Draft Constitution Eighteenth Amendment Bill: Committee Extension; Report on public submissions

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Meeting Summary


Section 25 Review Process

In this virtual meeting, the AdHoc Committee discussed the need for an extension, the report on public submissions and the third revised draft Bill. The Committee decided on the next steps to be taken on these matters.

The Chairperson of the Committee provided an overview of the process to date and the need for an extension. It was highlighted that the Management Committee had mandated Parliamentary Legal Services to prepare a revised third draft of the Bill, informed by the public submissions. The Chairperson noted that Members would require further consultation with their political parties so as to receive further mandates. The Chairperson suggested that it would only be Members who ‘put their ideological and party-political interests above the interest and will of the South African people,’ who would not support the amendment.

The Chairperson addressed the allegations that the Parliamentary Legal Services were not loyal to the decisions of the Committee. The Management Committee and the leadership of Parliament had looked into the matter and come to a ‘firm determination’ that both Parliamentary Legal Services and the Administration were ‘loyal to the Committee.’

Members of the Committee raised a number of issues. It was highlighted that the Committee had not sat since 14 July 2021, and the extension was being requested close to the deadline. It was suggested that the African National Congress had chosen to submit a request to Parliament for an extension and that a two week extension had been granted. The Democratic Alliance held the view that the constant moving of goal posts was because the African National Congress and Economic Freedom Fighters knew that they would not get a two thirds majority, nor the votes required, to pass the amendment. It was suggested that the Committee should come to its proper end so that a land redistribution policy could be introduced. The FF+ rejected the suggestion that ‘those who did not support what was on the table’ were ‘not loyal South Africans,’ as implied by the Chairperson. The revised third draft of the Bill was suggested to only contain some of the inputs made in the public submissions, such as moving the date back from 1913 to 1800. Clarity was requested if public participation would take place on the third draft Bill. The proactiveness of the Parliamentary Legal Services in preparing the third draft Bill was appreciated by some Members and it was noted that the Committee still needed to take a decision on that.

Parliamentary Legal Services highlighted the two material amendments that were informed by the public submissions. The two material amendments included the change of date from 1913 to 1800 and the exclusion of ‘communal land.’ The Parliamentary Legal Services outlined the process that needed to take place. The process would depend on the decisions taken by the Committee. If the Committee accepted the two material amendments, those two amendments would need to go through a public participation process as well as go to the National House of Traditional Leaders and Provincial Legislators.

Concern was raised by Members that the two weeks might not be sufficient if the revised Bill were to undergo another public participation process. There was a request that the Committee receive a formal presentation on the public submissions so as to get proper directives from their political parties.

Meeting report

Opening Remarks
The Chairperson stated that there were two items on the agenda for the meeting. The first was the consideration of the report based on the submissions made between July and August 2021; the second was to consider the revised Bill based on the submissions. The idea was not that the Committee discuss the revised Bill and take decisions, as it appeared that Members would need further mandates from their political parties to engage with it. Given that the lifespan of the Committee was expiring, the Committee would have to consider if an extension should be requested.

The National Assembly bestowed a great honour on Members, by appointing them to serve on the Committee. The work of the Committee needed to be conducted according to the Rules of Parliament, the Constitution and the law. The lifespan of the Committee would come to an end on Monday 30 August 2021. The Committee had conducted its duties and responsibilities loyally and diligently and had done everything to the best of its ability to finalise the amendment. The National Assembly was kind enough to grant an extension until 30 August 2021. Through no fault of the Committee, the Committee found itself unable to finish its work because some parties did not have mandates to address certain aspects of the Bill, for instance, the amendment of Section 25(7) of the Constitution. In the advertisement that was issued in July 2021, the Committee called for comments on clauses (1) to (5) and did not include clause (7). Parties were therefore unable to deal with that clause. The Committee had also not dealt with the issue of communal land which required consultation with the National House of Traditional Leaders. The Committee called for submissions that excluded the cut-off date of June 1913. There was a question of communal land ownership versus participation by virtue of being a productive user of the land. The consideration of these outstanding questions required that parties sought mandates from their principals.

