Draft Constitution Eighteenth Amendment Bill: deliberations

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Meeting Summary

Section 25 Review Process

The Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution met for further deliberations. It agreed that it would likely be able to adopt the draft Constitution 18th Amendment Bill by Friday, 3 September 2021. The Committee was given an extension until 10 September 2021 to complete its work.

The Chairperson said the Committee resolved to deliberate on the second draft of the Bill and not the third version, which was presented the previous week. The Chairperson said that as the second version of the Bill had already gone out for public engagement and the public had an opportunity to make inputs, no further advertising was necessary. Most Members agreed not to work on the third draft of the Bill that included some substantial proposed amendments, which would have required further public participation.

The purpose of the Bill was to amend section 25 of the Constitution to provide that where land was expropriated for land reform, the amount of compensation payable may be nil. Furthermore, aims included seeking to clarify that nil compensation was a legitimate option for land reform, to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes.

The Committee heard that 148 891 written submissions were received during that round of public engagements. A substantial number either did not relate to the Bill or were duplicate submissions submitted to the Constitutional Review Committee in 2018 or not relevant to the process at hand.

According to the second draft of the Bill, the contentious submissions contained in the third version calling for the cut-off date for land restitution claims to be changed from 1913 to 1800, were not included. Deliberations in the meeting included removal of the clause “and any improvements thereon” with reference to improvements made on land to be expropriated. Most of the Members also agreed that communal land was not under threat of expropriation, as it was generally classified as “state land”.

The Chairperson said the Committee had instructed Parliament Legal Services to “clean” up the Bill after the day’s deliberations. He said that by that Friday, the Committee would have a cleaned-up copy. The Committee would then adopt the Bill clause by clause. Further once adopted the Committee would give the support staff an opportunity to prepare a report on the Bill for consideration and adoption.

No substantive changes would be made to the second draft Constitution 18th Amendment Bill released in June 2021 for comment, the preamble of which would nevertheless be “polished” before being considered clause-by-clause and adopted the following day (Thursday 2 September 2021). This would albeit be by majority vote unless a change of view was expressed by one or more opposition parties.

Meeting report

Opening Remarks
The Committee Secretary had not received any apologies. He noted that there were representatives from several parties, but not the Economic Freedom Fighters (EFF).

The Chairperson welcomed the Members and members of the media. The sitting of the Committee was taking place when it was left with only nine days to complete its work and report to Parliament. This meant that it was not going to be business as usual, where the Committee “talk[ed] about everything under the sun”. It would focus on the critical issues before it. The Committee had been given an extension of three months to advertise the second revised Bill and to call for further written submissions. The deadline of these submissions was 13 August 2021. More than 140 000 submissions were made; the administration had to work through the submissions and prepare a consolidated report. Since it took long to complete the report, the Committee could not convene a meeting immediately after 13 August 2021. When the report was ready, the Committee convened the Management Committee (Manco) to receive the report, which had raised new substantive issues. Manco had therefore decided to instruct the Parliamentary Legal Services to produce a revised Bill that had been informed by these new substantive issues. Given the limited timespan of the Committee, it was envisaged that the report on submissions and the proposed revised third Bill would help Members in their consultations with their political principles. Both the report and the revised Bill were presented to this Committee for consideration. The report was unanimously accepted as a fair summary of the substantive issues raised by the submissions. The revised third draft Bill was just noted and not adopted. It had therefore not prejudiced any party; it only served as a tool for consultation. What is critical at the meeting was the consideration of the second revised Bill reflecting the report, specifically the report on the returned submissions, to determine whether or not the report had impacted the second revised Bill. Hence, the Committee convened the meeting to consider the second revised Bill considering the report on the written submissions. Because the third revised Bill was not adopted, it was therefore not before the Committee that day for consideration. On the Friday, the Committee would conclude the deliberations on the revised second Bill and instruct the administration and Parliamentary Legal Services to draw up a report, which would be submitted to Parliament on 10 September 2021.

In the meeting, the Committee had no time to discuss processes; it would focus on the impact, if any, of the report on the written submissions to enable it to conclude the business of the Committee on time. The Committee would be opening the floor for political parties to tell it whether the report on the submissions had impacted the second revised Bill. If it had, what changes, if any, would parties be proposing? On Friday, the Committee would conclude the deliberations on the second revised Bill, and then instruct the administration to prepare a report for Parliament.

Draft Constitution Eighteenth Amendment Bill: Discussion
Prof A Lotriet (DA) said that in terms of the submissions, the report, and the revised Bill, it was clear that the overwhelming sense and expression in the submissions was that the matters as contained in the revised Bill were “very problematic”. Moreover, they would have serious economic consequences. Matters such as custodianship were not clear. It was problematic and could have unintended consequences. Therefore, the DA’s position was that, while going through the submissions and report, the sense one would get was that the whole Bill should be scrapped, and that a report be submitted to the National Assembly stating that it was not necessary to amend section 25 and therefore there was no need for such a Bill.

