are so many open-ended questions. The DA cannot support amendments where there are more questions than answers. She referred to the Chairperson's opening remarks and said that this Committee cannot make patriotic decisions in the interest of the citizens of South Africa if all these questions are still hanging in the air. The DA does not support the amendment of section 25(5) and believes that it should remain as is.

The DA also believes that Section 25(6), (7), (8) and (9) should not be amended.

EFF proposed amendments
Mr F Shivambu (EFF) presented:

Section 25(1)
The EFF proposes that subsection 1 remain as is because deprivation can be used through the context of law.

Section 25(2)
The EFF proposes that it should read: “Property may be expropriated without compensation. (a) Only in terms of law of general application; (b) for a public purpose or in the public interest”.

Section 25(3)
The EFF proposes the deletion of the entire subsection. If there are circumstances that deal with compensation or nil compensation, the EFF states that property may be expropriated without compensation, which will be subject to a law of general application. The EFF’s proposal which has been consistent since the beginning of this process is that Section 25(3) must fall completely.

Section 25(4)
Mr Shivambu explained that because the EFF proposes the deletion of Section 25(3), the current subsection 4 in their proposal then becomes Section 25(3), which retains the first two parts that is (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.”; and then it will add (c), which would read: “(c) Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic State.”. He said that custodianship must be established in this constitutional amendment and that it should not be said that it will be established later through legislation.

Section 25(5)
Mr Shivambu said that this would now be the EFF’s subsection 4, as it proposed the deletion of subsection 3. The EFF’s proposed subsection 4 would read “The State must take reasonable legislative and other measures which enables state custodianship and for citizens to gain access to land on an equitable basis.”

Section 25(6)
The EFF proposes no amendment to subsection 6 but this would appear as subsection 5 in the EFF’s proposals.

Section 25(7)
This would appear as subsection 6 in the EFF’s proposals which would read: “A person or community dispossessed of property 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.” This removes reference to the date “after the 19th of June 1913” but still makes sense in terms of what would happen without reference to the date.

Section 25(8)
This would appear as subsection 7 in the EFF’s proposals and is retained without changes.

Section 25(9)
This would appear as subsection 8 in the EFF’s proposals and would read: “Parliament must enact the legislation referred to in this section.” In terms of all the aspects of custodianship, land tenure and restitution, this would mean that there would have to be legislation that would be utilised to effect that as a law of general application.

The consequence of this would mean that through legislation there would be a clearer contextualisation of the custodianship and thereafter redistribution of land on an equitable basis. There must be legislation that secures tenure for those that are occupying certain properties for residential, agricultural, industrial, religious or recreational purposes or for whatever other purposes the land or property is occupied. Tenure will be dealt with through separate legislation and the Constitution already gives direction on that level of security of tenure. The EFF is of the view that custodianship should be established in the Constitution, and not to say that it will be looked into case by case or that it would be certain parts of land. The EFF thinks that it should guarantee custodianship of all of South Africa’s land on behalf of all the people, and this still has to guarantee security of tenure for those that are using land for various purposes. Custodianship is not nationalisation of land, but the state is custodian on behalf of the people. The Agri SA v Minister for Minerals and Energy 2013 court ruling clarified the distinction between custodianship and nationalisation of property or land when it dealt with minerals.

The Chairperson referred to Mr Shivambu’s comment about land and mineral resources being under state custodianship, but at the same time stating there must be security of tenure and while accepting that there should be restitution. He asked if this meant that land must be given back to the state even where land was already restituted to people and where people have been given security of tenure.

Mr Shivambu replied that the EFF is establishing custodianship and if there is an old order title such as a freehold title given through restitution, this would be converted to the new tenure system, that would acknowledge that under normal circumstances and under different conditions, that land is under state custodianship but as that land has been in use for residential or agricultural purposes, that tenure would be converted into a different tenure system; in the same way that has happened with mineral rights.

When the Mineral and Petroleum Resources Development Act (MPRDA) was enacted into law, there were people who were already mining and they had to convert their old order rights into new order rights, but they continued to do mining in their own spaces. This point is made because if property or land is going to be expropriated piece-by-piece, this would be a long litigious process. This would deprive the opportunity to quickly and equitably redistribute the land because anyone whose land is targeted for expropriation is going to take this to court. As seen in the Department of Public Works and Infrastructure submission, that process sometimes take a minimum of seven or eight years to redistribute just one piece of land.

