In this virtual meeting, Parliamentary Legal Services presented the proposals of the different political parties to amend Section 25 of the Constitution. During the meeting all the ANC proposals were carried with favourable votes. The DA, FF+ and EFF voted against the ANC proposals.
The DA and FF+ expressed concern for the far-reaching implications these amendments would have. The EFF maintained the firm view of expropriation without compensation and that South Africa’s land should be under state custodianship, for the public interest and equal redistribution.
The ANC majority adopted its proposed amendments and the Committee will reopen the public participation process for the revised 18th Constitutional Amendment Bill.
The different political parties had different views on the correct procedure for the way forward. Some political parties raised concern that the Committee would need to approach the National Assembly for permission to include amendments that extended beyond the specific subsections of the Draft Bill. However, the Chairperson emphasised that the new version of the Draft Bill was merely a supplementary process to complete the work of the Committee. The Committee’s original mandate included amending the entire Section 25 and it was not limited to certain sub-sections. The National Assembly gave the Committee "a blank cheque". The amended version of the Draft Bill would be published for three weeks for written comments on the supplementary amendments.
The Chairperson said that the Committee had requested Legal Services to compile the proposed amendments and they have made a very good document which will make life easier for the Committee. The Committee has made real progress which is backed by the inputs from their principals. What this Committee has before them, no longer needs political guidance from anyone, but really needs engagement amongst themselves on the merits and demits of the proposals. Today, the Committee needs to go clause by clause and persuade one another; and where they cannot persuade one another, they will vote on the clauses, so that at the end of the meeting, the Committee has a text that can go for publication.
This offers an opportunity to deal with what has been consistently raised, in that the original Bill was actually a compromise that was derived before all parties could make inputs, so this process will help the Committee address that going forward. There was also the concern of some that said the Committee was exceeding its mandate, but the Committee decided that it will deal with all the subsections in Section 25, which is the approach the Committee will take today. The Committee will deal with all the subsections, take positions on them and come out with a single text that will be published for public comment. The importance of the public comments would be to make the people themselves the arbiter. For instance, when the Committee went out for public hearings, he does not remember if the Committee explained state custodianship. He is not sure if the Committee had the same understanding of state custodianship as the public, and this is why the Committee is still debating it amongst itself. So, if the Committee publishes the new text, then they will have to ensure that the people engage with that concept and find out what it means.
On the cut-off date in the Constitution, people have merely taken a position whether or not they like the cut-off date, without a real study on why that cut-off date was decided. This second public comment phase will guide the Committee on resolving the cut-off date. The people themselves will be the final arbiter on areas of disagreement and therefore there should be no fear that this process will not deliver the desired outcome. He is very happy and thanked the Members for the robust engagements they had because that is what debates in Parliament are about.
The rising infections and fatalities of the Covid-19 pandemic mean that the Committee can no longer wait for another year or five years to deal with the question of land, because the country needs social and economic recovery and this cannot take place without restoration, redistribution and restitution of land to the people. This matter is really about the survival of the South African nation and all Members must approach this with the view that this is an intervention that can save the nation. He urged Members to put their political party interests aside and put the interest of South Africa and her people top of the agenda. He thanked the Members for their comradely and friendly manner in which they have worked, listened to one another and taken mandates from their principals. The ball is now in the Committee’s court – it has to deliver this project by 30 August.
Legal Services will present and Members would note areas where they want to raise issues for debate. The Members are the politicians and will make the political decisions, but Legal Services will provide the Committee with technical support and are entitled to express their opinions. If the Members differ with the Legal Services opinion, that does not mean a war has broken out. Individuals are entitled to an opinion and must be free to express opinions without fear or favour.
He proposed that Legal Services present the text. Once Legal Services presented, the Committee will take questions for clarity. The Committee will go through each subsection and where there is no agreement, the matter will be put to a vote.
Mr P Moroatshehla (ANC) said the Chairperson’s opening remarks and proposed approach will assist the Committee a great deal. He supported this.
There were no opposing views.
Amending 18th Constitutional Amendment Draft Bill (political party proposals)
Ms Telana Halley-Starkey, Parliamentary Legal Advisor: Office of Constitutional and Legal Services (CLSO), said Legal Services had been tasked to draft the Eighteenth Constitutional Amendment Bill with the proposals from each party included. She asked if she could present each clause and pause for Members to deliberate, as it might be overwhelming to present the entire Bill at one go.
The Chairperson agreed and the Legal Advisor presented the following:
● Al Jama-ah proposal:
“WHEREAS an amendment to section 25 of the Constitutional has been considered by various Committees of the Parliament of the Republic of South Africa and whereas the subject matter is highly contested;”
The Legal Advisor said that the first proposal was originally an amendment on expropriation and the original amendment by Al Jama-ah had used the term “expropriation”. Legal Services amended the sentence proposed by Al Jama-ah to accord with legislative prescripts – The amendment is to section 25 and should rather be described as such and not as the amendment on expropriation. The Bill cannot be referenced in its own preamble as strictly speaking the Bill is not yet in existence. It is not clear what the purpose is in including this paragraph into the preamble. A preamble sets the stage for the content of the Bill to follow. This paragraph indicates the history of the development of the Bill. It is recommended that this not be part of the preamble, but rather be part of the debate in the House.
The second proposal by Al Jama-ah is in three paragraphs and speaks to land reform:
● Al Jama-ah proposal:
“AND WHEREAS land reform in South Africa has to date incorrectly been based on European principles instead of principles subscribed to by the African continent and whereas the principles related to land tenure must not be modified by European law, but rather proper land reform should be executed;”
Legal Services tried to correct the wording to be in line with drafting prescripts. However, land reform in South African has happened post 1994 according to the Constitution. This paragraph implies that land reform to date was not proper and that our land reform programmes, i.e., redistribution, restitution and land tenure reform is founded on European principles, but our land reform programmes thus far, happened in accordance with the prescripts of our Constitution.
“AND WHEREAS there is an unequal distribution of land as a result of wrongful dispossession of land in the past, which must be addressed in terms of a South African black revolution;”
This second paragraph is repeating the last paragraphs of the preamble as was advertised. It is not recommended to refer to words such as a “revolution” in a preamble, unless it is made clear what is meant by that word. The word “revolution” can sometimes have connotations of forcefully overthrowing social order or government, which is something the Committee has on more than one occasion expressed itself as being against.
“AND WHEREAS there is a concern that section 235 of the Constitution must not impact on land reform,”
The above paragraph has no meaning in the preamble. If there is such a concern that section 235 of the Constitution (which is the right of the South African people to self-determination) would impact land reform then it should be included in the Bill - it has not been included, it should not only be stated in the preamble. On more than one occasion, the Committee has expressed that it is tasked to focus only on Section 25, not other sections of the Constitution.
Deliberation and voting on Preamble proposals by Al Jama-ah
Dr C Mulder (FF+) said that from the FF+ point of view, the process the Committee is engaged with has absolutely nothing to do with Section 235; it is something completely different. He agrees with the interpretation by Legal Services in general, that none of these proposals should be included in the preamble.
Prof A Lotriet (DA) said that the DA is not in favour of the proposals by Al Jama-ah. The DA fully supports the interpretation given by Legal Services and is therefore against the inclusion.
Ms R Lesoma (ANC) suggested that, for now, the Committee remain with the preamble as it was originally advertised, because the Committee is still going to come back to it.
The Chairperson noted that it was pointed out that some of the matters raised by Al Jama-ah belong to a debate. He hopes that Al Jama-ah understood that.
Mr Moroatshehla seconded Ms Lesoma. It would be premature to just face-off, as it is not the “be all end all” as they speak, the Committee is still going to debate. He supports Ms Lesoma’s suggestion that the Committee moves with the preamble as advertised.
Mr G Hendricks (Al Jama-ah) thanked the Committee for at least addressing the position of Al Jama-ah. Al Jama-ah agrees with the proposal made by Ms Lesoma, that the Committee stick to the advertised version of the preamble. Al Jama-ah agrees in the spirit of making progress and hopes that this will set the trend in the meeting, that Members in this Committee can “give and take”, so that this matter can be brought to an end.
The Chairperson thanked Mr Hendricks and reiterated that all proposals will be considered on their merits or demerits, regardless of the size of the party that makes the input, so all parties are equal in that sense.