Mr V Xaba (ANC) said there was “nothing new” that Prof Lotriet was saying. It was consistent with the DA’s position right from the beginning that there was no need for Section 25 to be amended. Prof Lotriet was coming up with points that were not completely new. The ANC’s view was that section 25 needed to be amended to make explicit that which was implicit in section 25. The ANC’s view was consistent with the view of the National Assembly to pass the resolution. He had joined the Committee to do exactly that – amend section 25 to make explicit that which was implicit in legislation.

Following that resolution, the Bill was introduced, and taken to the public. The public submitted written and oral and submissions. Parliament considered those submissions and then produced the revised Bill. That revised Bill considered the views of the public. The Chairperson had reminded the Committee that South Africa’s democracy was both participatory and representative. Consistent with the character of South Africa’s democracy, Parliament took those submissions to heart and considered all submissions, and then produced the revised Bill. Parliament was told by the legal structure that the proposed amendments were material and substantive, and that Parliament needed to send the Bill back to the public, advertise it again, which it duly did. The Bill was advertised, and arising from that exercise, Parliament had new proposed amendments. Thus, the Chairperson was asking the Committee to comment on the amendments arising from the public participation process. The question was whether the amendments were in any way worthy of being considered considering what the Committee had done with asking the public to make inputs into the process. Parliament needed to show it valued public participation, and that when it had invited people’s input into the process, it did not do so to “tick a box”, but instead did it so that the public could enrich the final product, consistent with the character of South Africa’s democracy. The ANC would then be ready to enter the discussion on the proposed amendments.

The Chairperson thanked Mr Xaba for taking the Committee down the memory lane so that the Committee would know how it arrived at that point, and what the challenges facing it were.

Mr W Thring (ACDP) thought that, like many of the opposition parties, the ACDP had also from the outset, expressed its opposition to amending section 25 of the Constitution. The Members understood that they had come to the place where there was a draft Bill, and to give effect to that particular amendment. The ACDP’s position had not changed, and therefore would not be supporting the draft recommendations with regards to the amendment of section 25 and the Bill itself.

Dr C Mulder (FF+) said that he agreed with Mr Xaba’s interpretation of the process. He could not hear the Chairperson at the beginning; he had a problem with the Wi-Fi signal.

The Committee was back on the correct process in terms of where it was. It had the second draft, and it had published that for commentary. The Committee had received a lot of input from the public. The Committee needed to look at that commentary in terms of how it may influence the second draft. He thought that procedurally, the Committee was on the right process. It was also true that the second draft was the product of a long process, in terms of which after public participation and after internal consultation, and an attempt with bilateral discussion to reach consensus, in the end the second draft was adopted by the Committee with the majority vote. That was a product of the process up to that point. The Committee was at the end of the process. It was only a question of whether “the current public participation [had] any real serious impact in terms of the second draft?” This was while understanding, on the other hand, that if the Committee moved away from the premise of that second draft, as the legal services correctly pointed out, then the Committee would have to publicise and publish the Bill again and get more public participation. He did not think that was the idea at that time.

He agreed with what Prof Lotriet had pointed out about the commentary on the second draft. Most of that public participation that he went through was quite critical of the second draft and was not in support of it. A lot of questions were asked that related to uncertainty on custodianship and on certain provisions in the second draft. If the idea was to clarify some of those things, that could be on the table. He believed that the Committee was at the end of the process. He thought that all Members knew where the different political parties seemed to stand in terms of their views. He also thought that the Committee could conclude the process in the next day or two.

The Chairperson thought that the DA and ACDP were rejecting the second draft outright. But he thought that Dr Mulder helped the Committee, because he confirmed the procedural correctness of what the Committee was doing. The Committee had said that the proposed third draft was not adopted by the Committee and was therefore not on the agenda. What was on the agenda was the revised second draft. The Committee was concerned with the revised second draft; to see whether it had been impacted by the submissions. The Committee also did not want “generalities”, where people will say that there are many issues that have been raised, and so on. The Committee wanted people to make a concrete proposal and say, considering the impact, if any, what they were proposing. The Committee needed to drive the process to an end so that on Friday it had reached finality and was able to instruct the administration to produce the final report to Parliament. He wanted to request Mr Xaba to take the Committee through and say, in Mr Xaba’s reading of the report, whether there was any impact that the report was making on the position of his organisation, so that the Committee drove the process to the end and focused on the second draft Bill.

Mr Xaba said that he was going to propose a different process, namely that the Committee asked the legal section to present clause by clause, or areas where there were proposed amendments, and then invite each party to comment. He was saying that because previously, Members did not have the opportunity to ask questions of clarity before expressing an opinion on the matter. He suggested that in case there were questions, Members could ask them before the Committee moved forward.

The Chairperson thought that it was a fair and correct approach. As he had said, the other parties had come with a general rejection of the Bill, but parties needed to be specific, because the Committee was not “talking to itself”; it was speaking to South Africans. South Africans needed to know how the Committee arrived at certain positions. He reiterated what Mr Xaba was saying: Advocate van der Merwe would be taking the Committee through the second revised Bill, clause by clause, and would indicate if the report that had been adopted the previous week was impacting any of the clauses. If so, how, and what were the implications? This would then leave the politicians to deal with those matters.

