Section 25 Review Process
Hansard: Expropriation of Land without Compensation
Motion: Expropriation of Land without Compensation
Draft Bill, with party proposals
Call for comment: Further submissions on the Draft Constitution Eighteenth Amendment Bill
In this virtual meeting, the Chairperson summarised the legislative process that the Committee has gone through this far in amending Section 25 of the Constitution. Although there are still some disagreements on certain key issues, the deliberations on the previous Friday led to the adoption of a revised Bill by the majority. In this meeting, the Committee met to formally table and note this amended Bill before it is published for public comment, and to agree on the timeframe moving forward.
After Members noted the Bill, it was agreed that the Committee would publish the Bill from this day, 16 July 2021, and issue a statement to various stakeholders to commence the process for public comment until the 13 August 2021.
The DA and FF+ took note that the amended Bill would be published as proposed by the majority, but were still of the opinion that the Committee should have first gone to the National Assembly for permission, as some matters may be outside of the mandate of the Committee.
The EFF agreed that the Committee is mandated to amend the entire Section 25 of the Constitution, but believes that the revised Bill will not permit the expropriation of land without compensation and therefore firmly objected the revised Bill as it currently appeared.
The Chairperson concluded that the Committee has noted the Bill, which was adopted by the majority. The Committee will proceed to publish the revised Bill.
Opening Remarks by the Chairperson
The Chairperson welcomed all Members and other stakeholders to the virtual meeting. The question facing the public is: where is the amendment of Section 25 of the Constitution going? As Chairperson of this Ad Hoc Committee, he is charged with the responsibility of amending Section 25. He is like the captain of a ship; he has to ensure that the ship is not rudderless and remove any obstacles on the path of the ship.
After its appointment, the Committee had convened a constitutional dialogue involving all stakeholders to involve the public in the ensuing legislative process as required by the Constitution. At the beginning of the legislative process, not all the proposals of the political parties represented in this Committee were considered. The Committee adopted a compromised Bill that was prepared by the Parliamentary Legal Services. This Bill did not mandate the Committee to address all the subsections of Section 25. The Committee was not advised of the deviation from the original mandate of the Committee. When the Committee called for written submissions, the submitters addressed all subsections of Section 25. The public also complained that the Bill was published during the festive period and called on the Committee to extend the period for written submissions; the Committee acceded to this request to ensure meaningful public participation.
Due to the outbreak of the COVID-19 pandemic, the Committee failed to meet its deadline and its lifespan expired. Therefore, it could not complete its public hearings. Parliament re-established the Committee to allow it to complete its public hearings and prepare its report. In the written submissions, some submitters requested permission to talk about their submissions and they were granted to do so without reopening the public hearings. The administration prepared a report, which was adopted unanimously by this Committee as a living document. The Parliamentary Legal Services prepared and presented a Bill, which was discussed extensively by the Committee.
One of the questions that were raised was whether the Committee was mandated to address all the subsections of Section 25 or limit themselves to the subsections addressed by the compromised Bill. The majority of the Committee Members recognised that the original mandate given by the National Assembly did not limit the Committee to only two subsections. Besides, they realised and acknowledged that the parliamentary democracy is both representative and participatory. The Constitution provides for participatory democracy because public representatives do not command the monopoly of wisdom. In fact, where the courts found that Parliament failed to ensure meaningful public participation, it struck down the legislation. In pursuit of this imperative constitutional public participation, the Committee agreed to consider all the subsections made during the public hearings. These submissions compelled the Committee to address Section 25 as a whole, to accommodate the submissions of the public. This decision was also in line with the Committee’s original mandate.
During the legislative process, all political parties represented in this Committee were allowed to hold bilaterals and to touch base with their principals and advisors, to ensure that they have properly mandated positions. The parties agreed that none of the parties have the two-third majority in the House and that parties should “give and take” in order to reach consensus for the passage of the Bill. Thus, the parties were given a further opportunity to reconsider their positions and come back with revised submissions. At the end, there were still some disagreements on certain key issues such as state custodianship, expropriation of land with nil compensation, and the 19 June 1913 cut-off date. The Committee decided to discuss Section 25 clause-by-clause and put all the matters to a vote. The deliberations led to the adoption of a revised Bill by the majority.