Clause a – Section 25(1)
● FF+ proposal:
The FF+ proposed to delete “No” and include “Everyone has the right to own property and no" one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
The Legal Advisor said that this new wording is to make the right positive. This new deletion and insertion will have to be published for public comment, in terms of Section 74(5)(a) of the Constitution and the National Assembly (NA) Rule 275(a). It would need to be sent to the provincial legislatures in terms of Section 74(5)(b) and to the National House of Traditional and Khoi-San Leaders (NHTKL) in terms of the classification of the Bill and seek inputs from the departments in terms of NA Rule 275(b). The Committee will also have to approach the Assembly for permission to extend the scope of the Bill in terms of NA Rule 286(4)(b).
Deliberation and voting of Section 25(1) proposal by FF+
The Chairperson noted that the FF+ proposal would require many things to be done. He asked for the Members' opinion.
Ms Lesoma said that, for now, she moves that the Committee does not insert the proposal.
Ms K Mahlatsi (ANC) seconded the view of Ms Lesoma.
Dr Mulder said that the FF+ view is that the Committee not amend Section 25 of the Constitution, but if the Committee does make amendments, then the correct way to do so is as the FF+ had proposed. One will find that 90% of each and every right stipulated in the Bill of Rights is framed in a positive manner, for example – everyone has a right to fair labour practice; everyone has the right to freedom of movement. He is of the view that the right to own property is a positive right, that one will find that in almost every constitutional or democratic state throughout the world. It is a positive thing to formulate and to include in the Bill of Rights. Currently, the right to own property is framed in a negative manner, i.e., “...may not be deprived of...” but it could rather be framed in positive wording and then continue with Section 25 as is. He has taken note of what Legal Services has said about the process, and he understands that. However, this is why FF+ proposed this.
Mr Moroatshehla supported the view of Ms Lesoma and Ms Mahlatsi. In the reply to Dr Mulder’s comment, the Committee is in a process which seeks to correct the ills and the wrongs. The Committee has to be careful with the manner in which it coats the Bill of Rights, because at the end of the day, in the Committee’s zeal and endeavor to make a correction, the right that derives itself out of the wrongdom ceases to be the right. As much as the Bill of Rights is correct, he suggests that it be used economically otherwise it is going to overtake the intended course.
The Chairperson said to Dr Mulder that it seems the FF+ proposal which has been well motivated, will complicate the process further. In his view, although that provision is couched in a negative way, it would not prejudice anyone and he is inclined to agree with those who say that the Committee should leave it as is. He asked Dr Mulder if he was comfortable with this and proposed that if he had an argument to raise then he is reserved the right to do so, but for now, it is suggested that the Committee stays with what it has.
Dr Mulder replied that he heard the Chairperson. He is obviously not comfortable if his proposal is removed but be that as it may. The Chairperson implied that the proposal may complicate the process and extend its mandate. He therefore asked that the Committee keeps this proposal in mind when they consider other proposals as well.
Mr N Shivambu (EFF) said that implications of the Legal Services comment is problematic. He thought that the Committee had resolved this a long time ago, in that there will be no long process that needs to be followed in amending Section 25. The Committee has dealt with this question a long time ago and took the decision to amend every subsection in Section 25. Thus the supposition that the Committee would have to go through the processes and publication of the Bill again is problematic. He suggested that the Legal Services officials merely read the proposals as options for the Committee to deliberate on without the innuendos that there must be a different process – the Committee has rejected that opinion a long time ago. The Committee should live with what it has and vote on it. The Committee has listened to Legal Services and has not accepted their advice on the process must be followed.
The Chairperson replied that the Committee is engaged in a process and this is another stage. Legal Services are presenting according to the mandate the Committee gave them in the last meeting. He suggested that Legal Services present and where the Committee disagrees, then it can repeat those disagreements but the Committee cannot carry over disagreements from the past into the future. The Committee should proceed and where Members feel that a decision has already been made, they can restate that decision and see if other Members agree with that input, so that this process can roll out in an orderly fashion.
Mr S Gumede (ANC) supported the opinions of the other ANC Members. The Committee has a very large responsibility, as they were tasked to make explicit that which is implicit. The Committee cannot begin to confuse the masses. He supports the view that the FF+ proposal is not inserted and it is left as is, especially since Dr Mulder seemed to withdraw what he had proposed. The Committee is tasked to make explicit that which is implicit, so the Committee should not tamper with the clauses.
Dr Mulder clarified that he did not withdraw his proposal but he took note that the majority of the Committee had not supported the proposal, and so be it.
The Chairperson said it is very progressive that Dr Mulder accepted the position of the majority.
Ms Mahlatsi said that the Committee must be consistent when considering other clauses that may 'complicate the process'. The Committee should not approach this in that fashion. The Committee should continue in the spirit of accepting the view of the majority. The Chairperson did not imply that complicating the process referred to extending its mandate – as Dr Mulder had understood it. One does not want to create the impression that what was done with this clause must be done throughout. It was Dr Mulder’s view that the majority had not accepted the proposal. Other clauses must also be considered in that same manner.
The Chairperson thanked Ms Mahlatsi for clarifying what he had said; that was the correct explanation.
Mr Shivambu said the notion that the sole mandate of this Committee is making explicit that which is implicit, is minimalist and reductionist. The mandate includes that the Committee must have regard to the work done and recommendations as contained in the reports of the Constitutional Review Committee and the previous Ad Hoc Committee on the amendment of Section 25 of the Constitution. To reduce the mandate to making explicit that which is implicit is problematic and the Committee has dealt with this a long time ago. The Committee has the mandate to amend all subsections in Section 25 without having to go back in the process to seek permission. He suggested that Legal Services must just present what the Committee has before them and then give their opinion later in terms of process, without bringing in this issue that was already deliberated on and rejected. The Committee has rejected with contempt the suggestion that it would need to go back to the House to amend subsections that are not in the Draft Bill. The Committee had agreed to deliberate on Section 25 in its entirety.
Dr Mulder said that, with all due respect, perhaps Mr Shivambu had attended a different meeting as he was not in any meeting where the views of Legal Services were rejected with contempt. That is not correct and is factually wrong. The fact of the matter is that when the Committee’s mandate was again reviewed or the decision was taken to give the Committee an extended new date, Parliament in its resolution clearly stated that the Committee has the exact same mandate as the original. The scope was not broadened in any way. He suggested that the Committee continue with what Legal Services were presenting.
Mr Gumede (ANC) said that at times it is appropriate for the Committee not to deal with semantics – for instance when the Committee disagrees just for the sake of disagreeing and not guiding the Committee to move forward. The Chairperson had made a very clear opening remark that the Committee deal with the proposals clause-by-clause. He suggested that comments must be relevant to the clause, and other clauses may have different approaches, and the Committee not take a blanket approach to the clauses, where if one Member has made a comment on a particular clause that it is then applied to other clauses that might require a different approach. These are just semantics. He urges the Committee to move forward. The majority of the Committee had already accepted that the FF+ clause should not be accepted.
Ms Lesoma agreed that the Committee should proceed.
Mr Shivambu said that the Committee previously had deliberations on whether it should discuss the entirety of Section 25. Legal Services made a point that the Committee cannot discuss the entire Section 25 and it should reduce the deliberations to the subsections contained in the Draft Bill, and if the Committee wanted to deliberate on the other subsections, then the process would have to be restarted, by going back to Parliament for a new mandate and a variety of other steps would need to be followed. The Committee made the decision that it would deliberate on all the subsections and not accept the guidance of Legal Services.
The Committee is now deliberating on all the subsections. There is no need to try and smuggle in a perspective which the Committee had already rejected in principle. The Committee made the decision to deal with all subsections, which is why this text has all the subsections and the proposed amendments. For Legal Services to still say that these amendments require the Committee to expand its mandate and follow a process is problematic and is not the foundation upon which the Committee is moving forward.
The Chairperson replied that he respectfully does not see where the problem is as Mr Shivambu had correctly said the Committee had agreed to deal with all the subsections. Legal Services had agreed to this as well, and they even requested that the Committee deal with one subsection, conclude it, and then move on to the next subsection. He does not see the basis for any disagreement. Mr Gumede had assisted the Committee by suggesting that Members should not take a blanket approach, but rather deal with each clause uniquely. The Committee should have an agreement to move forward.
Clause b – Section 25(2)(b)
There are two proposals, the first is by ANC and Al Jama-ah and the second proposal is by EFF.