Draft Constitution Eighteenth Amendment Bill: Discussion on Clauses, Preamble, and Memorandum on the Objects of the Constitution Eighteenth Amendment Bill
Adv Charmaine van der Merwe, Senior Legal Adviser, Parliament’s Constitutional and Legal Services Office (also referred to as PLS), Parliament of South Africa, presented the second revised Bill. She would start with the clauses, then return to the preamble and the long title. She thought that the clauses would inform a lot of those proposed amendments.

Clause 1
The first few proposals related to the first clause, paragraph (a). The first one that could be discussed by the Committee was the removal of “improvements”, in other words, that for expropriation where compensation may be nil did not, in fact, expressly include “improvements”. It did not mean that the possibility was excluded, but it would not expressly include it. The second proposal of the specific paragraph was the exclusion of communal land held by or for the benefit of a traditional community. This was a substantive amendment and would have to be advertised. The amendment to remove “improvements” will not have to be advertised. The last proposal in the paragraph was to include “in accordance with subsection (3A)”, but this could only be done once the Committee had dealt with (3A). Adv van der Merwe’s proposal was on that specific paragraph, to discuss the two issues only, namely removing “improvements” and excluding communal land from where compensation was nil.

The Chairperson though that the Committee should do as proposed and discuss clause by clause. He asked to stop at that point and get the parties to comment on the two issues raised. The Committee would then move to the next clause.

Mr Xaba said that was in order. He noted that the proposed removal of the words “and improvements thereon” was on the basis that, as was submitted previously by Adv van der Merwe, the doctrine of South African law made a presumption that land included any improvement on it, i.e., fixed improvements on it. It then said that even if the Committee removed “improvements thereon”, it did not affect the substance as it was. The Committee was making explicit that which was implicit with those words. It placed the section beyond any doubt as to what was being spoken about. So therefore, he still stood by the inclusion of “improvements”, because it did not change anything. The Committee’s task was to make it explicit, he would prefer that the Committee retained those words “and any improvements thereon” because it placed the section beyond any doubt as to what the Committee was talking about. Notwithstanding what Advocate van der Merwe said, that even if the Committee did not mention those words, it was implicit, given the doctrine of South African law. He stood by the view of including those words because it did not change anything. It was good when it was there because the Committee’s task was to make it explicit. In his view, this was explicit enough on what the intention of the Committee was in relation to the matter.

The next issue was on the communal land, namely the inclusion of the words “other than communal land held by, or for the benefit of, a traditional community”. He had seen commentary on the issue, even in the media, stating that Parliament was now proposing excluding communal land from expropriation. With the intention of section 25, there was nowhere it could be interpreted to mean that communal land was capable of being expropriated. There was nothing in section 25 that made communal land capable of expropriation by Government. Communal land was state land. That was confirmed by the literature. Most of it (communal land) was part of the South African Development Trust back then and was held by the state on behalf of communities. After the abolition of the South African Development Trust, that land reverted to the state, and was administered by the traditional leaders on the ground. The recent judgement of the Supreme Court of Appeal on the Ingonyama Trust confirmed the view that he was expressing, namely that the Minister remained the authority responsible for the administration of the land, safe to say that that responsibility was delegated to the traditional leaders. He was trying to steer away from the debate on whether the state needed to give title to traditional leaders or not. He knew that the traditional leaders were saying that they wanted ant full title to “all the land under our own jurisdiction”. He was not getting into that matter but was stating the legal position as it was at that moment. That was one part, that this section was never intended to look at that.

On the second point: the objectives behind it were land reform; namely land reform to expand access. What purpose was served by taking land away from the traditional leaders if the purpose of land reform was to expand access? One took land, and redistributed it, so that one made it possible that people would have equitable access to land. He did not think that communal land featured in the debate. He would propose that the Committee left it out, because such land represented “less than 10% of the land”. Save the land that had been returned to people via restitution, which increased the land from 10%, to “whatever percentage”. In that case, “we want land for people who do not have land”; “We want land to address land hunger. People who are hungry for land are in those areas of the traditional communities, and in the townships as well”. His suggestion took the Committee back to the earlier provision that was published in the second draft, to say that “let us retain it as is”.

He had addressed the phrase “and improvements thereon” and had addressed the issue of communal land. He would come back to the issue of “in accordance with subsection (3A)” because Advocate van der Merwe had advised the Committee to deal with that part when it dealt with subsection (3A), because those parts spoke to one another.

The Chairperson was particularly happy about Mr Xaba’s exposition of the position of communal land, and how the Committee’s process of amendment did not have anything to do with that. That issue may have arisen because people did not know the legal position as Mr Xaba had outlined it. He thought that it was very helpful. He would then leave it to the other parties to comment.

Prof Lotriet commented that the deletion of “and any improvements thereon” was in line with what the DA would support. The DA was never in support of including that. However, one needed to read that with subsection (3A), and therefore the DA could not support it.

The second part -on communal land- was not supported by the DA. In the submissions from the public, there had only been one submission that referred to that issue, so it was not quite clear why that proposal in the submission had made it into the revised Bill. In essence, then, the DA did not support that clause.

