Expropriation Bill: response to public inputs from Parliamentary Legal Adviser, DPWI & OCSLA

Public Works and Infrastructure

24 November 2021
Chairperson: Ms N Ntobongwana (ANC)
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Meeting Summary


Tracking the Expropriation Bill in Parliament

The Department of Public Works and Infrastructure (DPWI), the Parliamentary Legal Adviser and the Office of the Chief State Legal Adviser (OCSLA) were scheduled to brief the Committee on key issues and clauses highlighted for review in the Expropriation Bill [B23-2020]. However, the briefing had to be rescheduled for consideration by the Committee next year, as the presentations had not been circulated to Members, and they were not prepared to consider them without having had an opportunity to engage with the material prior to the meeting.

Members agreed that prior engagement was particularly important, given the nature of the Expropriation Bill and the implications it would have for South Africa. The only document they had received had come from the DPWI, but this covered only the property clause within the Bill, and did not address any other clauses. The Chairperson ruled that this was inadequate, and requested a comprehensive report from the Department.

The Chairperson also noted that the legal team representing the DPWI had been outsourced. A Member suggested that sourcing external legal advice may be considered as fruitless and wasteful expenditure when Parliament had its own legal advisers. The Minister and the Department needed to provide an explanation for this outsourcing. There was also a concern that the presentations were not covering all the issues raised in respect of the Bill.

The Department, the Parliamentary Legal Adviser and the OCSLA were dismissed from the meeting and requested to formulate comprehensive reports, and to circulate all documents which they would deal with during their presentations well in advance.  Members agreed that the presentations should be moved to a meeting in the first term of 2022.

The Chairperson commended the Members for performing their oversight duties diligently. The Committee was not here to rubberstamp things. The Committee was repealing an Act which had been promulgated by the apartheid government, and should therefore not be taken lightly. Documents needed to be sent to Members in advance so that when they deliberated, they did so from an informed position.


Meeting report

The Chairperson said the purpose of the meeting was for Members to receive clarity on certain issues which had been raised in the previous meeting in respect of the Expropriation Bill [B23- 2020]. Members had not received any documents in preparation for the meeting. The only document which had been circulated was one from the Department of Public Works and Infrastructure (DPWI), which focused almost exclusively on “property” and none of the other contentions. The Parliamentary Legal Adviser, the DPWI and the Office of the Chief State Law Advisor (OCSLA) were urged to be mindful of the fact that Members had not been exposed to the materials they would be presenting. The circulation of documents to Members prior to the meeting was very important, particularly in meetings of this nature. In dealing with the Expropriation Bill (EB) the Committee aimed to see transformation in South Africa.

Ms Nola Matinise, Committee Secretary, said that the DPWI legal branch would commence the presentation, followed by OCSLA and then the Parliamentary Legal Adviser. The Minister had sent an apology, as she was attending a Cabinet meeting.

The Chairperson commented that the DPWI had outsourced a legal team to respond and present on their behalf.
Expropriation Bill: response to public inputs

Adv Geoff Budlender, Senior Counsel, on behalf of the DPWI, started by asking whether Members had received the memorandum prepared by his team. This memorandum would explain to Members how on the afternoon of Saturday, 20 November, his team had been given a large volume of the documents and submissions which had been made to the Committee during the public participation process. His team had not been able to work through all of the materials due the short time period they were given. Not all matters could therefore be dealt with at this stage. They would be able to deal broadly or give a broad overview of the sizeable documents and submissions they had received. The report presented to the Committee today would be limited. He asked that his team be excused after their presentation, because they would not be in a position to contribute on other matters.

The main matter which they had considered was the question on the definition of “property.” The term was not defined in the Expropriation Bill (EB) -- it appeared in the Constitution, but was also not defined. The question therefore was whether the Bill should contain a definition of property. Section 25 of the Constitution performed two functions. The provision firstly entrenched the protection of existing property rights against unconstitutional interference. Secondly, it provided for the transformation of property rights, restitution, redistribution and reform.

The Chairperson interjected at this point to highlight a few important issues. The legal team would be released from presenting today. She was not comfortable continuing with their presentation until they had gone through all the material they had received from the Department. A limited report focusing on one clause was not acceptable. The legal team had to produce a comprehensive report which covered all the clauses in issue. It was important for the Committee to receive a comprehensive report so that there was finality during the deliberations, and all grounds were covered when they eventually presented the Bill in Parliament. It would not be fair to waste time in creating a clause under these circumstances, only for the Committee to be referred back to the beginning stages again due to inconsistencies. This would be a disservice to stakeholders -- the citizens and Members of Parliament.

Ms S Graham (DA) thanked Adv Budlender for having prepared a document for the presentation at such short notice. This document had been circulated to Members. It was very interesting and fantastic in that it spoke to the constitutional definition of ‘property’. The term ‘property’ had been referenced in the EB as “property as so defined in section 25” of the Constitution. The issue people had with the property clause was that it should not be defined in terms of a constitutional mandate.

The Chairperson intervened, and said that she did not want the Committee to interact with the document because it dealt with only one clause -- the definition of ‘property’. Adv Budlender had indicated that his team still had to prepare other documents. They would be released so that the team, along with the DPWI, would prepare a comprehensive report which dealt with all the clauses, not just one clause. Members were therefore asked not to entertain the one clause which the document addressed.

Ms Graham suggested that if Adv Budlender and his team were being sent away to work on the report, she wanted to highlight the fact that the issues raised around the property clause did not concern the constitutional definition of property. What needed to be understood or clarified was which property type would be subject to the expropriation. This determination should not require a constitutional definition. Some of the information Adv Budlender and his team had listed in terms of case-law mentioned certain property which she felt should not be included in the EB. Adv Budlender and his team should look at the property clause in terms of the EB, and not the Constitution.