● ANC and Al Jamah proposal:
‘(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court: "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.’’;
The Legal Advisor said that for the first proposal, the original Bill as advertised included the word “court”, for the courts to be the decision maker. The proposal by ANC and Al Jama-ah now deletes “court” and includes the new sentence as underlined. There are differing views on advertising the removal of "courts". The Constitutional and Legal Services Office (CLSO) is of the view that the deletion of “court” will have to be published for public comment, sent to the provincial legislatures and to the NHTKL and the Committee will need to seek inputs from Departments. However, the Committee Support Staff is of the view that it does not have to be advertised as it is a technical amendment, it was in the Bill as advertised and the amendment is as a result of public input.
● EFF proposal:
‘‘(2) Property may be expropriated [only in terms of law of general application]"
The EFF’s proposal is also an amendment to subsection 2, so that "property may be expropriated without compensation, in the public interest and only in terms of law of general application". The proposal deletes “subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court”.
Mr V Xaba (ANC) raised a point of order to ask that the Legal Services official not repeat what is already in the legal opinion. He suggested that the Committee continue to deal with the clauses and once the Committee is done deliberating the clauses then they can address what is next. The “what is next” is the guide that is in the legal opinion. This suggestion will assist the Committee, so that Members do not provoke a discussion while Legal Services present.
The Chairperson asked if the Parliamentary Legal Advisor agreed with the suggestion.
The Legal Advisor agreed and said that she will not go into detail about the procedure, in terms of advertising and asking for permission. She asked if Members were comfortable if she could comment on the drafting prescripts and the reasons Legal Services have made amendments to the proposals, and also the legal arguments on why certain proposals might appear in a different format to what Members had suggested.
Ms Lesoma said that if she heard Mr Xaba correctly, he did not say that the Legal Advisor should not make a legal opinion on the proposals but suggested that she separate the processes. In other words, the Committee should deal with what is before them in and if they agree with what is going to be advertised, thereafter the Committee will discuss “what is next” which is where the legal opinion will come in. Otherwise, if the Committee continues to engage on clauses that it has not yet decided on about correct processes, then it will confuse the entire discussion and the discussion will end up bouncing “to and fro”. She clarified that Mr Xaba’s comment was not to suggest that the Committee would not allow Legal Services to present their views.
The Chairperson agreed that the suggestion was made to avoid confusion. The Legal Advisor would still present the legal opinion but the Committee should first focus on the text.
Mr Shivambu said that it is quite simple and straightforward: the Committee should be deliberating the Draft Bill with phrasing options from the different political parties. Legal Services should be reading word for word what the different political parties are proposing, and the Committee must deliberate on which option it would advertise. Legal Services must not smuggle their legal opinion, they can do that later. The Committee is not interested in the legal opinion, they have listened to the legal opinion before. The Committee is now focused on the text of the Bill without all the amendments which are being smuggled, as it is not necessary.
The Chairperson replied that he does not agree with the word “smuggling” because he gave Legal Services the permission to present that way, but now Members do not agree with that approach and it is their right to do so. Members are in agreement with what Mr Shivambu had said but they should not use negative terms, such as “smuggling” that suggested that someone is a crook, does not have integrity or are doing things that they should not be doing. The Committee should not treat colleagues and members of staff in that way. Legal Services are not smuggling anything and they were allowed to present that way, but now that the Committee feels that the presentation should not continue with that approach, Members have accepted that. Members should not cast aspersions on professionals. The legal officials are professionals and their professional integrity is very important.
Deliberation and voting of Section 25(2)(b), as proposed by ANC, Al Jama-ah and EFF
Prof Lotriet said that the DA does not support the proposals by the ANC and Al Jama-ah, and agrees with the notes given by Legal Services about taking away the courts. She reiterated a major concern, which was also highlighted in last week’s discussions, which is that the DA is still extremely concerned about a provision in the Constitution that would say that land and any improvements thereon may be expropriated for nil compensation, as an economic and financial impact assessment of that has not been done. Although the Chairperson had said last week, that it was not the place to do such an assessment in the Constitution, the DA believes that the consequences and implication for the country would be far-reaching. The whole process that the Committee is engaged with was couched in the words of the President in that there should be no negative effect on the economy and food security. Therefore, the DA cannot support the ANC and Al Jama-ah proposals. The DA definitely cannot support the EFF proposal, as it takes out the entire compensation part and that land is then expropriated just in terms of a law of general application, which the DA feels that the threshold is too low and cannot support. This also takes out the role of the court, which is something that the DA finds to be totally against Chapter 1 of the Constitution, i.e., the Founding Provisions.
The Chairperson asked Prof Lotriet if she does not think that the economic and financial assessment belongs to the implementation phase. He asked why it would be relevant at this stage. The Committee is tasked to amend the Constitution, which has to be implemented; but the economic and financial assessment belongs to the implementation phase.
Prof Lotriet replied that she does not agree with that. It would be extremely dangerous and risky to embark on a Constitutional amendment for which the consequences have not yet been determined. She based her response on some of the submissions the Committee received, in that there will be far-reaching consequences and the Committee needs to be cognisant of that. The Committee cannot carry on regardless, they must take note of that.
The Chairperson thanked Prof Lotriet for explaining herself.
Dr Mulder said that the FF+ does not support the proposals by the ANC and Al Jama-ah. The role of the court should not be tampered with, as it would be in conflict of Section 34 of the Constitution and, as such, unconstitutional, which is also read with Section 1 that deals with the rule of law. The FF+ does not support the proposal by the EFF, as the “only in terms of law of general application” is open for abuse and the FF+ cannot support that.
Mr Shivambu said that the EFF rejects the ANC and Al Jama-ah proposal. The EFF does not think that the words “subject to compensation” must be retained in the Constitution. In the first place this process was to deal with expropriation without compensation. The EFF rejects the phrasing of the ANC and Al Jama-ah proposal, as they do not think that the certain instances that "may be nil" compensation covers the intent of expropriating and repossessing the land without compensation. The EFF’s proposal is that Section 25(2) must read that “Property may be expropriated without compensation”, (2)(a) “only in terms of law of general application” and (2)(b) “for a public purpose or in the public interest” which synchronises with the later subsection that says that the public interest and public purpose includes the nation's commitment to land reform. However, to make it more concise the EFF proposal is that it must read that property may be expropriated without compensation, in the public interest and only in terms of law of general application. The EFF firmly rejects the ANC and Al Jama-ah proposal.
Ms Lesoma said that the ANC had made its submission in a number of meetings and has motivated and made legal arguments, but today the ANC does not intend to repeat itself. She therefore, formally moves for the Committee to adopt the ANC proposal for the purpose of the three-week publication for comment. The ANC appreciates the support from Al Jama-ah.
Ms K Mahlatsi (ANC) seconded Ms Lesoma. In principle, the Committee had agreed that today they will not discuss as they have for the past few months. However, when trying to navigate the process of influencing one another, she thinks it is important to make reference to what Dr Lotriet had said about the far-reaching implications of these amendments to the Constitution. She thinks that most Members have made it very clear that the Committee needs to distinctively separate the processes in as far as the state is concerned. The Members understand very well that it is their responsibility as legislators to amend the Constitution; however the process of implementation lies with the executive and that has been pointed out explicitly on numerous occasions. One issue she wants to speak to are the implications in as far as the finances are concerned. It is quite funny that the DA comes gun blazing on this issue, because in 1913 when this decision was taken the far-reaching implications were not thought of – now that 86% of our African people have absolutely no land. With this movement today, the Committee is engaged in a legit process to include them in the process of negotiating after our people have suffered for many years. Yet today they have the audacity to come to this meeting to say that there would be far-reaching implications – did they think about the implications many years ago? It is quite worrisome that 27 years into democracy there are still people that think in that way.
The Chairperson agreed and said that Ms Mahlatsi is not out of order, because the problem of violent land dispossession can be taken back as far to the end of the 17th century. At all stages after the First Anglo Boer war, the Second Anglo Boer war and the Union of South Africa, 1930, no one ever considered the implications or thought that they cannot change the law because they do not know the implications. Therefore, Ms Mahlatsi is perfectly right in her observation.
Ms A Steyn (DA) said that she disagreed with the Chairperson and Ms Mahlatsi. It is unfair to suggest that the DA does not care about people. If one reads back in history, one can see that the DA as a party and its predecessor has always said that they support land reform, but they do not agree that the Constitution is the problem and that the Constitution needs to be changed. She objects that the DA is being clustered, supposedly because of race or skin colour in this instance, and she objects to the sentiment that was raised.