Establishing state custodianship would still guarantee security of tenure for those who are using the land. It is irrational if a person has 30 000 hectares of land which is not being used for anything and for that person to want to maintain ownership and control of that land. The state should then rightfully say that it needs to give that land to other people for equal use. This would also make it easier on the question of public purpose and in the public interest. One of the frustrations of the state was the inability even to put public infrastructure across individual people’s farms, who would say that the state cannot put power lines, roads or water projects on their properties, because it is fenced and they have a title deed given by their great-grandfather called Jan van Riebeek who conquered and took the land from the forefathers, and therefore the state cannot put public infrastructure on their land, because it belongs to them.

This needs to be changed decisively for public purposes and public interest. There must not be negotiations in utilising this type of land. These are the necessary and long-overdue reforms that have to be effected so there is a clearer legislative framework, that will guide a new discourse on land reform. The piece-by-piece expropriation and redistribution approach has dismally failed and will never succeed, and will take another 50 years to redistribute just 30% of South Africa’s land. This is the context for the EFF proposal for state custodianship. Security of tenure is otherwise guaranteed for those that are occupying for residential purposes in particular.

The Chairperson thanked Mr Shivambu for the clarity.

ACDP Comments
Mr W Thring (ACDP) referred to the Chairperson's opening remarks that political parties who do not comment, it would be taken for granted that they accept the position of the ruling party. He asked what about the political parties that were not present.

The Chairperson clarified that he did not say that those who do not express themselves will be bound by the position of the ruling party, but what applies across the board is that if one party makes a proposal and another party does not counter it, that means that the proposal stands.

Mr Thring continued and said that the ACDP position is a fairly simple one. From the outset, the ACDP has had a challenge with the amendment of Section 25 of the Constitution. The view of the ACDP is that the amendment of the Constitution is not necessary. However, the ACDP understands that the mandate was given to this particular Committee to look at reviewing Section 25, and the ANC has done that together with the EFF, and maybe just one other inclusion. The ACDP position is that from a legal and constitutional perspective, it was certainly not necessary to amend Section 25 of the Constitution.

The ACDP certainly does not view expropriation of land with nil compensation as the route that should be followed. Hence, with all the amendments made by the ruling party and EFF, the ACDP position still stands that Section 25 deals adequately with restitution and it is possible to ensure that there is equitable restitution where necessary, and where land has been unjustly dispossessed from our people in South Africa. There is no need to amend Section 25. The processes would just need to be in line to ensure that due process is followed for what is already in Section 25, as well as other laws that allow for the expropriation of land, where land can be equitably and justly redistributed. In conclusion, the ACDP position is that it does not accept the amendments put forward for Section 25 to be changed.

The Chairperson asked Mr Thring if this implied that all the people who were violently dispossessed of their land should then buy that land back through the state coffers.

Mr Thring clarified that he had not said that. The ACDP view is that there are adequate procedures where if land was unjustly dispossessed there is a court process that can be followed within the ambit of Section 25 of the Constitution, without amending it. The ACDP does believe that where land has been unjustly dispossessed in South Africa, there are sufficient measures within the Constitution, that would allow for that particular land to be restored, even if the court determines without compensation if necessary.

The Chairperson thanked Mr Thring for the clarity.

Al Jama-ah comments
Mr G Hendricks (Al Jama-ah) said that the Al Jama-ah proposals will be sent but he would like to speak on its proposals. The constitutional amendment on expropriation is before Parliament which is probably one of the most contested pieces of law in South Africa’s history. Al Jama-ah has carefully looked at the ANC proposals after three years of hard work, where the ANC has taken into consideration the input of other political parties. Al Jama-ah supports all the ANC amendments. Land reform is wrongly premised on European instead of African jurisprudence of tenure, and this must be modified so that there can be proper land reform. There is a misdistribution as a result of wrongful dispossession of land, and this must be addressed by African jurisprudence and not European distribution.

When speaking about African distribution, South Africa is not Africa but it is only part of Africa. After giving support to the ANC’s proposed amendments, Al Jama-ah is concerned that Section 235 of the Constitution on “self-determination” must be taken into account, because it should not have an impact on the ANC amendments, which Al Jama-ah does support. Al Jama-ah does not want Section 235 and other relevant sections to trump the struggle to redistribute land that was wrongly acquired.