The Chairperson said that he did not understand what it was that that the DA did not support. Mr Xaba, in his view, had correctly said that the desired amendment had nothing to do with communal land, because that was already state land. If one said that the state needed expropriate what was already in its hands, it would be irrational?

Prof Lotriet said that she was speaking on behalf of the DA on the clause put to the Members. She was not referring to Mr Xaba. His word was not final. She was giving the DA’s view on the clause, and the DA did not support it.

The Chairperson thanked Prof Lotriet for her clarification. The Committee would deal with her other comments when it came to subsection (3A).

Dr Mulder thought that it was not that simple just to say that the whole process and section 25 excluded the whole notion of communal land and the whole position of traditional leaders. Quite obviously, the question would then be, “Why do we have to consult with traditional leaders, if all property that they are in charge of belongs to the state in any case (if that is the correct interpretation)?” He thought that many of the leaders might differ from that interpretation, but that was a different debate altogether. He understood that Mr Xaba’s position was that communal land should be excluded, because he argued that it was already part of section 25. Dr Mulder had a different view, but that was “not important”. He referred to the question and the doctrine in terms of “improvements thereon” in relation to land. It may be so that improvements under certain circumstances were seen to be part of the land. But in the current situation where the Committee was talking about expropriation without compensation, that was going to “make it worse” for people whose property was being expropriated. One could have had the argument to say, “you are going to lose your land, but at least you will be compensated for the improvements you have made”. If it was done that way, then the message was clear: one was not only going to lose one’s land, but with all those improvements that one had made, one would get no value for that as well. Practically, it would make matters worse. The FF+ would not support the clause.

Mr Xaba commented on the remarks made by Dr Mulder on the improvements to the property versus land itself. The clause spoke to how land and any improvements thereon could only be expropriated after the evaluation process mentioned in section 25(3)(a) to (e). The determination of the price which could be nil considered that evaluation process, including the current price of the property (i.e., land plus improvement), and all other factors that were mentioned in section 25. He thought that was already taken care of. “Let us take it for argument’s sake that all factors considered point to land being nil; that not even a single cent should be paid on that land, but for the improvements made on the land”. There may be some argument for compensation to be paid in that case. In other words, land was nil but for some improvements made on the land; then an argument may be presented for some compensation to be paid. He suggested that Dr Mulder not look at that in isolation from the whole of sections 25(2) and 25(3), which did not say that land and improvements was nil; it stated the compensation may be nil, “but for the improvements”, and then there would be some compensation paid.

The Chairperson said that he wanted to give Dr Mulder an opportunity to respond, because it could be a question of the reading of that section. As Mr Xaba explained, it did not seem to the Chairperson as well that compensation for improvements was totally excluded.

Dr Mulder said that he took note of the interpretation. It may be that there may be other interpretations. He took note of what was said.

The Chairperson said that the voices that were rejecting the matter from the ACDP and DA were “not new voices”. Those “old voices” had been there even at the time when the clause was accepted. He did not think that those parties’ objections that day (Wednesday 1 September) made any difference. It appeared to him that the text stood as it was.

Adv van der Merwe said that she would skip paragraph (b), since there were no amendments that affected that paragraph.

Clause 1, paragraph (c)
Paragraph (c) was dealing with subsection (3A) and would also inform paragraph (a). She started by looking at paragraph (c) and the new subsection (3A). The Bill as advertised indicated that the national legislation needed to set out the circumstances where the amount of compensation was nil. The public commented that this should be “may be nil”. As Adv van der Merwe explained last week, the public was concerned that the role of the courts would still be ousted. She had indicated that this could not be the case; the courts would always play a role. The only challenge, perhaps, was what these circumstances would be that could be in national legislation where there was no discretion required, where the facts would always be such that compensation would be nil. The wording “may be nil” was the proposal from the public. If the Committee decided in the end that it should read “may be nil”, then the question came back to paragraph (a), namely if the Committee should include “in accordance with subsection (3A)”. In other words, if there should be a cross-reference. That cross-reference was not possible if the Committee retained the word “is”, because it was then two different scenarios. Paragraph (a), which was subsection (2)(b), then dealt with the discretional nil compensation, whereas (3A) will dealt with specific instances where the circumstances were so clear that compensation would always be nil.

The Chairperson wanted clarification. When the Constitution provided for an enabling legislation, one could not (in his view), at the time, deal with the content of that enabling legislation. The Committee’s task was not to draft an enabling legislation. That was another process which would follow the amendment of section 25. He asked why the Committee should get into the circumstances of the enabling legislation.

Adv van der Merwe replied that while she agreed with the Chairperson that the Committee was not going to look at the actual wording of the national legislation in the discussion, it was for the Committee to decide what it wanted that national legislation to do. If the Committee wanted national legislation to set out circumstances that would almost act in addition to those in subsection 3, then a court would say that the following circumstances were in fact present, and therefore it should perhaps look more towards nil compensation than it would have otherwise done. Or did the Committee want a situation in national legislation where national legislation would say “the following circumstances will always result in nil compensation”. If it was the latter – “always resulting in nil compensation” – in other words, there was no discretion required, it was always clear that there was going to be nil compensation, then the wording of subsection (3A) would be “is”. If the Committee said no, it would like the first option where there were specific circumstances that a court needed to look at, and that would steer the court towards nil compensation more so than before, then the wording should be “may be”. She agreed that the Committee was not looking at the national legislation, but the intention of the Committee with the national legislation needed to be identified.