The Chairperson replied that there was respectfully no racism involved, because Ms Mahlatsi had spoken about a factual and evidence-based situation. Throughout history before 1994 people have changed laws which had implications for the indigenous people of South Africa, without having regard to the negative impact. So, Ms Mahlatsi had not made a racial remark and should not have any racist attitude attributed to her.
Dr C Mulder (FF+) said that the question of financial implications is very relevant. If one looks at page 11 of the Draft Bill, it says that the financial implication for the state is “none”, which is in dispute – not referring to the past but referring to the present, and in terms of who takes responsibility for all the financial implications of the properties that are bonded and then expropriated; there might not be an answer to that, but be that as it may.
He raised a technical concern that there are instances when there are differences between parties. The Committee needs to ensure that the Members who are eligible to vote in this Committee should be present. He suggested that it is not safe to say, for instance, that if Ms Lesoma says something that it is then regarded as the majority. He asked the administration to assist the Committee by indicating if all the voting members are present.
The Chairperson thanked Dr Mulder for the guidance. Moving forward, the Committee should check if the voting members are present in order for the Committee to vote where there are disagreements, so that what goes into the text was approved by the majority.
Mr Xaba said that the Committee had deliberated on the clause at length and the motivation is known. He agreed with Dr Mulder that the Committee should focus and vote on the clauses, thereafter if the Committee still wants to engage on political discussions, then they can do so. He suggested that this meeting is about voting, and that the Committee should not conflate the voting with further deliberation, because Members have not raised any new points. These points have been conversed many times in the meetings since the Committee had started deliberating after the public submissions.
The Chairperson said that he does not think that the Committee is debating again. The comment by Ms Mahlatsi was raised as a point of order, and it was appropriate for her to raise that. He agreed that the meeting is about voting and the meeting will proceed in that way. He asked Ms Lesoma to clarify the names of the ANC voting members.
Ms Lesoma confirmed that the ANC voting members that are present are herself, the Chairperson, Ms Mahlatsi, Mr Moroatshehla, Mr Gumede and Mr Xaba who is a non-voting member but has all the rights to fully participate in the meeting. There are also two alternate voting members present, which is Ms N Ntobongwana and Inkosi Z Mandela. Adv B Bongo has a standing apology.
The Chairperson asked the DA to confirm how many of its voting members are present.
Prof Lotriet confirmed that the DA has two voting members which are herself and Adv G Breytenbach. Ms A Steyn (DA) is the alternative voting member. There are also other alternative voting members online.
The Chairperson asked Dr Mulder how many voting members of the FF+ were present.
Dr Mulder confirmed that he is the one voting member from the FF+. He also confirmed that the IFP has one voting member and the EFF also has one voting member.
The Chairperson asked that the ANC proposal for Section 25(2)(b) be formally put forward and he asked how many people supported it.
Ms Lesoma referred to the ANC proposal for Section 25(2)(b) and moved for its adoption.
Mr Moroatshehla seconded.
The Chairperson asked if there was any opposition to the ANC proposal.
Dr Mulder said that the FF+ voted against the ANC proposal.
Adv G Breytenbach (DA) said that the DA voted against the ANC proposal.
Mr Shivambu said that the EFF votes against the expropriation of land being subject to compensation, and therefore votes against the ANC proposal.
The Chairperson asked who are the Members that are in favour of the ANC proposal.
Ms Lesoma replied that there were more ANC Members present but six voting members of the ANC were in favour of the ANC proposal.
The Chairperson said that the ANC proposal is carried.
Dr Mulder referred to what Ms Lesoma had said and noted that there may be more Members of any party present but in terms of the Rules of the House there can never be more than six voting members from the ANC.
Ms Lesoma clarified that she said the ANC had more Members present, but only six Members were voting members. She offered to read the list of voting members present again.
Mr Xaba said that Ms Lesoma does not need to repeat herself because she had presented the list of Members very clearly.
The Chairperson said that there is nothing wrong with repeating for record purposes as perhaps some Members had not heard that.
Ms Lesoma confirmed that the ANC has six voting members, and two alternate Members who have the right to vote in the absence of a voting member. The voting members present are herself, the Chairperson, Ms Mahlatsi, Mr Moroatshehla and Mr Gumede. However, Adv Bongo has a standing apology so Ms Ntobongwana is the alternative voting member, which makes up the six voting ANC Members present and who vote in favour of the ANC proposal. Inkosi Z Mandela is also an alternative voting member.
Clause c – Section 25(3)
● ANC and Al Jama-ah proposal:
The proposal by the ANC and Al Jama-ah is exactly as it appeared in the Bill that was advertised, so nothing has changed.
● EFF proposal:
The EFF proposed the deletion of subsection 3.
Deliberation and voting of Section 25(3), as proposed by ANC, Al Jama-ah and EFF
Mr Shivambu said that it is not “c” but it is subsection 3 of Section 25.
The Legal Advisor agreed that it is subsection 3, but it is clause 3 as it is amended in the Bill.
Mr Shivambu said that the EFF proposal is that the entirety of subsection 3 must be deleted because it determines the amount, conditions and circumstances upon which compensation had to be paid; but the EFF is of the firm view of expropriation without compensation. The EFF firmly proposes that subsection 3 must fall.
Prof Lotriet said that in terms of the same consequential decision that the DA had on Section 25(2)(b), the DA does not support the ANC and Al Jama-ah proposal for subsection 3, and the DA also does not support the EFF proposed deletion of subsection 3.
Dr Mulder said that he is not sure of the process but the Chairperson did not ask for a seconder when Mr Shivambu put forward the proposal of the EFF.
The Chairperson agreed with Dr Mulder. He asked if anyone from the ANC seconded the proposal.
Ms Mahlatsi seconded the motion as presented by Ms Lesoma for the ANC proposal.
The Chairperson asked if the IFP was present.
The Committee Secretary confirmed that the IFP was not present in the meeting.
The Chairperson noted that the EFF had a counter motion to the ANC proposal, and asked if any other party seconded the counter motion.
The Chairperson noted no seconder to the counter motion. Therefore, the ANC proposal for Section 25(3) is carried.
Mr Shivambu said that the EFF still stands firm that subsection 3 must be deleted.
The Chairperson said that it has been noted, but the ANC proposal is carried by the majority.
Dr Mulder wanted to clarify that the FF+ also voted against the ANC proposal.
The Chairperson noted Dr Mulder’s comment.
Clause d – Section 25(3A)
● ANC proposal:
‘‘(3A) 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.’’;
● Al Jama-ah proposal:
‘‘(3A) (a) 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.
(b) The national legislation contemplated in paragraph (a) must—
(i) in the National Assembly and in the National Council of Provinces, be considered by a special committee consisting of all political parties represented in the Assembly and Council;
(ii) must be passed in the National Assembly with a supporting vote of at least two thirds of its members; and
(iii) must be passed in the National Council of Provinces with a supporting vote of at least six provinces.’’;
The Legal Advisor said that subsection 3A is a new insertion by the ANC and Al Jama-ah. The Al Jama-ah proposal is similar the ANC proposal, but Al Jama-ah added two subsections to their proposal. Al Jama-ah had originally proposed two paragraphs as subsection 3A and subsection 3B, but since the concepts are the same, Legal Services suggested that it rather be two subparagraphs in subsection 3A. Legal Services reworded the proposal in order to make sense of what was proposed, as Al Jama-ah had incorrectly made reference to subcommittees and subcommittees passing legislation, so this has been amended to read that the House can pass the legislation. Furthermore, Legal Services made the provisions clear with regards to voting, and included the National Council of Provinces (NCOP).
Deliberation and voting of Section 25(3A), as proposed by ANC and Al Jama-ah
Ms Lesoma formally moved for the adoption of the ANC proposal for Section 25(3A).
Mr Moroatshehla seconded.
The Chairperson asked if there was any counter motion to the ANC proposal.
Mr Shivambu said that the EFF votes against the ANC proposal because the EFF proposed that the entire subsection 3 must be deleted.
The Chairperson asked if anyone seconded the EFF proposal. There was no seconder.
Dr Mulder said that the FF+ votes against the ANC proposal.
Prof Lotriet said that both voting members of the DA vote against the ANC proposal.
The Chairperson confirmed that the ANC proposal is carried. He asked that Mr G Hendricks formally move the Al Jama-ah proposal.