On Section 25(2), Al Jama-ah agrees with the ANC amendments, however, Al Jama-ah believes that the compensation or nil compensation should not be approved by court but should be approved by legislation. The reason for this is the Committee has been busy with this amendment for three years, the country is waiting and the Committee needs to fast-track distribution. If this matter is in the hands of the court, then every individual property that is being looked at may take years, and the courts will be inundated with applications and the distribution process will never get started. If there is legislation, this will speed up the process, because there are checks and balances in Parliament, where one can submit oral questions, written questions, call for a debate and make petitions. All of this is not possible with the courts, because one would need to wait to be on the court roll and wait one's turn. Whereas if there is legislation, Parliament can play an active role to fast-track restitution.

Mr Hendricks acknowledged that Members should not speak for their party but should rather speak in the interest of the country. However, his faith is Islam and he cannot ignore that this governs his beliefs, not necessarily his party’s beliefs. In Islam if land had been wrongfully distributed, even by a few sands, then those sands must be given back to the rightful owner and the person who would redistribute it must go around his neck three times as punishment, which is very radical but he just wants to put on record that the wrongful dispossession of land must not be treated as kids stuff, it was a serious violation and it was a crime against humanity, and in South Africa a crime against Africans.

On Section 25(3), Al Jama-ah agrees that national legislation must decide the steps for which land must be expropriated and decide the compensation which can be from R1 billion to nil. However, where Al Jama-ah differs to the ANC position is that national legislation must be approved where all political parties are represented and it is subject to a two-thirds majority. These amendments require a two-thirds majority, and the legislation that follows Al Jama-ah feels strongly that it should also be subject to a two-third majority or more.

Perhaps that would satisfy the EFF, as Al Jama-ah wrote to the EFF and pointed out that there will be a second bite at the cherry when the legislation is drafted and approved in possibly another nine months’ time, then all the EFF concerns can be addressed. He is not making a plea to the EFF to support Al Jama-ah’s position which is in line with the ANC amendments, but he is merely asking the EFF not to waste three years of hard work to then start again from scratch. In any case, the governing party can implement subsection 1, 2 and 3, without much ado, where it will just do with the majority vote; whereas if the EFF and other parties support these amendments, then there would certainly be another bite of the cherry. The ensuing legislation can be looked at more closely and this Committee can cross the t’s and dot the i’s.

Mr Hendricks said that Al Jama-ah does not have a quarrel for land to be in possession of the state but this must not include religious land because, for Muslims this is waqf land, it belongs to God and it cannot belong to the state. When Turkey took over the Ottoman Empire, it confiscated all waqf land and it then belonged to the state. Al Jama-ah does not agree with that position and feels that that must be taken in consideration.

If there is no quarrel about the fact that land was wrongfully dispossessed and that it must be returned, either to the state or to the rightful owner, and the people who dispossessed it and benefited for many decades, surely, they must make good? Not to say that there should be a rope around their neck three times. This is why there must be a provision for reparations. Germany took 100 years to pay their reparations, this Committee needs to ensure that the reparations in South Africa happen earlier.

In conclusion, the reason Al Jama-ah prefers legislation to deal with the two sensitive matters – land expropriation and compensation or nil compensation – is because it wants to fast-track restitution. He thanked the Chairperson for giving Al Jama-ah, which is a small party, the opportunity to present the views of its constituency and to give himself as a Member of Parliament, in his independent capacity, an opportunity to make some contribution.

Mr S Gumede (ANC) said that the ANC supports the amendments as presented by Ms Lesoma. As much as it may be difficult for the DA and ACDP who state that the Constitution does not need change, it may make sense that the Chairperson needs to ask especially the EFF and Al Jama-ah if they are willing to consider change. It looks as if the parties are in their own cocoons, where no one is willing to give and take, and therefore not coming up with a way forward. The DA’s comments showed a little bit of confusion on custodianship – what the ANC presented is not the same as interpreted by the DA. It is completely definitely not the same, as well as on the part of the EFF. There is a misunderstanding or confusion on land use and the forms of tenure, which is mixed. If it is well defined, then perhaps the EFF would get a proper understanding of what the ANC wants to advance.

He suggested that all questions the DA has asked should be forwarded to the ANC, because the ANC is willing to consider what other parties want to put forward. However, it would be a futile exercise if the DA only wants to probe the ANC’s proposals and not be willing to change its position; that would be a waste of energy.