On the basis of the submissions made on/or before 13 August 2021, the Management Committee (MANCO) mandated the Parliamentary Legal Services to produce a revised Bill including the outstanding issues. This required Members to have further consultation with their party principals. The revised Bill demonstrated that the people were the final arbiter in the Constitution making process. Where the Committee was not able to find common ground, the People had helped the Committee to do so. He was confident that if Parliament granted the Committee a further extension of two to three weeks, to allow parties to consult and allow the Committee to comply with the Rules of Parliament governing the process. The Committee would reach consensus and pass the Eighteenth Amendment Bill.

It would only be people who ‘put their ideological and party political interests above the interests and will of the South African people, both Black and White, who would not support this amendment.’ In dealing with this amendment, the Committee must bear in mind that the amendment was needed to speed-up land reform to address the deepening moral and inter-generational social ills. It would afford the country much needed social and economic recovery, without which the Country would be plunged into ‘war of all against all in competition for scarce resources.’ He appealed to the Committee’s patriotic consciousness to cooperate with one another to ensure that the Bill was passed to give South Africans ‘a new hope’ despite the COVID-19 and Gender-Based Violence (GBV) ‘pandemics.’

There were doubts amongst some that the Parliamentary Legal Services were not loyal to the decisions of the Committee. MANCO and the leadership of Parliament looked into these matters and came to a ‘firm determination,’ that the Parliamentary Legal Services and the Administration were loyal to the Committee and had gone out of their way to ensure that the decisions of the Committee were implemented. The Parliamentary Legal Services and the Administration was made up of professionals with professional integrity, who had to uphold the law and the Constitution and provide advice, not to please the Committee, but based on the Constitution and law. He commended the Parliamentary Legal Services and Administration.

The Chairperson reiterated what items would be covered in the meeting. The report on the submissions made from July to 13 August would be tabled. The draft Bill based on input would be noted – as it was meant to assist Members to go back to their party principals to seek fresh mandates. The Committee would also consider if the process to date had complied with the letter and spirit of Parliamentary Rules, the Constitution and the law.

Adv G Breytenbach (DA) stated that she did not agree with everything that was said by the Chairperson. She asked to place on record that the Committee had not sat since the 14 July 2021, it was now the end of August 2021 and close to the deadline of the Committee’s lifespan. At this 99th hour, the African National Congress (ANC) had chosen to submit a request to Parliament calling for an extension of the Committee’s lifespan. This was a unilateral decision that was taken without any discussion with the other political parties – this was regrettable. The Committee’s mandate was due to expire on the 30 August 2021, at the moment the National Assembly was dealing with the request for an extension. From what she understood the Committee would be given a two-week extension – that should be the end of it. There was nothing that needed to be dealt with that could not be finalised within two weeks. Every effort should be made to finalise it in two weeks.

The Democratic Alliance (DA) held the view that the constant moving of goal posts was simply because the ANC and Economic Freedom Fighters (EFF) knew that they would not get a two thirds majority nor the votes required to pass the amendment. This was because the amendment was ‘still-born and dead in the water.’ It was postponing the inevitable. She hoped that this would be the last extension and that the Committee would come to an end, as it should. They could then get on with the real work of proper land redistribution policy and work together to make sure that it happened in a fair and equitable manner. This Committee would not give rise to such a fair and equitable process, in the DA’s view.

The Chairperson asked to put on record that the request for postponement did not come from the ANC nor the EFF. It came from the MANCO. The new issues that had arisen, which the Committee was obliged by law to deal with, required some time. Therefore, he put his ‘own head on the block,’ as Chairperson of the Management Committee. ‘MANCO was not influenced by anybody outside thereof’ MANCO was influenced by Parliamentary Rules. He thanked Adv Breytenbach for her positive approach to the matter. He agreed that the Committee should have no further excuses not to proceed and conclude and work together to address the land question in the best interest of the people of South Africa.

Dr C Mulder (FF Plus) stated that the longer the Committee continued with this process, the more it felt as if the Committee was in ‘quick-sand’ – falling deeper and deeper into trouble. The Chairperson had provided a summary and introduction on his perception of what the Committee was busy with. He thought it was unfortunate, he did not think anyone could say that ‘those who did not support what was on the table,’ were ‘not loyal South Africans’ or ‘did not have the best interests of the country in their hearts.’ He suggested that the Committee should perhaps have a debate about what was meant by ‘the people.’ There were different interpretations of that.