Mr G Hendricks (Al Jama-ah) formally moved for the Al Jama-ah proposal.
The Chairperson asked if there was any seconder to the Al Jama-ah proposal, and asked if Mr Hendricks was the only member from Al Jama-ah.
Mr Hendricks confirmed that he was the only member from Al Jama-ah.
The Committee Secretary confirmed that Al Jama-ah is a non-voting member of the Committee.
Mr Hendricks clarified that Al Jama-ah does have two members on the Committee that represents Al Jama-ah. The seven smaller parties are represented by two Members on the Committee, so it is incorrect to say that Al Jama-ah does not have any voting powers. Al Jama-ah has proxies as voting power, in terms of the Rules of Parliament.
The Chairperson questioned why Al Jama-ah was described as a non-voting member.
The Committee Secretary said that the Announcements, Tablings and Committee Reports (ATC) had a list of voting and non-voting members. Mr Hendricks is a Committee member but Al Jama-ah is classified as a non-voting member.
The Chairperson said that there was no seconder to the Al Jama-ah proposal. He suggested that the Committee can assume that Mr Hendricks has the right to move the Al Jama-ah proposal, but there is no seconder, which means that the ANC proposal is carried.
Mr Shivambu clarified that the smaller parties have representatives that must vote on their behalf. If they disagree amongst themselves then there is no mechanism to determine whose side they would vote on. So even if Al Jama-ah wants to vote for or against, it is meaningless if its vote cannot reverse that of the smaller parties that represent them in this Committee. It may be handled differently in other Committees, but in this Committee, they have to leave it to whoever they have mandated to cast that vote on their behalf according to whatever they believe the vote should be.
Dr Mulder said that the idea of parties being grouped together is something that was part of the Fourth Parliament before 2019. In terms of the current process and in terms of the ATC, the EFF and the IFP represent themselves in this Committee and have voting rights. This does not mean that other parties cannot participate in this meeting and that is why Mr Hendricks has participated in his own right and has made proposals in his own right. The ruling is technically correct, so the Committee can proceed.
Mr Hendricks agreed that the Chairperson's ruling is correct. It is a pity that the two Members who represent the smaller parties are not consulting with Al Jama-ah which makes a mockery of this particular arrangement. They have the vote on Al Jama-ah’s behalf, yet they do not have the decency and the courtesy to consult with the parties that they represent. However, Al Jama-ah respects the position of the Chairperson.
Dr Mulder said that Mr Hendricks had not listened to what he had said. Mr Hendricks is absolutely 100% wrong at this stage. The FF+ is not here to represent other parties, the FF+ represents itself in terms of the ATC and Mr Hendricks represented himself, which is why he had participated throughout the process and he even made proposals on his own behalf. He is unfortunately wrong.
Mr Shivambu said that there is nothing wrong with what Mr Hendricks had said, because the smaller parties cannot individually cast their own vote, that is a fact. In terms of the ATC list, Al Jama-ah cannot vote because they are not the mandated parties who were listed as members with voting rights in the Committee. Of course, they can fully participate, they can move motions and make submissions, but when it comes to casting a vote they cannot vote, unless they consolidated that vote with the smaller parties who have that right to vote. That is a fact.
The Chairperson said that the situation now is not compromised because the Al Jama-ah motion has no seconder, and the ANC motion has been carried.
Clause e – Section 25(4A)
● ANC proposal:
‘‘(4A) The land is the common heritage of all citizens that the state must safeguard for future generations.’’;
● Al Jama-ah proposal:
‘‘(4A) (a) The waqf land is an endowment solely offered to Allah that must be safeguard for future generations.
(b) For purposes of this subsection “waqf land” means a sacred endowment of property to be held in trust for charitable purposes in such a manner that it should benefit the current generation as well as the subsequent generations.’’
The Legal Advisor said that the definition of “waqf” literally means to “stop” or “contain” in Arabic. Legally, the term has been employed in Muslim communities to mean a “religious endowment”; that is, a sacred endowment of property such as a school or a hospital to be held in trust. It is essentially used for charitable purposes in such a manner that it should benefit the current generation as well as the subsequent generations. Legal Services cautions that the Constitution tries to steer clear of religious terminology.
Mr Shivambu raised a point of order. The Committee had agreed that the Legal Service officials should first read what is in the text and not provide a legal argument, they can do so later if they would like to do so. The Committee is currently choosing which proposals it prefers, so the Legal Service officials must just read through the text.
The Chairperson agreed.
The Legal Advisor said that she did understand that she should not speak on the procedural matters, on what should or should not be advertised, but she is speaking on the content of the Bill because it would be remiss of Legal Services not to advise the Committee correctly on what is required of legislation and dealing with the intricacies of drafting legislation. She will not comment on the procedural aspects, as that can be discussed after the Committee has decided what should or should not remain in the Bill. It will be remiss of her duty not to set out what would be required of drafting legislation.
Mr Hendricks said that he is very grateful that the Al Jama-ah proposal is being considered, because religious land cuts across different faiths and cultural communities. Al Jama-ah feels that the state should not be in control of sacred land but that the status quo should largely remain, and the legal advisor did point out how this is being addressed. Al Jama-ah has put forward its proposal and it is now up to the Committee to decide whether they will respect sacred land. Al Jama-ah cannot speak for other constituencies but Al Jama-ah referred to “waqf land” in the event that there is a decision for all land to be owned by the state, which is the respected position of the EFF. With such a decision, Al Jama-ah feels that waqf land, sacred land and religious land must be excluded because of strong positions of faith.
Mr Xaba said that the Members' agreement was to try to protect the Legal Services official, by not provoking discussion that is not necessary at this stage. The parties have already discussed their positions, they know where they stand but the Committee is now voting. The Committee can take further political discussion at a later stage.
The Chairperson agreed that the Members have nothing against Legal Services and the agreement was for their protection. The South African state is a secular state, and Members cannot put religious positions in the Constitution, because that would mean that the Committee would need to ask “what are the Catholics saying? What are the Hindu’s saying? And what are the Muslims saying?” which will create problems. The Legal Advisor should proceed and for now the Committee should stick to the proposals, vote on them and stay away from the legal opinions.
● EFF proposal:
‘‘(4A) Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state.’’
The Legal Advisor said that this is a new insertion and proposed to be part of subsection 4. The way it was proposed by the EFF is that it would be part section 25(4)(c) because it has subsection 4(a) and (b). Drafting conventions do not allow this so Legal Services have created a new paragraph for the EFF proposal which is paragraph 4A – the content is however still the same.
Deliberation and voting of Section 25(4A) as proposed by ANC, Al Jama-ah and EFF
Mr Hendricks said that he acknowledged the Chairperson's comment about South Africa being a secular state, and they can have a political debate about it because he does not know of any political party that was not formed in a church or in a mosque, even the communist party was formed in the church. Although that is the Chairperson's position, he respects that position. Al Jama-ah would like to propose that waqf land must not be in the custody of the state.
The Chairperson asked if anyone seconded the Al Jama-ah proposal. There was no seconder.
Mr Shivambu said that the EFF firmly proposes that the Constitution should state that “Land is a natural resource and the common heritage, which belongs to the people as a whole, under the custodianship of the democratic state.’’. The EFF proposes that this subsection should firmly establish custodianship of all South Africa’s land. One will see that in its proposed section 25(5), the EFF articulates that there should be necessary legislation that should deal with custodianship. All of South Africa’s land must be in custodianship of the state for equal redistribution. The Freedom Charter calls for the re-division of all the land, and the EFF says that this should be under the custodianship of the state for equal redistribution. This is what the EFF had articulated consistently in the EFF founding manifesto adopted on 26 July 2013. This is the EFF’s firm perspective and it will not shift on that.
The Chairperson asked if anyone seconded the EFF proposal. There was no seconder for the EFF proposal.
Ms Lesoma moved for the adoption of the ANC proposal.
Mr Moroatshehla seconded.
The Chairperson said that the ANC proposal is carried.
Dr Mulder said that the FF+ votes against the ANC proposal.
Prof Lotriet said that the DA does not support the inclusion of the ANC proposal.
The Chairperson thanked Members and said that the Committee is proceeding well.
Clause f – Section 25(5)
● ANC and Al Jama-ah propose:
(5) 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.
● EFF proposes:
(5) The state must take reasonable legislative and other measures, [within its available resources, to foster conditions] which enable "state custodianship and for" citizens to gain access to land on an equitable basis.