Mr Gumede said it might be a bit better with the EFF, where the ANC and EFF are swimming in the same pool but going in different directions. All that needs to be done is perhaps to get parties to follow the direction that is least likely to lead to big waves and getting drowned. He suggested again that the Chairperson should ask if any party is still willing to change its position. The ANC does not want to waste time. Procrastination is the thief of time. This process will continue until August which is on its doorstep and this Committee has not been moving. This Committee needs to move forward and prepare the documents for submission to the National Assembly.

The Chairperson said that Mr Gumede’s contribution is very helpful to the Chair. He referred to the formulation which states: “the state must take reasonable legislative and other measures, within its available resources” to promote land reform. He questioned it being subject to available resources and asked what is the purpose of those resources; since initially this phrase would mean that it is subject to the ability of the state to pay for the restituted land. He asked for anyone to comment on the importance of "available resources" or the relevance thereof.

The Chairperson acknowledged that Al Jama-ah had raised the question of religious land and he thinks that this is a very important contribution. One reads the Madimatle court case about mining, where certain mountains or caves African people hold as being sacred. If one now says that the land must go back to the state this would mean that these sacred lands would go back to the state. What if the state then redistributes that sacred land? As people do not believe in the same religious sacred sites, he questioned how this will be dealt with. Does this mean the royal nations who waged the wars of resistance and who knew exactly which land belonged to them, must again go in a queue to ask the state to approve their entitlement to that land?

Why should it not be that the people who were wrongfully dispossessed of their land and who can prove it with evidence, that such land should go directly to them, and not first to the state and then back to them? Why follow such a tedious approach? He asked the EFF if they are saying that all people who owned land and can prove it was forcefully taken away should not be given their land straight-out but rather wait for a process that would take all land to the state and then back to the people. The Committee needs to have clarity on this so it becomes possible for Members to find each other.

Mr P Moroatshehla (ANC) thanked the Chairperson for his opening remarks, which sought to soften all and sundry, so that at the end of the day there will be a workable solution, which is the solution South Africans are waiting for with bated breath and expecting this Committee to assist them. As already stated, the ANC stands by the position as stated by Ms Lesoma.

The ANC cannot enforce its position on any person; if they could do so, then it would go a long way in addressing the challenges before the Committee. It is regrettable and it remains very unfortunate that there are still parties in this Committee who feel that nothing went wrong from the repressive colonial and apartheid laws. For instance, the DA says that nothing must be changed. This is undermining the integrity of the Fifth Parliament that said that there is something wrong within the Constitution and that Section 25 needs to be amended, and after the majority of all the oral and written submissions supported what Fifth Parliament said.

If this Committee has been given this task and a party says that nothing should be amended, this is not just undermining but it is an insult to the mandate of the Fifth Parliament. It is unfortunate that the Committee does not have all the time in the world to keep on talking about this. He referred to the EFF and said that the ANC needs the EFF as much as the EFF needs the ANC, and that hardened positions under these circumstances will not assist the EFF nor the ANC, let alone the majority of South Africans who are looking at this Committee as the final arbiter of a solution.

He does not want to sound like a prophet of doom, but Parliament has given this Committee this task because they love and trust the Members. The people of South Africa are looking at this Committee because they love and trust the Members and because this Committee can do something better on their behalf. Almost everybody, including the democratic professors, are looking at this Committee as the people who will be able to save this sinking boat, because one cannot dispute the fact that the land was brutally dispossessed from its rightful owners.

It is either this Committee plays ball on behalf of Parliament and the people of South Africa, or someone else at another inopportune opportunity will come in and play this ball. The fact of the matter remains that our people were dispossessed of their land, and how this can rightfully be given back to them is in the Committee’s hands. It is either this Committee that will do it or their kids and the kids of their kids will come and correct this situation, and perhaps in a very brutal and unacceptable way. He reiterated that he does not want to sound like a prophet of doom, but reality will prove him right one of these days.

The Chairperson agreed that the original scene was committed by the British colonialists and the Boer republics and that original scene has to be addressed. To say that there is no need to amend Section 25, is to say that South Africans must live with the original scene and this would be a great injustice to the majority of the people of this country.

Mr Shivambu said that opportunism always rears its head when discussing this. People want to argue that by resisting state custodianship, they are protecting the rights of black people to own the land. This is based on the wrong understanding of the land tenure system in the traditional precolonial African context. There has never been an instance in the entire African continent where there was titling of land, land has always been held in custodianship the majority of the times by traditional systems and people would have been given land-use rights for different purposes.