He requested clarity about where the Committee was at present. The Committee started off with a motion from the House, his view was that the Committee was clearly outside of the mandate of that motion. There was a proposal by the EFF that the Committee should deal with custodianship. The ANC then amended that motion and the whole idea of custodianship was removed from the motion that was adopted by Parliament right at the beginning. That was the basis for the Committee’s whole process. Now the EFF had brought back the idea of custodianship and it was included in the second draft Bill.

After the motion that was adopted, at some stage the Committee adopted a compromised Bill and public hearings were held on that. The Bill went through a whole process of public participation. The Committee then interacted and parties were allowed to put their positions on the table. All parties had the opportunity to get clear mandates from their principals. This was done. This was then discussed in the Committee and decisions were taken. The ANC proposed amendments and adopted them, with the ANC’s majority, all the other parties voted against those amendments. That was put into a second draft Bill which was published and opportunity was given to comment on that until the 13 August 2021 – that was the second draft Bill. Then nothing happened.

If he understood correctly, the inputs were received from the public and ‘somehow’ there was an extrapolation done from the inputs that were received and a mandate was given to Legal Services to draft a third Bill. It seemed as if the third draft Bill dealt with one or two issues that came out of only some of the proposals on the second draft Bill. No public participation had taken place on the third draft Bill that was currently on the table. It seemed as if it had been quite selectively decided, which issues needed to be addressed and should be put into the third draft Bill. It was a selective process. People who made representations on the second draft Bill were not aware of the third draft Bill. The third draft Bill dealt with certain things – such as moving the date back from 1913 to 1800 – which was quite an interesting notion. The Boer Republics were ‘up for grabs’ once again because they existed after the 1800s – that would be an interesting discussion on its own.

The only reason the Committee needed new mandates was because there was suddenly a third draft Bill. The third draft Bill seemed to be a one-sided affair. Someone had decided that one or two of the issues from the public submissions should be included and a further draft should be created based on that. Would public participation take place on the third draft or would the public not be consulted on that? As pointed out by Adv Breytenbach, there was a discussion that took place in the Programming Committee and it was agreed that an extension would be granted for a further two weeks. That was where the Committee stood. A third draft Bill would open-up a number of questions.

Mr S Gumede (ANC) did not appreciate that certain decisions were being construed as ‘ANC decisions,’ when this was not the case. Some Members seemed to be privy to information that other Members did not have, for instance some Members already knew about the extension. It was the first time he had heard that an extension had been granted for an additional two weeks. If it was raised by the Chairperson of the Committee, it would have been interpreted as if it was ‘the ANC that made its own choice.’ He noted that the Chairperson had said that the decision was not one of the Committee’s. He believed that Members did not need to ‘accuse’ one another of decisions not made by them.

The Committee last met when the advertisement was being processed. The Committee had known that it would need to wait for the outcome. The deadline was the 13 August 2021. Legal Services had been proactive in making all the preparations that the Chairperson had called for. After the advertisement, responses were received, thereafter the Legal Services prepared the report which would then be presented to the Committee during the meeting. The report would indicate the implications of the public responses.

If the Committee decided that the third draft Bill was not needed – that was the decision of the Committee. The report that would be tabled before Parliament would determine the closure or the end of term for the Committee. Legal Services had the capacity to prepare the report between Thursday and Monday 30 August 2021, which could be tabled in Parliament. No one was wrong – it was only that there were circumstances that had come up, in considering time Legal Services were proactive enough to prepare the third draft Bill. He begged the indulgence of the DA and Freedom Front Plus (FF Plus), the Committee sought its ‘honest guidance and common view’ so that the Committee could conclude. If the two thirds were obtained or not – that would be determined when the Committee went to Parliament, presented and voted.  