The Chairperson said that Adv van der Merwe had made the case “absolutely clear”, so he could then call on Members to comment.

Mr Xaba wanted to agree with Advocate van der Merwe that the clause as it stood in the revised Bill was not in any way ousting the role of the court. The issue would be on what the circumstances were. I.e., the whole focus tended towards the details of the legislation that was proposed in the Bill, but the enabling clause as it was did not offend the authority of the court and did not exclude the competence of the court in any way. He also agreed that if the Committee retained “is” and did not change it to “may” then there was no need for going back and including “in accordance with subsection (3A)”. In that way, having accepted Advocate van der Merwe’s explanation, he would suggest that the Committee retain “is”, and exclude the term “in accordance with subsection (3A)”, because the Committee was not changing subsection (3A) to “may be”; it was retaining “is”. If there was anyone who wished to challenge that, the challenge would only arise when the details had been fleshed out in the legislation for the court to make a final determination on it. In that way, it was out of misreading the intention of the clause that some people wanted to revert to “may be” instead of “is”. He therefore wanted the Committee to go back to what was in the revised version, retain everything that was there in relation to the words “in accordance with” as they were in subsection (2)(b), and the “is” in subsection (3A), so that the two were read in harmony with each other. He was not proposing that the Committee accept the proposed amendment. He accepted that members of the public who made these comments did not read and understand exactly what the Committee meant. Such people thought that “is” ousted the role of the court, therefore it needed to be “may be”. Now that it had been explained that it did not exclude the competence of the court, he suggested that the Committee retained “is” as it was in the revised Bill.

The Chairperson thanked Adv van der Merwe and Mr Xaba for clarifying the situation. The Committee needed to bear in mind that members of the public were not all lawyers; they did not deal with such matters daily like the Committee Members. It was important that the Committee respected the public’s contribution, but where the Committee thought the contribution was based on a lack of understanding due to not being experts in the law, Members should bear with them, but clarify and explain as Adv van der Merwe and Mr Xaba had just done. He thought that the Committee was then on the same page with everybody.

Prof Lotriet said that in essence, the DA did not support the inclusion of subsection (3A) and was therefore not commenting on “is” or “may”. In total, the DA did not support that clause.

The Chairperson said that that was the DA’s “old position”, so the Committee could agree that the position of the Bill as explained by Advocate van der Merwe and Mr Xaba stood as it was.

Subsection (4A)
Adv van der Merwe said that the next proposal for inclusion was on the new subsection (4A). It had read: “The land is the common heritage of all citizens that the state must safeguard for future generations”. One proposal was that land owned by the state was the common heritage. Another option was for land to be defined. Another proposal was that this not just be limited to land, but to land and all natural resources. The very last point was whether the subsection should be in section 25 at all, or rather be in section 24. As the Committee was not dealing with section 24 in the Bill, she did not include those kinds of proposals, but it was something for the Committee to consider. Whether the subsection was in the correct section was one thing to discuss, the second was whether land be defined or limited to state-owned land, and the third was should the Committee include the words “and all natural resources”.

Prof Lotriet said that the DA’s position on that clause was that it did not support it. It was outside of the original mandate of the Committee, and that it would be better suited elsewhere.

Mr Xaba said that he understood where the confusion was, and that had caused Adv van der Merwe to think that the subsection should belong to section 24 of the Constitution. But because the Committee was not dealing with section 24, then she proposed another “way out”, maybe another way of defining the word “land”; that was Adv van der Merwe’s reading of the public submissions. The problem that the Chairperson stated was that people were not lawyers; sometimes when people read a section they did not go back to the principal Act, in this case the Constitution, to see what the other clauses said on the matter, so that any amendment proposed did not stand in conflict with other clauses that were in the principal Act.  If one looked at section 24 and read it as a whole, it spoke to natural resources: “Everyone has the right to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development” (in other words, 24(b)(iii)). Anyone who read that would immediately conclude that did not belong there. If there was any need to make an amendment, that amendment may be best suited under section 24 of the Constitution. In that context, the ANC would not support including the words “and all natural resources are”, because having those words in the proposed subsection (4A) would make the reading of section 24 difficult to reconcile with the proposed amendments under discussion. The Committee needed to not create conflict between two sections of the same Act, in that case, the Constitution. The Committee needed to avoid that as far as possible. In that way, the ANC would not support the inclusion of the words “and all natural resources are”.

The Chairperson said that the Members should agree that the question of natural resources had been dealt with elsewhere. Additionally, there was enabling legislation dealing with that matter. If the Committee included that there, it created conflict between two sections of the Constitution, and what would be the purpose of the inclusion of natural resources which were adequately dealt with elsewhere? He thought that the Committee should agree with the position advanced by Mr Xaba and leave the matter as he proposed.