The Legal Advisor referred to the EFF proposal and said drafting conventions do not allow for the shifting of the subsection paragraphs. This would require drafting around the existing subsections, hence the change in numbering from what the EFF had submitted. It would remain subsection 5 even if the EFF proposal deleted subsection 3 - the content however is the same.
Deliberation and voting of Section 25(5), as proposed by ANC, Al Jama-ah and the EFF.
Ms Lesoma moved for the adoption of the ANC proposal.
Ms Mahlatsi seconded.
The Chairperson asked if there was any counter motion.
Mr Shivambu said that the EFF counter motion is what the EFF proposes for what currently appears as subsection 5.
The Chairperson asked Mr Shivambu how many voting members the EFF had in the Committee.
Mr Shivambu replied that the EFF had one voting member.
The Chairperson asked if anyone seconded the EFF proposal. There was no seconder.
Mr Hendricks said that the Al Jama-ah proposal is in line with the ANC proposal. Al Jama-ah accordingly requests their two representatives from the smaller parties to support that proposal.
Dr Mulder said that he would repeat himself for the sake of Mr Hendricks, at some point he will understand what he had said in the past. The FF+ votes against the ANC proposal.
Prof Lotriet said that the DA votes against the ANC proposal.
The Chairperson said that the ANC proposal for subsection 5 is the only proposal that has been seconded, and therefore it is carried by the majority ANC voting members.
Clause g – Section 25(7)
● EFF proposal:
‘‘(7) A person or community dispossessed of property [after 19 June 1913] as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.’’
The EFF proposes to delete “after 19 June 1913”.
Deliberation and voting of Section 25(7), as proposed by EFF
The Chairperson said that before this proposal is put to a vote, he wondered about the cut-off date because it also came from the public hearings. The Committee never looked at the possible consequences of the cut-off date in their discussions. The experts who write on this, say that this cut-off date was just a compromise that did not consider the implications. He asked for guidance on whether the Committee should agree to include this proposal, so that they can really go back to the people because this can create serious challenges. He raised this issue because it might come back to bite them if they just delete the date in terms of numbers.
Dr Mulder said that he is a bit confused because on numerous occasions he had heard the ruling party, who are the majority of this Committee, make it clear that they do not propose an amendment to Section 25(7). What the Chairperson had just suggested is a different position to the ANC position, which makes one a bit unsure of what the ANC position is. In any case, there is no proposal from the ANC on this subsection.
The Chairperson said that he just wanted the Committee to be clear when moving forward. This is an EFF proposal which also came up in the public hearings. He had personally looked at expert opinion on this proposal and it can come back to bite them. He wants the Committee to be sure that if they reject this proposal that they do so consciously, and when it comes back to bite them that it is then anticipated.
Prof Lotriet said that she finds it very strange that the Chairperson would make such a proposal, because up until now the Committee has purely worked on what the different parties have proposed. She agreed with Dr Mulder that in all the past meetings the ANC was quite vocal about not supporting this. The Chairperson referred to an expert opinion but this Committee was not appraised by an expert opinion on this particular matter, and it was not contained in any of the ANC documents. She is procedurally against this proposal. She asked the Chairperson if he basically seconded the EFF proposal.
The Chairperson replied that he is not speaking on behalf of the ANC and he is not seconding the EFF proposal. He was just placing on record what had happened before and wanted to know if there were any fresh ideas on the matter.
Mr Shivambu said that the EFF firmly submits its proposal for subsection 7. The Committee should take note that the date, 19 June 1913, is the day that the Apartheid whites-only government enacted the Natives Land Act which basically allocated 7% of South Africa’s land surface to indigenous people who have been dispossessed. There is proper demonstration of the land dispossession that was conducted by the Apartheid colonial settlers throughout history, and even prior to this date which is in the Constitution. To say that it only restitutes land that was dispossessed after this date is problematic, because it does not even scrape the surface of the land reform programme that has to be looked into. The legislation can deal with all of those aspects in terms of “upon which criteria” and “upon which land” will be restituted and for what particular purpose. The legislation will cover all of those issues that are the Members' concerns and fears; but to include that date is to legitimate the Apartheid dispossession which was formalised on 19 June 1913 by the colonial whites-only government, who took the land from our people. To retain that part of the Constitution plays in the hands of the colonial settlers; and it would have never served any purpose. The EFF firmly states that that date must fall and that legislation will deal with restitution as an instrument of land reform and how to utilise it much more meaningfully, in a way that will give access to land for all our people irrespective of race.
The Chairperson said that he noted the fact that the ANC agreed that it would not make any amendments to subsection 7, but he will give Ms Lesoma and Mr Xaba the right to add any comments before the Committee votes.
Mr Xaba asked if the Chairperson suggested that they comment on the EFF proposal.
The Chairperson replied that he had asked them to say whatever they wanted to say.
Mr Xaba asked if the Committee can follow the procedure so that the parties’ position can be presented and voted on, and then the Committee can discuss at the end.
The Chairperson said that he had given Mr Xaba the opportunity to indicate if his position had changed. The Committee can follow the procedure thereafter.
Mr Xaba did not have any comments on the EFF proposal and suggested that the Committee can discuss it further when they engage in political discussions towards the end of the meeting.
Ms Lesoma said that the ANC does not have any amendment to subsection 7. She respects that the Chairperson is entitled to persuade parties also to think otherwise. The Committee is dealing with the Draft Bill that would be advertised, and thereafter the Committee can come back in three weeks’ time to engage on these issues.
Mr Hendricks said that Al Jama-ah supports the ANC position, in that subsection 7 is not amended. Al Jama-ah does not agree with the EFF, that for example the Khoi and San whose land was wrongfully dispossessed should not be considered. Al Jama-ah feels that the way that the legislation stands now, there is an opportunity for the Khoi and San and perhaps other communities to get restitution. Al Jama-ah does not support the exclusion of the Khoi and the San.
The Chairperson said that the Committee can proceed to motion the EFF proposal, although there is no seconder. He asked if there was no proposal from Al Jama-ah.
Mr Hendricks confirmed that Al Jama-ah is in line with the ANC, that there are no proposed amendments for subsection 7.
The Chairperson asked the ANC to formally move for no amendment to subsection 7.
Mr Xaba suggested that the Chairperson check if the EFF proposal has any support.
The Chairperson clarified that the EFF proposal had not been seconded.
Clause h – Section 25(9)
● Al Jama-ah proposal:
(9) Parliament must enact the legislation referred to in subsection (6), "which legislation should include provision for reparations."
The Legal Advisor said that the Al Jama-ah proposal was that the legislation should not exclude reparations. Legal Services had changed this to “should include provisions for reparations”. This renders the same meaning proposed by Al Jama-ah but is clearer, in order to draft in the positive.
● EFF proposal:
(9) Parliament must enact the legislation referred to in [subsection (6)] "this section.’’
Deliberation and voting of Section 25(9), as proposed by Al Jama-ah and EFF
Mr Shivambu said that the EFF proposal is based on the fact that in all subsections, the Constitution already gives directive for laws that have to be passed to realise such. In subsection 1 for instance, it says that “no one may be deprived of property except in terms of law of general application”, so there has to be legislation on deprivation. Subsection 2 speaks of expropriation, so there has to be legislation on expropriation, in terms of expropriation without compensation as the EFF had proposed. In terms of the EFF proposal on state custodianship, there has to be legislation on custodianship, which is why the EFF proposed that there has to be proper legislative measures to realise custodianship of all land. The subsection that speaks to restitution has to reference adequate legislation on restitution, because that is what the entire Section 25 deals with. As an exit point, if all of these are considered in the final amendment, it is proposed that Parliament must enact legislation referred to in the entire Section 25, not just in subsection 6 as it is phrased in the current Constitution.
The Chairperson referred to the Restitution of Land Rights Act (No 22 of 1994) and asked Mr Shivambu if he proposed that there would be another Act or if he proposed an amendment to this legislation.
Mr Shivambu said that in all of these aspects, there has to be legislation on deprivation. There is currently no legislation on deprivation in terms of what would happen. Restitution is provided for, but if one reads the current subsection 7, it already states that those who have been dispossessed of land post 19 June 1913, should according to legislation, be entitled to restitution or equitable redress. This is just a repetition of what is in the other subsections that have dealt with areas that require specific attention which is expropriation, deprivation and restitution. Parliament has the constitutional obligation to provide legislation on those specific areas.