The Chairperson addressed his statement to Dr Mulder. At this stage, he was not interested in a ‘two horse race,’ he was ‘not interested in the ANC and EFF.’ He was interested in what was in the best interests of the people of South Africa as a whole, both Black and White. It was his wish that all political parties, including the EFF and ANC, would for a while put aside their political positions and party-political interests and put the best interests of South Africans on the agenda and seek to work with other parties to find a solution that would be in the best interests of the people of South Africa. As Chairperson of the Committee, he was custodian of the deliberations and decisions of the Committee. He knew what had been agreed on in the past. He did not adopt a selective approach in dealing with this matter.

He found that the critical issues in the report did not include State custodianship – the overwhelming opinion was that the people had not had an opportunity to own land from the 1800s. People wanted ownership. There was no way to convince South Africans ‘that the State must own everything.’ There was a recent court ruling on the Ingonyama Trust Board, where the King owned the land and leased it out – the court turned that down. If one took all South African land and gave it to the State, the people would still go to court and say that ‘they wanted to own land.’ Some would prove that they had owned the land and it was taken away from them. The State custodianship, as initially proposed had not been accepted by the people. It was accepted that the expropriating authority needed to have custodianship of expropriated land pending the redistribution of that land. He had no doubt that even the EFF would be persuaded that their idea of State custodianship was not practicable or acceptable to the people. He wanted to believe that the EFF would accept the will of the people.

On the issue of the ‘Boer Republics being up for grabs,’ it was the Boers themselves who agreed with the British that the Boer Republics should come to an end. The Boers and British developed the land policies together – he did not see where the Boer Republics came into play.

He agreed with Mr Gumede. He had also not known that the Committee had been granted an extension of two weeks. That was why he had said in his opening remarks, that if the Committee could be given an extension of two to three weeks he was confident the Committee could conclude its work. He was happy that Parliament, through the Programming Committee, had provided leadership in this way. He assumed that because the Committee reported frequently to Parliament, through the Office of the Chair of Chairs, that Parliament was aware of what the Committee was doing and they exercised their own minds and came to the determination that the Committee deserved an extension for two weeks. It was not the ANC or himself. He had come to the meeting to propose to the Committee that Parliament be approached for an extension. Parliament had already done that. The Programming Committee as an organ of Parliament was ‘higher than all of them,’ it was ‘superior to the AdHoc Committee.’ The AdHoc Committee had no authority to reverse the decision of the Programming Committee. The Committee needed to accept the decision. The Committee should strive to reach consensus and ‘pass the Bill.’

He suggested that the Committee compile the report and submit it to Parliament on Monday 30 August 2021. The Administration had already started compiling the report and had finished the report on the submissions, which was before the Committee. The draft Bill had also been compiled. The draft Bill was for noting and would be used as a basis for consultation with their party principals. This process was a ‘give and take process,’ to borrow the words of Mr Moroatshehla, as stated in past meetings. There were two weeks in which that ‘give and take’ should happen. A solution needed to be found as the challenges facing the Country were huge. From the following Tuesday, the Committee would meet regularly to find a solution.

Mr P Moroatshehla (ANC) stated that this platform was created and mandated to address the issue, which was a matter of serious concern to all South Africans. On behalf of the ANC, he wanted to accept the notion that the Chairperson had brought forward, that the lifespan of the Committee had been extended by two weeks. He believed that at the same time Members on the platform should be persuaded regardless of their political parties, that the Committee had been given ‘a last jab’ for two weeks. If used properly, it was two weeks that could ‘bring with it wonders’ – it would be a moment of ‘glory’ wherein their sons and daughters would see that the Committee had been given a mandate and had delivered on that mandate. He was worried about what he heard from the DA and FF Plus; it appeared as though those parties wanted the ‘process concluded abruptly.’ He did not doubt that there was still opportunity to find each other, what was important was not a particular political party’s view – but the provision of the solution to what was a matter of concern to all South Africans.

The Chairperson noted that Dr Mulder had wanted to know if there would be public hearings on the third draft Bill. All he knew was that the Committee was given two weeks. He would consult with the Parliamentary Legal staff to see if it was possible to invite further comments or if it was just for the political parties to engage on. He suggested that, as Parliamentary Legal Services were present in the meeting, they might be able to shed some light on the matter.