Paragraph (e)
Adv van der Merwe said the paragraph dealt with state custodianship. The comments from the public were that “state custodianship” and “certain land” were not clear enough. The two terms were not clear enough. One of the proposals was that the Committee could add a definition. Another concern raised was that by the inclusion of the words “state custodianship”, i.e., “to foster conditions which enable state custodianship of certain land for citizens to gain access to land on an equitable basis”, that was binding the hands of the state, in that no other measures would be possible. Thus, in all the legislative measures that would be taken that dealt with citizens gaining access to land on an equitable basis, state custodianship would have to be part of that process. That was correct; Adv van der Merwe agreed with that interpretation. The question was whether that was the intention? If that was what the Committee wanted, then the wording was correct to include state custodianship there. The other proposal that was made was to change the word “equitable” to “fair and appropriate”, and to change “state” to “government”. She did not see the rationale for that reading, and she thought that it was just “playing around with words”. “Equitable” had a lot of already-established case law that spoke to what was equitable and was not necessarily always the same as “fair and appropriate”. In fact, “equitable” might be very different from “fair and appropriate”. The first issue was whether the terms “state custodianship” and “certain land” were clear enough. The second was whether it should be included at all, in the sense that it limited what the state could do to always include state custodianship. The legal section indicated that it was a transitional measure, i.e., “state custodianship of certain land as a transitional measure”. That was to try and assist somewhat with the question of if it not being clear enough. Those were the kinds of discussions from previously, that the kind of “state custodianship” was not something where the state would in perpetuity own the land but would instead be transitional.

The Chairperson asked if Adv van der Merwe could explain the difference between state custodianship and state ownership.

Adv van der Merwe replied that “custodianship” did not include ownership at all; it was a very different term. Custodianship meant to hold in trust for someone, and there was no ownership involved at all. The question in respect of whether it was clear or not was: If it (land) was transitioned and there was a title deed given, then one spoke of ownership. What would happen with custodianship was that the state would be holding the land on behalf of the people of South Africa, and it would then be able to, depending on what the national legislation indicated, transfer ownership of that land, or use of that land, or other utility type functions [unclear 1:10:41] of that land to citizens. What was in subsection 5 was in respect of citizens to gain access to land. State ownership would mean that the state could do with that land what it wished, because it was the owner, but with custodianship, there was a certain trust in respect of the citizens. The state would then have to hold that land in trust for the citizens, and only act on that land for the benefit of citizens.

The Chairperson asked if Adv van der Merwe could explain the meaning of nationalisation in relation to state custodianship and state ownership. Where did nationalisation fit in?

Adv van der Merwe replied that those were very intricate concepts. Nationalisation would indicate a final control from the state’s side. In other words, there would not be any private ownership at all. But it depended on what the wording was because the concept could not simply be explained in itself. If one spoke about state custodianship of land, state ownership of land, and nationalisation of land, then state custodianship would mean that the state would be acquiring land in one of many ways; it could be through expropriation, it could be through purchase, but the state would be holding that land in trust for the citizens. State ownership of land was more where one looked at, especially at a local level, where municipalities owned certain land to put up a municipal electricity box, for example, where there was ownership and the municipality could decide what it wanted to do with the land (whether it wanted to sell it, etc.). Nationalisation was where the ability to have private ownership was removed. State custodianship did not exclude that (private ownership), but nationalisation would.

The Chairperson asked Members to bear with him; he focused on those concepts because the Committee was dealing with the masses of country, and some of them had not gone to school. He wanted to make sure that as the Committee debated, it was taking everybody along, so that it did not make laws which were above the heads of the people.  

Prof Lotriet said that the DA was against the issue of state custodianship being included in section 25, specifically in subsection 5. The reason for that was that it created a situation with unintended consequences. The DA had said previously that it did not know what the economic impact of such measures would be. It also created more uncertainty, because as it was formulated, it was “state custodianship of certain land”. That made it very uncertain. She thought that adding “transitional” created more uncertainty because what was transitional? From “when to when”, and how long? The DA was opposed from the start to including state custodianship, because it believed in ownership, it would not support that clause, not on custodianship, and neither on custodianship as a transitional measure.  