The Chairperson thanked Mr Shivambu for the clarity and asked if there was a seconder to the EFF proposal.
Mr Hendricks thanked Legal Services for making the changes to the Al Jama-ah proposal as it reads more appropriately. One tries to lobby other parties to support one’s proposal, and although Al Jama-ah would expect the ANC to support its proposal. Al Jama-ah also has representatives. He therefore disagreed with Dr Mulder. A party who represents other smaller parties should have debated these issues with the parties it represents, instead of, for example, putting forward the position of the FF+. If the FF+ had the right to make its own position then the Rules of Parliament would have allowed it. If the FF+ represents other small parties then they should consult with those smaller parties. He requested the FF+ to take into account that one of the parties that they represent has put forward a proposal, and Al Jama-ah therefore asks the FF+ to support its proposal. Al Jama-ah also hopes that the ANC will support the proposal. He will not go into detail on the merits of reparations as the Members know about it, it was mentioned earlier about the harm that has been done. Certainly, if harm has been done then reparations must be paid, which is not only about taking the land back but those who have benefitted from it for decades must pay something.
Dr Mulder said that he would not repeat what he had already explained. He wanted to ask Mr Hendricks for clarity on what he means by “reparations” and if the proposal meant that the current owners of land must pay reparations – although Mr Hendricks had provided further clarity.
The Chairperson asked if anyone seconded the Al Jama-ah proposal. He noted that there was no seconder to the Al Jama-ah or EFF proposal.
Ms Lesoma moved for the adoption of the ANC proposed amendments to Section 25 for publication.
Mr Xaba clarified that Ms Lesoma had said that the ANC proposed amendments as supported, would be gazetted for public comments. The public will be given three weeks to make their written submissions.
The Chairperson said that someone would first need to second the motion by Ms Lesoma.
Mr Moroatshehla said that after listening very carefully, he supports and seconds the adoption of the ANC position and that it be taken for publication.
Mr Shivambu said that the EFF officially rejects the ANC proposed amendments for Section 25. The EFF strongly believes that it is a betrayal of the ANC's own resolution and it is a betrayal of the landless people of South Africa, particularly the indigenous Africans who were dispossessed of their land through colonialism. The EFF rejects with contempt and votes against the ANC proposed amendments because they will never outrightly take back the land and give it back to the people on an equitable basis. The EFF opposes the ANC proposals.
Dr Mulder said that all of the parties have made their positions clear throughout the process, so it is not necessary for parties to restate their position. He questioned the process that the Committee would take now, because Ms Lesoma had made the proposal for the amended version of the Draft Bill to be published. He asked for clarity on the advice offered by Legal Services, because there are some amendments that would require the Committee to seek permission from the National Assembly to extend the scope. He asked if the public comments would include only written submissions or if the public would be allowed to make oral submissions. It is important that the process is made clear so that the public know what they are expected to do.
The Chairperson confirmed that the ANC proposal is carried and that the ANC proposed amendments would be advertised as agreed. The second stage of the meeting, as Dr Mulder had questioned, would be the way forward. He asked Ms Lesoma if she would advise the Committee on the way forward or if Legal Services would do so.
Ms Lesoma replied that Legal Services had said that the Committee would need to go back to the National Assembly for permission. However, when the Committee was constituted, the Members were given the mandate to amend Section 25, there was no prescription on the subsections. Although the Committee had previously agreed on a compromise Bill as drafted by Legal Services, the Members were very clear that they would look at the entire Section 25 from subsection 1 until subsection 9. When the Committee was reconstituted, they were again given a mandate to incorporate all the work that was done by the Fifth Parliament through the Constitutional Review Committee (CRC).
Legal Services had advised the Committee to go back to the House despite being fully aware that the House had said that the Committee should amend Section 25, while also being fully aware that what was previously published was a compromise. The public comments on the compromise Bill even spoke to the entire Section 25. Throughout the previous discussions, various political parties made it clear that they would not limit themselves to what was published as a compromise. If there is anything wrong with the Committee's approach, then the House can condone the work of the Committee after the Committee has concluded this process.
Mr Xaba reminded the Committee that the legal opinion was not definite but was a note of caution, which the Committee has noted. He suggested that the proposed amendments to the Draft Bill must go for publication, because the Committee substantively complies with the purpose of the requirement. The requirement was for the Committee to consider that this be sent back to the public, for which the Committee had scheduled three weeks of written submissions. For whatever reason, Parliament says that the Committee should first refer the Draft Bill with proposed amendments to the House before public comment. Then, the Committee will cross that bridge if it gets there, but the Committee has made substantive compliance. If the Committee is wrong, then Parliament will tell the Committee that it is wrong and also advise how it can be remedied, that is the role of Parliament. The role of the Committee is to do its job.
Mr Shivambu said that the correct legislative process in Parliament is that after a Bill is published, there is a call for public hearings and public submissions. The Committee then deliberates and tables a report after concluding what it has taken into consideration from the public submissions and what Members have decided to be legitimate additions to the Bill. The manner that has been suggested now is unprocedural and inconsistent with how legislation is processed in Parliament. The EFF does not agree with the amendments and how the Bill looks like now, but it is unprocedural to republish the Bill again because it has already been published. If the Committee wants to publish the Bill again then it will open the flood gates to all sorts of submissions and public hearings. To republish the Bill is decisively unprocedural for how legislation is processed in Parliament.
Ms Mahlatsi said that Ms Lesoma and Mr Xaba had explicitly presented the understanding of the ANC. The ANC is quite resolute on the expropriation of land without compensation. She suggested that the EFF should familiarise itself with the content of the ANC submission, precisely because there is no way that the ANC deviates from its own policy position. If the EFF had done so, they would understand that subsection 3 speaks about the expropriation of land where compensation is nil. Nil is equivalent to the expropriation of land without compensation. The ANC will not be subjected to dealing with the issues in the manner in which the EFF wants them to be done. The ANC will not be manipulated and dragged into other issues. The ANC should just be allowed to run the process in the way it sees fit.
The Chairperson said that the Committee is now at a stage where it will discuss how it will move forward, because the Committee had already voted on the subsections where the ANC proposals have been seconded, so the ANC proposal stands. The Committee has been given guidance from Ms Lesoma, which has been supported by Mr Xaba. Before the Committee proceeds, he asked Legal Services to comment on the way forward as proposed by the ANC.
The Legal Advisor said that on a previous occasion, Legal Services had presented their legal opinion to the Committee on advertising and extending the mandate by going back to the House to ask for permission. The Committee Members have all received the legal opinion and it can be circulated again. The legal opinion also contained the view of the NA Table. If the Members would like her to go through the opinion again and speak to the various rules that support that legal view, then she can do so. However, she suggested that the Committee point out why it thinks that the Committee should not go back to the House for permission or not advertise, but the legal position remains unchanged. She recommended that the Committee can ask for a second legal opinion if need be.
The Chairperson said that these matters have a political and administrative dimension. Ms Lesoma had correctly said that on the advice of Legal Services, the Committee had adopted a compromise Bill. When the Committee adopted the compromise Bill, some political parties had not yet made their input, but the Committee accepted that compromise Bill to kick start the process. Ms Lesoma had also correctly pointed out that the original mandate from Parliament was amendment of the entire Section 25. That mandate did not limit the Committee to particular subsections. He questioned why the Committee needs to go back to the House, if the House never limited its mandate. It is the Committee who has limited the mandate because of that compromise. He agreed with the view that there is nothing to seek from the House, because the House gave the Committee a blank cheque to deal with Section 25. He asked the Legal Advisor if she agreed.
The Legal Advisor replied that she does not know if she really agrees with that. In terms of protocol, she has to stand by the opinion provided by her Office. Whether she agrees with it or is convinced not to agree with it, she does not have the mandate to do that.
The Chairperson said that he appreciated the legal opinion but he thinks the Members feel as he does, and that they do not agree with the legal opinion. The legal opinion is a technical opinion which does not take the political dynamics into account, that lead to the compromise position. The Committee cannot be bound by the compromise because that compromise contradicts the original mandate that the Committee was given by the House itself. In his view, there is no basis for going back to the House to ask for something that was already given.
Prof Lotriet said that she wanted to put on record that when the Chairperson said that the Committee does not agree with the legal opinion, that it does not include the DA.
Dr Mulder said that the FF+ agreed with the legal opinion as it is technically correct.