After consultation with the leadership of Parliament, he came to the conclusion that he must not publish the amended Bill without formally tabling it before this Committee for notice, not for discussion. He wants to place on record that the publication of this Bill does not start the entire process afresh or open the sections covered by the original Bill for discussion. The new process is a supplementary process to ensure that the Committee closes any loophole that might have arisen in the process and to ensure that the Committee differs on substantive, not procedural issues.
Committees of Parliament are entitled to seek legal opinions from Parliamentary Legal Services and/or outside experts, and commission research reports by impartial state institutions such as the Human Sciences Research Council (HSRC) and research institutions at universities. The Committee has not exhausted all of these options. There are some areas where the Committee could benefit from outside legal opinions and research reports. The management committee, in consultation with the leadership of Parliament, will reserve the right to seek outside legal opinion and/or to commission a research report to address conceptual issues that divide the parties unnecessarily.
In conclusion, he requested Parliament to allow the Committee to publish the revised Bill for public comment over this coming weekend. He will now request the Committee Secretary, Mr Vhonani Ramaano, to give the Committee a report on the publication of the Bill and the timeframes for the conclusion of the Committee’s work. The purpose of this meeting is not to reopen any discussion of the Bill but to agree on the timeframes to ensure that the Committee completes its work before 31 August 2021.
Mr Vhonani Ramaano, Committee Secretary, said that the initial intention was for the Bill to be published in the previous week, which did not happen, as the Chairperson explained. It was since proposed that if the Committee agrees, then the period for comments should start from today. The Committee’s communication services will issue a statement and prepare the advert that will be sent to various stakeholders for the process to then commence. The proposal was that from now until the 13 August 2021, the proposals should be out for public comments. From 17-18 August 2021, it is proposed that the Committee present a summary of the submissions received. It is questioned whether the Committee will hear oral presentations from identified stakeholders, which is something that the Committee will have to discuss. On 19-20 August 2021, legal services would then respond to any issues that would have arisen. On 24-27 August 2021, it is proposed that the Committee would deliberate on the Bill and on the 30 August 2021, the Committee will meet to adopt the report on the Bill.
The way that this programme was drafted was based on the assumption that the Committee will not go back to the House for an extension of the mandate, as the Chairperson had indicated that the Committee would not start the process afresh but continue with further submissions, so that some of the issues that were raised in previous meetings would then not apply.
The Chairperson said that the programme was in line with his understanding of where the Committee is and where it is going. He agreed that, after receiving the summary of submissions, that the Committee will then decide whether or not it will have any submitter speak to any of the submissions. The process going forward will be managed by the management committee in consultation with the leadership of Parliament. Depending on the submissions, the management committee will reserve the right to request legal opinion or research. If the Committee takes this route there is no reason why the Committee will not complete its work in time.
Dr C Mulder (FF+) asked who constitutes the management committee. He asked if he can be guaranteed that the Members of this Committee will receive all of the submissions and not only receive a report with a summary of whatever was received.
Ms R Lesoma (ANC) moved for the adoption of the Bill, because the adoption needed to be formalised.
Mr P Moroatshehla (ANC) said that after the enabling explanation and inputs from the opening remarks, it makes sense for him to rise in support for the adoption of the Bill.
Mr S Gumede (ANC) supported the adoption of the Bill. He asked if the Committee could consider that the Bill be published in combination with the programme that has been outlined by the Secretary.
Prof A Lotriet (DA) asked if the Chairperson would ask the different political parties whether they support the proposal that has been seconded.
The Chairperson replied that he would, but he first wanted to hear from Members who had raised their hands.
Dr Mulder said that he is a bit confused, because the Chairperson had originally spoken about the process and not the Bill. When the Chairperson spoke about the process, he said that after consultation with the leadership of Parliament that the instruction was that the Committee should note the Bill for today. Noting the Bill is something different to the proposal by Ms Lesoma. He asked for clarity on the process. He said that if the Chairperson wants to put the Bill formally then the Committee would have to deal with that now, but he suggested that it be dealt with separately to the timeframe and that it not be dealt with jointly.
The Chairperson responded to Dr Mulder’s question and said that the management committee is convened by himself (Chairperson), the Committee Secretary and parliamentary staff. In terms of the question on whether Members would receive all the submissions, he responded that the Members have received the submissions in the past, after a lengthy debate. He added that there should not be a problem with that because nothing should be done behind anybody’s back.