Mr Xaba said that he understood what [unclear 1:15:45] was; it was an ideological matter. Unfortunately, the ANC did not subscribe to the DA’s ideology. Prof Lotriet had said “plainly that [the DA] believes in ownership”. By that she meant a freehold right. He hoped that he was not interpreting Prof Lotriet incorrectly. That was not what section 25(5) proposed. The operative word of section 25 was “access”; to allow for citizens to gain access. Access to land did not mean only one form of ownership, i.e., a freehold right. It meant granting access to land on an equitable basis. When one read the term “access”, one needed to read it in the context of South Africa’s own Constitution. Access was used in three or four sections. He wanted to highlight a few sections where “access” was used in a different way from giving a right. Section 26 of the Constitution dealt with housing. Section 26(1) said that everyone had the right to have access to adequate housing. It did not give people the right to adequate housing. It said, “the right to have access”. There was a reason why the drafters of the Constitution put the clauses in the way that they had done. The drafters also included a condition on section 26(2) under housing. It said that “The state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right”. That was why section 26 was talking about granting access, because it was where it was not possible to let everyone have a right [unclear 1:19:10]. Section 27(1) dealt with healthcare, food, water, and social security, which said that everyone had the right to have access. If one looked at section 29 which dealt with education, it said that everyone had the right to a basic education, including adult basic education. Regarding land, access was mentioned because not everyone wanted to own a freehold title to land. It depended on what one wanted to use the land for and for how long. Other people just needed access to land. If one started to include those conditional terms as a conditional measure, it directly took one to what Prof Lotriet was saying about freehold rights “across the board”. It was not going to be possible; it was not everyone who wanted a freehold right to land. He gave an example: If he wanted to turn to farming, and he was above 50, he would only need access to land for farming and making a profit on condition that the state gave him a reasonable leasehold period that would make him go to the bank and secure a loan against the land. I.e., the purpose for which he wanted the land was farming for as long as he lived (which would be about 20 years), so he did not need to own the land. He would not want to own the land via a freehold right if he could be given access that would last as long as he would still be able to farm. A 20-year lease may be sufficient. It was access being talked about, which was opposed to a freehold right. It depended on what determined the need for land; it was what a person wanted to use the land for, and for how long. That was why the issue of “as a transitional measure” stated exactly what Prof Lotriet was saying that the DA did not want the state to hold land that it would make available for people to have access to it, without giving it away to people outright. Through section 25, the state was not limited to one possible means of making land available to people. It opened several avenues, such as giving land away on a freehold right, giving land on a leasehold basis, or any other means that would make it possible for people to have access to land on an equitable basis. Any suggestion to include “as a transitional measure” was limiting the ambit of section 25(5). On that basis, the ANC would not support the addition of the words “as a transitional measure”. Its [the DA’s?] ideology was “for those who look at only one form of ownership”, that was freehold ownership.

The Chairperson said that it may be that the words “transitional measure” was used for wanting of a better term. If Mr Xaba did not agree with that term, could he suggest another term, because maybe those who use that term did not know which other term to use. Theoretically, Mr Xaba had explained the situation very well, but the Committee needed the language that could capture that explanation.

Mr Xaba said that “custodianship is transitional in nature”. As Adv van der Merwe had explained, custodianship did not mean the state owning the land in perpetuity. It meant the state holding the land on behalf of the people so that they could access the land. The ANC’s opposition to the words “as a transitional measure” was that it limited the state to granting only one form of ownership, which was freehold ownership. If that phrase was removed, then the ANC would be satisfied. He noted that the Committee was going to draft legislation. He urged that it did not burden the clause with details that would be in legislation. Legislation would then determine how long the state should hold the land on behalf of the people. The Committee was drafting an enabling legislation. In dealing with it, let the Committee not restrict the measures that may be available to the state to enable people to gain access to land be on an equitable basis. Let all details, such as whether it was a transitional measure, for how long, etc. be in legislation. Even if the Committee did not include [unclear 1:26:55], legislation may find it if the Minister or Parliament, when they drafted legislation, believed that the period needed to be limited, then do that in legislation.

The Chairperson thought that even with those who looked at the matter from an ideological standpoint, the situation that existed and what had been coming through was that there should be multiple forms of ownership. If the phrase “transitional measure” limited the scope of the state, then it would not be in line with what Members had been saying, namely that they wanted to allow more than one form of ownership. He thought that the Committee needed to get the drafters to remove “transitional measure” and find a better way of expressing it.

Prof Lotriet responded to Mr Xaba’s comments on what she said. If one read section 25(5) as was in the Constitution, and which was the version that the DA supported, it stated that “the state must take reasonable legislative and other measures within its available resources to foster conditions which enable citizens to gain access to land on an equitable basis”. She emphasised “conditions which enable citizens to gain access to land”. Access would not be in only one way; if one read the revised Bill, it read “to foster conditions which enable state custodianship”. It was limiting. The DA would prefer to be wider, as was in the Constitution at that moment. It was to create more opportunities for equitable land access than purely focusing on custodianship.

The Chairperson said that the DA was confirming their previous position, which did not change the advertised Bill.

Subsection (7)
Adv van der Merwe said that the last proposal was a new inclusion, which would constitute a material amendment. The PLS would advise that the House be requested for extension of the scope of the Bill, and it would have to be advertised. The amendment was in subsection (7): to remove the date 19 June 1913.

The Chairperson said that that subsection was not in the second revised Bill, and therefore it was not before the Committee at that moment because it was contained in the proposed third amendment Bill, which was not approved by the Committee. The Committee could not entertain it at that point.

Long title
Adv van der Merwe did not want to take Members through the long title, because all the issues that it had just discussed were repeated. There was one proposal that was new, namely, to change the word “provide” to “stipulate the circumstances”; it was a cosmetic proposal.

Mr Xaba said that he wanted to agree with Advocate van der Merwe but asked the Chairperson to explain why the Committee preferred to substitute “stipulate” for “provide”.

Adv van der Merwe replied that it was a semantics issue. To say that “national legislation must provide the circumstances” meant something different to the people who proposed “national legislation must stipulate the circumstances”.