Mr Xaba said that there have been substantial complaints about the legal opinion. He agreed that what Mr Shivambu had said is correct, but Ms Lesoma’s suggestion is substantiated. The Committee should go ahead and if Parliament says that the Committee is wrong then they will tell the Committee when the Bill is presented before them.
The Chairperson referred to the issue raised by Mr Shivambu that the Committee is procedurally incorrect that there must be public hearings and public submissions. He asked for clarity on whether Members thought that public hearings were still relevant in this instance.
Mr Xaba replied that the legal opinion made it clear that the publication would be for a limited period, and the Committee could decide what form the public participation would take. The Committee had suggested that it allow three weeks for the public to make written submissions.
The Committee Secretary said that the Committee Support had noted that the Committee has agreed to advertise. He referred to Section 74(5) of the Constitution, which provides that at least 30 days before the Bill amending the Constitution is introduced in terms of Section 73(2), that it must be published in the Government Gazette. The Secretary to Parliament must then refer this to the National House of Traditional Leaders and that within 60 days of such referral, it must make any comment it wishes to make and submit such comments to the Secretary to Parliament. The most important point that should be noted is that Section 74(5) refers to thirty days and not three weeks. He is not sure if the Committee will decide to shorten the period or stick to the 30 days as provided for in the Constitution.
The Chairperson asked if there were implications of not extending the three weeks.
The Committee Secretary replied that perhaps Legal Services should comment on that but he wanted to confirm that the Constitution refers to 30 days and not three weeks.
The Chairperson asked about the reference to 60 days.
The Committee Secretary replied that if these new amendments are sent to the National House of Traditional Leaders that it would then have 60 days to comment; and there is that possibility that it would not submit its comments within those three weeks that the Committee had set aside. If the comments are delayed then the Committee's process will be delayed as well.
The Chairperson asked if it would be a concern if the National House of Traditional Leaders does not comment within the given timeframe.
The Committee Secretary said that perhaps its argument could be that the Committee is acting in violation of what the Act provides.
Ms Mahlatsi said that she is really concerned because as much as she appreciates the work that is done by the administration, she is concerned about information that comes in bits and pieces and that is not consistent. The Committee was informed about the three weeks in terms of looking at the timeframe and time limits. The Committee is now informed about the 30 days and the 60 days. This is unacceptable because this means that the Committee would now need to navigate through the days and the time, which is something that is not necessarily under the Committee's control. She requested that the administration should provide this information in writing, to advise and assist the Committee to operate optimally. The Committee's position was informed by the view that it had three weeks to advertise, as per the advice given by Legal Services and the administration. At the very tail-end of this process, the Committee is told new information. She is quite worried about the information that has not been consistent.
The Chairperson asked who had specifically given the Committee the three-week timeframe.
Ms Lesoma replied that it was Legal Services.
Mr Xaba clarified that Legal Services had not said it was three weeks but the legal opinion referred to it as the 'limited period', so the Committee must be fair. The Bill has already been published and the Committee is now dealing with an extraordinary process that is not provided for in the Constitution. Section 74(5) of the Constitution says that “At least 30 days before a Bill amending the Constitution is introduced”, that is read with Section 73(2) which says that “Only a Cabinet member or a Deputy Minister, or a member or committee of the National Assembly, may introduce a Bill in the Assembly, but only the Cabinet member responsible for national financial matters may introduce the following Bills in the Assembly…”. However, the Committee is not introducing the Bill at the moment. For now, the Committee is completing the drafting of the Bill. Once the Bill has been finalised the Committee will then submit a report to the House to say that the Committee has finalised the Bill. The Bill is still in the making process. Section 73(2) refers to when the Bill is ready to be introduced to the House. He suggested that the Committee not be derailed and that the Committee publish the Bill. It is only when the discussions have been finalised at the very end, that the Committee would then refer to the sections referred to above for introducing a Bill.
The Chairperson agreed that Legal Services did not mislead the Committee, as their timeframe referred to the limited period. The Committee Secretary had also correctly provided the Committee with the relevant provisions in the Constitution. It is also correct to say that the Committee is not starting afresh but it is continuing a process. During the public submissions, some people have said that they have made submissions but they wanted the opportunity to make presentations, and the Committee gave them a limited time to come and make a presentation. He therefore suggested that the Committee proceed to publish and allow public comments for three weeks, and thereafter the Committee will go to the House.
Ms Lesoma said that the Chairperson had summarised his point correctly. She agreed with Ms Mahlatsi and asked why it seemed as if the administration had ignored the lengthy process that the Committee had previously engaged on. She raised her concern that despite open engagements, the administration has never raised these points before. In the meeting last week the Committee agreed that it would consider the Draft Bill by voting on the various positions of the political parties and then publicise it, yet no one raised this issue. However, the Committee is still in the making of the Bill, and the only harm is that it would be more work for the administration. The ANC has done its homework on this process as they have legal officials advising them but they have also communicated with Parliamentary Legal Services.
The Chairperson said that he thinks that it is important that the Members' attention is drawn to these sections, so that the Committee can have political discussions as it just did. Section 74(5) and Section 73(2) would apply if the Committee was starting a new process, but this is not a new process and the Committee is just completing an ongoing process.
Mr Shivambu said that there is no provision in the Constitution or in the NA Rules, that gives the Committee the right to republish the Bill after deliberations. Public hearings were conducted and submissions were made. There is no way that the Committee can republish a Bill after it has already been deliberated. Once a Committee has deliberated and considered all public submissions, it then tables that to the House for consideration. The process proposed by the ANC is inconsistent with the prescript of the role of the NA and the Constitution. When there is a publication, the Committee is then bound to consult everyone who must be consulted according to the Constitution. The process proposed by the ANC is venturing into a new territory which is going to lead the Committee to the wrong prescripts and practices. The ANC has adopted a reactionary amendment to the Constitution, which should be tabled in Parliament for the parties to then vote against each other, and then proceed from there.
The Chairperson said that Mr Shivambu was correct to say that the Committee is required by law to consult before publishing, but if the Committee decided that it would publish for three weeks that means that people will have the right to comment and make submissions, so he does not understand the point that was raised.
Mr Moroatshehla said that he has listened to the debate, but the Committee has been labouring on something which has become very clear. The differences are very slight and are just a question of semantics. Every Committee of Parliament has been accorded legal support in the instance of the failure to interpret the way forward or the next route to be taken. The legal support would have to assist in this so the Committee will not be found short at the end. He thinks that it is the right time for legal support to advise what route the Committee should take next.
The Chairperson said that the legal support has been invited to do so, when they made reference to Section 74(5) provisions, but some Members have said that those references would apply if the Committee was starting this process afresh. The Committee is merely continuing with ongoing work so there was no need to refer to those provisions. He thinks that Members have agreed on the publication of a Bill, informed by the debates and public hearings, so this is just a supplementary process to complete the Committee's work. This meeting should be concluded on the basis that it will publish this Draft Bill that has been voted on, to then invite the public to make supplementary submissions. The supplementary submissions will be allocated three weeks. When the Committee tables its report, Parliament can correct the Committee at that point, but the Committee has to proceed.
Mr Xaba agreed with the Chairperson's proposal. Mr Moroatshehla seconded.
The Chairperson asked if there was any counter motion.
Mr Shivambu said that the EFF objects to the ANC resolution.
Dr Mulder said the FF+ does not support the ANC proposal. He questioned if the Committee intended to finish with a Bill or a report.
The Chairperson replied that the Committee intends to finish with the Bill and a report.
Prof Lotriet said that the DA does not support the ANC proposal at this point. The DA would like to know what the guidance from Legal Services would advise, because the Committee has different views on the correct procedure.
The Chairperson asked what Members thought about getting a second legal opinion.
Mr Xaba said that the majority agreed that the Committee should move forward in the manner that the Chairperson had proposed.
The Chairperson agreed and said that he had noted the objections but the majority decision is that the Committee should move forward.
The Chairperson agreed to Ms Lesoma's suggestion that he touch base with the National Assembly House Chairperson, Mr Cedric Frolick.
Motshekga, Dr MS
Gondwe, Dr M
Gumede, Mr SN
Lesoma, Ms RMM
Lotriet, Prof A
Mahlatsi, Ms KD
Masipa, Mr NP
Mbabama, Ms TM
Moroatshehla, Mr PR
Mulder, Dr CP
Ntobongwana, Ms N
Shivambu, Mr F
Steyn, Ms A
Tambo, Mr S
Thring, Mr WM
Xaba, Mr VC
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