Adv Charmaine van der Merwe, Senior Legal Advisor, Parliament’s Constitutional and Legal Services Office, stated that the draft Bill before the Committee was not a final document. The Committee would first need to decide if those amendments were acceptable. There were two specific amendments, that of the change to clause (7), being the change of date from 1913 to 1800 as well as the exclusion of ‘communal land.’ Those two amendments would have to be submitted to the public again as well as the National House of Traditional Leaders by the Joint Tagging Mechanism (JTM). Comments would also be needed from the Provincial Legislatures because those two amendments were material amendments.

The other proposals to the Bill were inputs from the public and were around issues of clarification to ensure it read better. Those amendments would not need to go back to the public for comment. It was only the issue of ‘1913’ and ‘communal land.’ The third draft Bill would first need to be adopted by the Committee before such a process could start.

The Chairperson suggested that the two week extension granted by the National Assembly Programming Committee would likely not be sufficient, given the process outlined by Adv Charmaine van der Merwe.

Adv van der Merwe stated that the Order Paper circulated that morning had a request for an extension to 5 November 2021. She did not think that even that extension took into account that there might be more amendments. No decision had been taken about further amendments – that was a proposal that was still before the Committee to be considered. The National Assembly Programming Committee discussed this matter, in the meeting it was suggested that the AdHoc Committee was almost done with its work. That was the basis for the decision of the two week extension.

If the Committee took a decision that further amendments were necessary, this was something that would need to be indicated to the House. The process and the reason i.e that material amendments needed to be made and accordingly a new date needed to be considered. The National Assembly would then consider it at that stage. She did not know if the Programming Committee could consider an extension on the basis of the ‘possibility’ of amendments at this stage. There needed to be a firm decision from the Committee and then the Programming Committee would consider a further period of extension.

Ms K Mahlatsi (ANC) stated that as much as the Members may have received the documents prior to the meeting – the Members were interfacing with the discussion for the first time. The Committee needed to discuss and reach agreement about what needed to happen, the proactiveness of the Legal Services, in as far as developing the third draft Bill. Her expectation of the meeting had been that the Committee would receive a report from Legal Services providing Members with the responses of the public participation process. Thereafter the critical issues could have been unpacked. Subsequent to that it could have led to the third draft Bill. She suggested that the Committee note the third draft Bill and go back and seek mandates on issues such as clause (7) from their political parties.

If the Programming Committee had taken into consideration the work that the Committee had done and concluded that they were left with two weeks; that meant that the Committee would not necessarily need to request an extension beyond what was currently granted.

The Chairperson stated that it was not the Parliamentary Legal staff that decided to come up with the third draft. MANCO, after listening to their report of the submissions suggested that the Parliamentary Legal Services should produce a draft Bill informed by the report, which was subject to consideration by the Committee for acceptance or rejection. He agreed with Ms Mahlatsi that the Committee should not entertain the substance of the Bill in the meeting. That was why when he opened, he had said that the purpose of tabling the draft Bill was to aid the consultative processes between Members and their party principals.

He suggested that the Committee should not meet the following day; instead all political parties should be given till Monday to consult their principals. The Committee could take a decision thereafter. On Tuesday a meeting could take place where parties could make inputs based on their mandates and be able to take decisions on the draft Bill that was before the Committee. If the Committee did not attend to these matters, the Members would be ‘committing suicide,’ as it would be as if what the people were saying did not matter. The Committee would then be violating the Constitution in which public participation was mandatory. The Rules of Parliament needed to be protected as there needed to be order.

Mr Gumede suggested that because of the time limitations, the Committee needed a very clear programme. He suggested a programme be compiled for presentation to the Committee at the meeting on the following Tuesday. The Chair, Whip and Legal Services should develop that programme. He asked that the Committee meet the following day and be given a full presentation on the report back on the public submissions. This would assist Members in consulting with their principals on the matters. 

The Chairperson agreed with Mr Gumede’s suggestion. The Committee would proceed with the meeting the following day and formally receive the report from Legal Services on how the revised Bill was informed by the report. That would ‘close an important gap.’ He agreed on the proposal made to develop a programme and suggested that the Management Committee meet on Tuesday morning to prepare the programme for the meeting on Tuesday afternoon. The report would be tabled the following day and the draft revised Bill could be noted in the meeting the following day.

The meeting was adjourned. 

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