A lot of what is called traditional land, including the Ingonyama Trust land is custodian land which is under custodianship of the state, and there are limitations in how security of tenure has been guaranteed for that communal land which is owned by traditional leadership authorities. This is why Parliament is now correctly dealing with a land tenure rights amendment bill which is going to guarantee security of tenure for use purposes. The custodial relationship between the land and the people is what defines the majority of black people currently in South Africa and to ignore that is opportunism. If one refers to the records of the Department of Rural Development and Land Reform, one realises the fact that black Africans have less than 4% of the title deeds, and because of the reality of colonial dispossession, the descendants of the colonial settlers have more than 70% of the titles of the land surface of South Africa, in terms of the arable land that is available.

Custodianship cannot be considered as problematic, when in fact the majority of people are staying on custodian land. If it is not custodian land by the state, then it is custodian land by banks and financial institutions, which hold the land on behalf of a person on the basis that the person must give a monthly payment, and if they do not make those payments then the land may be taken and the person may be evicted from that land. This is what defines South Africa and the majority of black people now. The EFF is saying that they should legitimate this properly with an understanding that there needs to be a guarantee of security of tenure.

The EFF will not just agree for the sake of agreeing, and it will not do what the ANC did in the Convention for a Democratic South Africa (CODESA), by sacrificing key principles for political expedience. The EFF is not in a hurry for political expediency, political power and compromises to move forward on these issues. The EFF is raising a principle about the problematic manner in which redistribution has been handled on two fronts. Firstly, billions of rands have to be paid to people who are currently occupying the land so that it can be given to the state and later redistributed; and secondly, the piece-by-piece approach has not worked. In some instances where the state wanted to pay money, the owners would say they do not want the money but want to retain the land and some would charge unreasonable prices. This is why there was an attempt to introduce a Surveyor-General to value the cost of each piece of land that is due for redistribution.

When speaking about custodianship, it is not black people who will be the victims because they do not own the land. Members should read deeply on the land ownership patterns and statistics in South Africa, and they will realise that the people are not in ownership of the land and it is problematic if anyone assumes that they are in ownership of the land. The EFF proposes that the Committee can now change the framework and give the people security of tenure and the right of inheritance. There is a tenure system called security of tenure in perpetuity, which is used in Singapore.

The Republic of China's constitution says that all urban land is owned by the state and that rural land is owned by communal associations, but security of tenure is guaranteed and it still attracts the best physical investments. Here in South Africa, the state is custodian of all the land where special economic zones are located and this is where the majority of investment in South Africa happens. Forestry state-owned land is being utilised by huge corporations in the forestry business for commercial purposes. To juxtapose state custodianship with no security of tenure is problematic. This is why the EFF states that the sections in the Constitution that state that there needs to be proper legislation, in terms of a law of general application to guarantee security of tenure, is what needs to be done.

This would clarify and contextualise what custodianship is and how tenure is guaranteed. Tenure can be guaranteed in perpetuity in almost all instances, which will enable the proper space to redistribute the land equitably. The Freedom Charter says that “all the land re-divided amongst those who work it”, it says “all the land” not some land, or some portions of land. So those who are adherent to the Freedom Charter but do not want to subject all South Africa’s land to re-division for equal benefit for those who work it, are now betraying their own constitutional provision, because the Freedom Charter is in the Constitution.

The Chairperson said that before the Voortrekkers left the Cape to cross the Vaal River into the old Transvaal, there were royal nations like the Venda, Pedi, Swazi, Ndebele and Tswana, who owned land and there is proof, in terms of archived information of the land they owned. He asked Mr Shivambu if there was anything wrong in referring to those records to say that before the arrival of the Voortrekkers that those people had owned that land and therefore to restitute that land to them and guarantee security of tenure.

Mr Shivambu replied that the royalties that the Chairperson referred to in this place now called South Africa were dispossessed of their land, they never had titles. The titling of land is a postcolonial phenomenon. They had land in custodial control on behalf of their people. In the proper decolonial understanding of land tenure on the African continent, the royalties owned the land on behalf of the people.