In terms of what Ms Lesoma had motioned for, supported by Mr Moroatshehla, the Chairperson explained that it is not necessary because the Committee is tabling the Bill, not for discussion nor approval; because on the previous Friday, the Committee had discussed Section 25 clause-by-clause and there was a majority decision that the Committee would publish the Bill. So, the Committee is not requesting any new proposal to approve the Bill. As Chairperson, he will just request all Members to take note of the Bill and then instruct the administration to publish it from today.
Ms Lesoma said that she has now understood the Chairperson. She formally takes note of the Bill.
The Chairperson said that Mr Gumede had suggested that the Committee also publish the timeframe, which is perfectly right, because the public can be aware of what the Committee is doing and by when the Committee wants to complete the work, and so that the public also does not waste any time when responding.
Mr Ramaano said that the programme outlined would not usually be published in newspapers, but once the programme is adopted and approved by the House Chairperson then the programme can be flagged. He asked the Chairperson for clarity on whether the administration should publish the whole Bill or only publish the new amendments.
The Chairperson replied that he thinks that Mr Gumede would agree that the process would be for the Committee to go back to the House Chairperson and get further guidance. In response to whether the administration should publish the whole Bill, he said that last Friday, the Committee discussed Section 25 clause-by-clause and the majority decided on a revised Bill. So, his understanding is that the administration should publish everything that was agreed to by the Committee.
Dr Mulder agreed with Mr V Ramaano that the timeframes are not usually published. He understood that there would be a press statement or press release about the following process. He thought that the press release should indicate the dates to inform the public. In terms of the publication, what the Committee had adopted last week Friday is what the Committee had received in writing this week, on Wednesday, and that is what should be published.
The Chairperson thanked Dr Mulder for his input and asked if anyone had a different view.
There were no differing views amongst Members.
The Chairperson said that Members were in agreement to the way forward. He expressed hope that all political parties are fully aware of the great significance of this process and that South Africa will rise or fall based on how this Committee will handle and conclude this process. All political parties would agree that this is not a matter amongst themselves as public representatives, but this is a matter of national interest. All the people of South Africa, both black and white, have an interest in the resolution of the land question that has been with us during colonial times and during the apartheid times. The current Covid-19 pandemic has negatively affected our economy. The economy has shrunk and unemployment, especially amongst women and youth, has risen to unprecedented proportions. “The resolution of the land question will open the economy to the majority of South Africans and it is the only way in which we can realise and implement economic recovery and development plans that were adopted by Parliament”, he added. He wishes all Members and their constituencies well in concluding this work.
Prof Lotriet said that the DA agreed to most of what the Chairperson had said, because it is very important and it is in light of it being so extremely important that the Committee does this in the right way. The DA takes note of the Bill that is to be published, and the party also endorses the fact that the public should comment. She wants to put on record that, although this Bill will be published for public comment, the Committee should note that what is being published is outside of the mandate that was given by the National Assembly. The DA is still of the opinion that the Committee should have first gone back to the National Assembly, as the Committee is now asking public comment on a matter that is outside of its mandate. Be that as it may, the DA takes note of the Bill – not that the party supports it, but it takes note of the Bill to be published.
The Chairperson thanked Prof Lotriet and said that no party in this Committee can be a judge in their own course, and so the question about the Committee’s mandate is a matter that the Committee will leave to Parliament; when the Committee reports, Parliament will then tell the Committee whether it exceeded the mandate or not and then address the remedial action.
Mr F Shivambu (EFF) said that the EFF wants to place on record that they still believe that the process was transparent, fair and consistent with what Parliament has mandated. The EFF does not think that the draft Bill is going to permit the expropriation of land without compensation. It is a sell-out Bill, and it is just revolving around the same question. “The ANC is failing our people and will leave them with no option but to engage in extrajudicial processes of land reform in South Africa”, he said. So, whatever is happening in South Africa now will look like a picnic when the people have to take land for themselves because politicians are failing to fulfil historical mission through the constitutional means. This is the EFF’s recorded, fundamental and primary categorical objection to the Bill in the manner in which it currently appears.