Mr Xaba asked if the Committee would spend time on that matter or leave the words “provide the circumstances”. The word “provide” was a legal term that was used generally, and in most legislation. If one read the preamble, how many times did one come across the word “provide”? One came across the word many times in the preamble, let alone the whole of section 25. If having the word “provide” did not have any meaning other than that which was before the Committee, he would prefer that the Committee left it in.

The Chairperson noted that in law, the common term was “make provision for”, or “provide”. One spoke about provisions of the law. “Stipulate” may say the same thing, but it is not a legal term. Perhaps the Committee should not introduce some other terms which may lead to some problems. “Provide” was a common term, why not keep to that, and not use “stipulate”?

Adv van der Merwe replied that she needed to point that out, because a proposal was made on that matter. It was something that the Committee could put in the Bill to show that the public was heard.

She would not go through the changes to the preamble that spoke to the changes that the Committee had already discussed. The necessary changes can be made automatically. The first proposal was to remove the words “the dispossessed are of the view that” (it read “the dispossessed are of the view that very little is being done to redress the skewed land ownership pattern”). The argument was that it was not only the dispossessed who were of that view; everyone was of this view; it was a fact. Therefore, the phrase “the dispossessed are of the view that” could be removed because the paragraph without that phrase would be the more correct factual situation.

Ms K Mahlatsi (ANC) suggested that Mr Xaba switch off his video because Members could not hear what he was saying; perhaps it would better the connectivity (if he switched off the video).

Mr Xaba said that the ANC agreed with the proposal made by Adv van der Merwe. “It is a fact that hunger for land amongst the dispossessed is palpable, and very little is being done to redress the skewed land ownership”. That was the reason why the Committee was engaged in the exercise. The ANC supported the deletion proposed by Adv van der Merwe.

Second paragraph of the preamble
Advocate van der Merwe said that there were no issues.

Third paragraph of the preamble
Adv van der Merwe said that the changes to the third paragraph of the preamble had already been discussed.

Fourth paragraph of the preamble
There was a proposal for the removal of the word “productive” before the word “participants”. The argument was that not all people want land or access to land for the purpose of being productive; in other words, ensuring that there was food production on such land. Tied in with that was to not only say “food security and agricultural reform programmes”, but to say, “participants in ownership, food security, agricultural and other land reform programs”. In other words, to make it clear that land reform was not limited to persons who would be productive on the land, and that there could be land reforms other than agricultural in nature.

Mr Xaba said that the ANC supported the removal of the words “productive” for the same reasons as advanced by Adv van der Merwe. Even if the section after the comma was deleted (i.e., after “reform programs,”), the meaning would not be lost. The whole sentence would read, “And whereas such an amendment will further ensure equitable access to land…” [unclear 1:41:14]. Or if it was replaced with a comma, the Committee would leave it a comma. The other words that came after “reform programs” could then be deleted. He asked if there were any reason why those words should be added.

Advvan der Merwe said that the argument was that expropriation and land reform was not only in respect of agricultural reform. Bearing in mind that a preamble did not create obligations or rights, it was simply setting the scene for the Bill that would follow. To some extent, whether the Committee included those words or not, the gist of the preamble was there. Of course, it was for the Committee to say that it wanted to refine it and make it say exactly what it was the Committee was trying to achieve. The inclusion of “other land reform” would be to say, “yes, we agree that the whole access to land could be for other types of land reform as well”. If the Committee did not include “and other reform programs", it would not change the meaning of section 25, and section 25 would still be applicable to all forms of land reform.

Mr Xaba was saying that the ANC supported everything before “and other land reform programs”.

Adv van der Merwe said she did not want to discuss that portion, because the Committee had already discussed it. It was simply consequential from other amendments made in the Bill. That was all the changes that the PLS could capture from the public and reflect in the Bill.

The Chairperson said that the Committee agreed to look at the revised second Bill considering the report on the submissions. It had done that clause by clause. What the Committee had dealt with did not require any advertisement. His view was that the Committee should allow Legal Services to go and make the adjustments that came out of the meeting’s discussions. When the Committee met on Friday 3 September, the Committee needed to adopt or reject the Bill clause by clause. With what happened that day (Wednesday 1 September 2021), he did not find any real deviation from the second revised Bill. The Committee still needed to factor in the changes here and there, polish it, clean it, and then put it before the Members for adoption. After that adoption, the Committee could instruct the administration to prepare a report, which needed to go to Parliament. Depending on how fast it would work, the Committee would set the date of the next meeting. The Committee could not set the date at that point, because the Chairperson would have to be in touch to see how far the administration was, and maybe recommend that by latest Wednesday or Thursday the following week, the administration should have done the report. The Committee would go through the report. That report would be the second revised Bill.

Mr Xaba proposed meeting on Wednesday or Thursday. That was, if on Wednesday, for some reason, the Committee did not complete its work, at least it would still have Friday to polish things up and conclude everything else.

The Chairperson said that the Committee would accept and move on that basis. He asked Members if they agreed that the Committee had concluded its business for the day.
Ms Mahlatsi and another Member agreed.

The meeting was adjourned.


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