They controlled the land on behalf of the people, and this is what the EFF is seeking to achieve by having this custodial relationship, to restitute ancestral land for those that can prove it is their ancestral land. The state as custodian would allow that land to be utilised for whatever purposes they would want to use it. However, when currently claiming land for restitution purposes it is being claimed from a white colonial settler who wants to demand money for people to gain access to their own ancestral land, which is problematic. This is the context within which the EFF argues these matters. The EFF has emphasised that the restitution component can still be applicable in those instances where people can provide proof that an area of land has been utilised and belonged to a clan. That land can then be considered for redistribution for equitable purposes.

FF+ Comments
Dr C Mulder (FF+) said that he is not aware of any colonial white settlers in South Africa, but he is aware of South African citizens that have rights in terms of the current Constitution, which must be kept in mind. He is not sure what the Committee is busy with at the moment, because the Chairperson started the meeting by saying that it was time that the Committee finalise this process and that after the bilaterals the Committee should now come to a conclusion on the different political party positions and to indicate where they stand. The parties have put forward their positions but he is not sure what the Committee is doing now.

Dr Mulder referred to the Chairperson's statement that the current law reform processes have failed and if this Committee does not do something about it then it will plunge the country into a crisis. The Chairperson had raised that point on various occasions during numerous meetings and it is a controversial point because there is a different opinion about that. The point of departure that the Chairperson takes is that it is the fault of the legal process in South Africa why there is a problem with land reform and restitution.

However, there are also very strong opinions that it is not the fault of the law and it is not the fault of the provisions of the Constitution but that it is the failure of government. This can be discussed because there are strong views that the failure is directly linked to government policy. This argument was put to the Committee through various submissions about the very small amount of money budgeted by government over many years and about the incompetence within the departments and the corruption. He does not accept it as a fact but rather a point of view that the legal process failed and this Committee must amend the Constitution or else it would plunge the country into a crisis. He strongly disagrees with this point of view.

He had listened to the different parties since the previous meeting two weeks ago. The Committee did not meet over the two weeks to allow time for bilaterals between the parties. The process of bilaterals has been going on for quite a while and the parties have had extensive time to engage with one another in those bilaterals and to come up with compromises. It is also true that the Chairperson had made the point that Members should put their political party allegiances behind them and come together as Members who act in the best interest of this country, which he agrees with and supports.

However, they must also be realistic and understand that each Member of this Committee is elected as a representative of a political party which represents a constituency within society. The constituencies have different views and positions on this very difficult issue. While listening to the Committee now, it sounds as if it is going into a bilateral by talking about history and getting history lessons. If the Committee is going down that route, then he can also give a history lesson about the land in South Africa, but he does not think that this is the place or the time to do so. By venturing into this it is as if the Committee is now trying to have a bilateral in this formal meeting.

The FF+ point of view is that if this Committee does want to tamper with Section 25 then the FF+ has made a proposal that Section 25(1) should be amended by starting off before anything else to acknowledge the positive rights that everyone should be able to own property. The FF+ had mentioned this in a written proposal a while ago. After listening to all the political parties, it is quite clear that the parties are not on the same page and that the different parties do not agree.

He cannot support the ANC proposals and the FF+ does not support the notion of custodianship. When looking at the proposals, there are more questions than answers, in terms of what these would mean, how it is going to be and what the responsibilities of the state are. None of this is clear and there is no use for the interpretation of the Members to suggest that they think it is this, that or the other. Constitutions and constitutional provisions do not work that way. The Constitution needs to be clear and it needs to put the principles and set guidelines as to how people are going to operate. With all due respect, this Committee can continue as is and have more meetings like this, but he earnestly appeals that this Committee finish this process once and for all.

The Committee has heard the position of the ruling party and its proposals. The Committee should then make a decision and take it to the House, that is as far as this Committee can go. It does not make sense for the Committee to continue in the way that it is at the moment. He is not sure if there is an attempt to have more bilaterals in a meeting like this but it is not working. The DA has made its position clear, the FF+ has made its position clear and the EFF has made its position abundantly clear, and so has the ANC, so it is earnestly time to get some finality to this process. He appealed to the ANC to put its position forward so the Committee can vote on it, which will then be taken to House for the House to decide.

Further discussion
The Chairperson suggested that the Members should be patient with themselves for a while because he has no doubt that the parties will find each other. He agreed that Dr Mulder had raised an important issue and perhaps Mr Shivambu can deal with it. He asked Mr Shivambu to clarify if the proposal for state custodianship meant that this would also apply to those who now own land privately or communally. He asked if these people would have to hand their land back to the state for the state to then redistribute.