The Chairperson thanked Mr Shivambu for letting the Committee know that the process was transparent and legitimate, but he disagrees that the Committee has reached a stage where Members should reject the Bill and cast aspersions on any party. In this meeting, the Committee is just agreeing on the process to go back to the public to get comments and after the public comments, the Committee will produce a Bill, which he has no doubt that will take this process forward and deliver a product that is in the best interest of all the people in South Africa, both black and white. It is premature to judge and to suggest that people should take the law into their hands because parliamentarians are failing. Parliamentarians have not yet failed; they are hard at work. They have agreed on a problem and he has no doubt that that problem will be followed and produce the desired results.
Dr Mulder said that one person’s failure may be another person’s success, which is relative as they speak. He does not think that it is in order for Members of Parliament (MPs), who swore allegiance to the Constitution, to threaten with extrajudicial processes and to basically try to get the country into anarchy. But there are no surprises there, as Members know where that comes from.
The FF+ also objects to the Bill and also believes that it is outside the mandate and outside the process. But be that as it may, it should then be published as agreed. The public should be given the opportunity to respond and then it will be up to Parliament to then take the necessary decision. However, he would like to conclude by saying that if a statement is going to be issued on behalf of the Committee, he appeals that the statement would be a factual statement based on the facts and the process, not on the interpretation of a part or a section of the Committee.
Mr Moroatshehla said that the current inputs and where the Committee is, is actually making him get lost in the house, because the Committee had agreed on and adopted the Bill as it is and thanked the Chairperson for his patience by not quickly publicising the Bill after being adopted last week. The Chairperson had waited until this day for this formal adoption. Now that this Bill is formally adopted, it is premature for Members to say that their stance on the Bill is “this and that”, because the Bill as yet is not a finality; this is the Bill as seen and adopted by the Committee. The Committee is not Parliament, but for parties to now raise their voices and insinuate that they can rise up and revolt and do whatsoever is premature. He urged that Members agree that they have finally arrived at the adoption of the Bill. It is also true that it would not just be a unanimous agreement and that other people will continue to see the Bill differently. But he does not think that the input by parties, based on where the Committee is today, is assisting. All said and done, he pleaded that the Committee can agree that they have arrived at the point where they can agree that the Bill go out for publication. That is the be-all-end-all; the other things will come after the public has made additional comments, and the parties shall also make their additional comments at that time but not now.
Ms Lesoma said that, in terms of the Bill that has been tabled, the ANC is very logically clear that the House did not mandate the Committee to select subsections but it mandated the Committee to amend Section 25 as a whole, which is exactly what the Bill reflects. The ANC are a responsible government and are leading in government, and hence, the ANC takes into account the material conditions that South Africa finds itself in. One cannot compare South Africa with other countries; it is a unique country and the ANC strongly affirms that they believe in a multi-tenure ownership, which is public, state and private ownership. The ANC will lead this process very responsibly and will not be reckless.
The Chairperson reminded the Members that all MPs have taken an oath to uphold the Constitution of the Republic of South Africa (Act No. 108 of 1996) and to also uphold the rule of law. Therefore, no MP can make or threaten Parliament with anarchy because that will be contrary to the oath taken for any Member who threatens Parliament or the country with anarchy or the use of unparliamentary activities to undermine the Constitution and the rule of law. He agreed with Mr Moroatshehla that the Committee has noted the Bill, which is the Bill that was adopted by the majority last week Friday. The Committee will go ahead and publish the Bill. He also agreed that it is premature for Members to say that they reject the Bill because this Bill is still going out for public comment and the Committee would thereafter still debate; it is only then that Members can decide whether they reject or accept the Bill. He agreed with Ms Lesoma, that this Committee was mandated to look at Section 25 as a whole, and the Committee had done so and now have the revised Bill that will go out for public comment.
He thanked Members for their attendance and guidance. The Committee knows where it is going from here and the people will know where the Committee is taking them to. He assured Dr Mulder that the Committee has a very professional media department, led by Ms Rajaa Azzakani, that has always issued statements that were beyond reproach. He also makes sure that he does not interfere with her statements; she submits them to him for approval, which is just a formality but he does not redraft anything to put his own ideas, because he is not a journalist and she is much more qualified than him in that area. She always captures the discussions in an impartial manner, and as she did before, it is assured that it will continue in this manner; there should be no fear. The statement will be released by parliamentary media services.
He thanked Members and urged Members to stay safe so that the Members can witness the conclusion of this process and be proud of what they have produced in the best interest of the people of South Africa.
The meeting was adjourned.
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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