Mr Shivambu replied that the EFF had made a lot of substantial submissions on the custodial relationship of the state to the land, which they will forward later so that all Committee members can engage with it in deeper detail. The National Water Act of 1998 and the Mineral and Petroleum Resources Development Act of 2002 deal with state custodianship and custodianship is not the same as nationalisation. Nationalisation would be an instance where the state will take all the land and use it for whatever purpose, and it can put people in places and remove them for all sorts of reasons. However, the custodial relationship means that the state is holding in custody or safekeeping the land for everyone else that needs to use it. The land that is in current use for residential, religious, industrial, agricultural or recreational purposes or a variety of purposes, would have its land-use rights that people are guaranteed through titles or whatever mechanisms converted.

As custodian of all land, the state cannot then evict those people for them to then queue and apply for those land-use rights but it will rather be automatically converted to say that the person is utilising and occupying that land for whatever purpose. This would also enable the space for all other land which statistically is in the ownership of majority white people, as a consequence of colonial dispossession of the land and Black people being forcefully removed from their land, for the state to gain access to that land for public purposes and for the public interest. The Constitution refers to the state’s commitment to land reform and land redistribution, which is the context in which the EFF position is framed. The good thing about this is that there is adequate jurisprudence in the South African context, because this has been done with water and minerals.

The mineral rights that were expropriated from private shareholders were worth trillions of US dollars, but the state was able to take that under its custodianship without paying a single cent. The Constitutional Court approved that to be a necessary deprivation which must then give people access to those mineral resources, wherever needed, under certain conditions. The EFF is saying that what needs to be done with land is what has been done with mineral resources, so that people can gain equal access. Other models have not worked and the proper scientific diagnosis of what has previously happened tells the Members that it will not be successful to continue with the piece-by-piece expropriation of land without having it under the state custodianship for equal redistribution. The Freedom Charter said that all land must be re-divided for those who work it.

Way forward
The Chairperson said that he thinks Members have heard one another and that the Committee must couch the different positions in text. He suggested that the Committee should ask the Legal Services officials to look at what the ANC and EFF had separately proposed and then formulate it as a text, while also noting that the DA questioned the financial implications. He thinks that one cannot deal with financial implications within the Constitution as a reason for Section 25 to stay as is, but parties cannot be denied the right to reformulate any subsection. The Committee should ask Legal Services about Section 25(7), where the EFF had proposals that need to be formulated into text, as well as formulating the ANC’s proposal for multiple ownership. When the Committee meets again, they will consider the latest party formulations and then put those to a vote. He asked Members if this suggestion made sense or if they had another suggestion.

Ms Lesoma replied that the suggestion made sense but she would like the Committee to be mindful that the ANC came prepared to finalise the text and for the Committee to make a decision. It must also be noted that some political parties, like the ANC, have made proposals on Section 25(5) which was not part of the Bill that went out for public participation. She thought the presented text would have been approved today through a vote or by other means, to ensure that the Committee publicise from 5 until 23 July 2021 the subsections that the parties have made proposals on and then reassemble for consideration of the public submissions on 29 and 30 July 2021. Thereafter on 5 and 6 August 2021, the Committee would consider and approve the Committee Report that will go to the House for adoption. She seeks guidance on this matter as she was going to make this proposal without knowing that the Committee would have not reached an agreement today.

The Chairperson replied that when the Committee had previously met, it was agreed that parties must go back and reflect on their positions, to come back with their revised positions today. Therefore, while he accepts Ms Lesoma’s position, he thinks it would be premature to finalise the text today. The Committee was meant to consider the revised positions today and will finalise the text in the next meeting. He asked if Ms Lesoma agreed to this.

Ms Lesoma agreed that the Committee will meet next week and work within the timeframe given.

Mr Moroatshehla agreed with the Chairperson’s suggestion that the work cannot be rounded up today, because there is another level of persuasion that was seen today. Members do not seem as hardened and they can still repent for the Committee to have a common understanding.

The Chairperson agreed with Mr Moroatshehla’s observation.

Mr V Xaba (ANC) emphasised the point that Ms Lesoma had made, that the Committee should agree on a text and publish it, because the Committee still has to have another round of public submissions. If this does not happen today then the Committee should at least agree to publish the ANC’s text and call for written submissions and once the Committee receives those written submissions to deliberate further, but at least those deliberations would be the last deliberations. If the Committee still does not find one another then it will submit a report to the House that represents the different positions, for the House to decide the way forward. However, if it is preferred that an agreement is made next week, then he is fine with that.

The Chairperson thanked Mr Xaba for his understanding. He referred back to Mr Gumede’s comments when he persuasively said that parties must indicate if they are willing to move from their original positions or not. He asked if Ms Lesoma and Mr Xaba agreed that this matter can be parked until 9 July. This will give all political parties the opportunity to consider what Mr Gumede had said, so that no party will later claim it has not been given the opportunity to refine its position.

He suggested that the EFF submit their document explaining state custodianship, because he thinks that the way it was presented suggests that even those people who had legitimately acquired title to land must then transfer their title to the state; and therefore, the EFF does not accept hybrid ownership of land. The EFF should be given the opportunity to clarify this on 9 July. The DA should also explain how they view the Constitution dealing with the financial implications, because national legislation can deal with such nitty-gritties. On Section 25(7), the EFF should formulate something concrete for the Committee to engage with, so that the Committee can then finalise this next week, in terms of what must be publicised and advertised for public comments. Although slowly, this Committee is moving forward. He urged Members to be patient with one another because these matters are capable of resolution. Members must resolve these matters if they want the best interest of South Africans to prevail.

Mr Gumede reminded the Committee that Al Jama-ah had also agreed to submit its position, which means that there would be three concrete submissions. According to the Chairperson, the Legal Services officials would be asked to look at what the three parties have submitted and formulate those into three texts. However, he would also propose that a fourth text be developed according to their interpretation, which will be a compromise or a combination of the three positions, which Legal Services would then present to the Committee for debate.

The Chairperson agreed with Mr Gumede’s suggestion.

Mr Xaba slightly disagreed with the suggestion as the Committee has already been down that road. The Legal Services officials had previously proposed what they considered to be a compromise document, which has led to where the Committee is now. He does not agree that this should be done again, because the process is now at a party political level. The administration must take what is agreed upon and couch it in the language that is not inconsistent with the Constitution. He suggests that the Legal Services officials not be invited into this terrain.

He reiterated the suggestion by Ms Lesoma, which is similar to what Dr Mulder suggested on behalf of the FF+, that the Chairperson should place the position of the ruling party on the table, for Members to vote on. When voting Members would be mindful that there will be further deliberations but that the voting is to move to the next step. The next step would be to publish the document in order to receive and consider the public submissions, and if the parties are still not persuaded, then the Members would decide what Committee Report should be submitted to the House. He proposed that this suggestion be considered when the Committee meets next week.

Mr Gumede considered Mr Xaba’s suggestion that the Legal Services officials not be included in the political terrain and withdrew his own suggestion so that the Committee can move forward.

The Chairperson replied that before Mr Gumede withdraws his suggestion, that what was said can be reconciled. Mr Xaba was right to say that the Committee has now entered a political terrain and the Committee has heard what the politicians have said, but the role of the Parliamentary Legal Service is to give the Committee technical support. He therefore suggested that the three texts from the ANC, EFF and Al Jama-ah must be taken to Parliamentary Legal Services so that they can look at the technical drafting without interfering with the politics of the matter. What Mr Gumede proposed still stands, subject to the fact that the legal technicians will not interfere with the political inputs. The Committee should not take away the right of the legal technicians to look at what the politicians produced, because at the end of the day everything has to be technically correct. The Committee would then look at the political inputs as modified by the legal technicians. He asked if Mr Xaba agreed to this.

Mr Xaba said that he had actually referred to the document for publication purposes, knowing that there will still be another round of discussion where the Committee would get advice from Legal Services as well. He suggested that in the next meeting, the Committee look at these positions and consider which document would be published as representing the minimum needed for the purposes of receiving comments on from the public participation process. The Committee would then engage once again, which will pave the way in preparation for the Committee Report that would be submitted to the House. The report might state that there is no agreement on the three positions, and would therefore submit all three positions to the House for determination.

The Chairperson said he thinks the Committee now has a clear way forward. In the next meeting, the Committee will consider the final text that will be published. Ms Lesoma had given the Committee a clear framework, which needs to be refined as it will guide the Committee at the 9 July meeting.

Meeting adjourned.

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