Ms M Hicklin (DA) wanted to know why a legal team/firm had been outsourced, when Parliament had its own legal advisers who could have been used. The legal advisers from Parliament were capable of doing the work which had now been given to Adv Budlender, an outside consultant, and his team. Would this not be viewed as fruitless and wasteful expenditure? She asserted that her question had no bearing on the report which had been prepared by Adv Budlender. Parliament had its own legal Department and its own state law adviser. She assured Adv Budlender that this was not a question about him, but about the decision of the Minister to outsource.

The Chairperson asked Adv Budlender not to respond to the questions regarding the outsourcing of this firm. He “didn’t bring himself here,” so he could not respond to those questions. This was a matter for the DPWI to explain. The Committee expected responses from the Department.

Ms S Van Schalkwyk (ANC) said that it would be best to pause and refer the current matter to the first meeting next year. It would be unfair to direct questions to Adv Budlender, because he was not in a position to answer them. The questions and concerns of the Members should be directed to the Department and in particular to the Minister. Adv Budlender should give the Committee feedback next year. It was important that Members be given presentations well in advance for them to screen through the information and be properly prepared.

The Chairperson said that it was evident that Adv Budlender, in his representative capacity for the Department, was not ready to present today. Adv Budlender, and therefore the Department, were released from the meeting. Another meeting would be called early next year. The Committee had already adopted a programme. The Bill was very crucial. South Africans were looking at the Committee to address the issues around expropriation. The OCSLA and the Parliamentary Legal Adviser had not circulated any documents to Members. These documents needed to be sent to Members in advance so that when they deliberated, they would do so from an informed position. The Committee would not “rubber-stamp” things.

She asked the Committee Secretary whether the OCSLA and the Parliamentary Legal Adviser had sent any documents.

Ms Matinise confirmed that no documents had been received from the Parliamentary Legal Adviser and the OCSLA.

Ms Phumelela Ngema, Parliamentary Legal Adviser, said that to bring direct responses to the questions posed by the Committee, she had prepared a presentation which would speak to the issues in respect of the Bill. She had consulted with the State Law Adviser in anticipation on how to go about presenting the work they were asked to do. Understanding how the processes normally ran, the expectation was that the DPWI would first present and that the Parliamentary Legal Adviser would add-on, or deal with issues where the Department fell short. In that light, and having followed the direction of NA Rule 286(6), they had reasoned that the Committee was at the stage in the process where the principles and subject matter of the Bill would be discussed. She, along with the State Law Adviser, would address the issues they had picked up in respect of the principles and subject matter of the Bill. She was ready to present, but would have appreciated having more time to engage with the submissions.

There were five presentations that had been created, but she felt it would have been unfair to submit all of them to the Members. She had collected and compiled them into one report which addressed all the issues. She was ready to guide the Committee. There was a desire for the support team, which included the content advisor and the Committee Secretary, Parliamentary legal services, the Department and the State Law Advisor, to all meet together, apply their minds and iron out all the issues. The support team unfortunately had not been able to have such a meeting. The meeting today would be beneficial, because it would assist the Department, whenever they were invited back, to cover the issues picked up by the legal adviser in respect of the submissions made by the public.

The Chairperson asked what the state of readiness was for the OCSLA

Mr Shaun van Breda, Senior State Law Adviser, OCSLA, said he concurred with Ms Ngema that it would be preferable if they were afforded more time to deal with all of the issues together with the Department.  However, he was ready to present and speak on certain issues. He was prepared to address the biggest constitutional issues within the Bill.

He apologised for not circulating the presentation/memorandum to the Committee. The normal process was that the Department would approach the Committee with a presentation, and the presentation would address all the issues raised in the public comments. The OCSLA would thereafter assist the Committee by giving advice in respect of the constitutional issues. The OCSLA would then work with the Parliamentary Legal Advisor in proposing amendments and effecting amendments to the Bill. The OCSLA worked very closely with the Department and the Parliamentary Legal Adviser.  He was not aware that a memorandum / presentation needed to be circulated to Members, because this was not the normal procedure. The OCSLA merely addressed constitutional issues. The Department was the only party that could speak to matters concerning policy and other matters in respect of the Bill. He was ready to proceed, with the permission of the Chairperson.

The Chairperson asked whether Members had any opinions on the matter, or whether she should conclude on their behalf.  

Ms Hicklin responded that the Chairperson should conclude on the Members' behalf. She did not feel comfortable having no documents before her to read and from which to formulate questions. She may have been good at reading and formulating questions spontaneously, but the EB was vitally important to the future of South Africa. She did not believe that the Committee could take it lightly. It was not appropriate to take questions "on the fly," to analyse matters and ask questions “as we go along.” Members needed to study the documentations prior to the meeting.

She expressed discomfort at not being given time to engage with the presentation prior to the meeting. This prior engagement was particularly important, given the nature of the EB and the implications it had for the whole of South Africa. She was not comfortable sitting through a presentation without prior exposure to the documents, and then while listening being expected to formulate questions impromptu. This would not be doing justice to the voters. Members should not be expected to make inputs on materials they had not had time to look at.

Ms A Siwisa (EFF) also expressed concern about not having any documents during the presentations. Sometimes the meaning or explanation of words might throw Members off, and having the documents before them would enable them to identify and clarify their meaning with the presenters. During presentations, presenters might also skip certain parts of the presentation which Members might find important. It would therefore only be wise for documents or memorandums to be circulated to Members for them to engage with the material. She would often pick up little things which, during the presentation, might slip the mind of the presenter. It would only be fair for Members to receive documents prior to the presentations.

The Chairperson said in summary that the Members had not received any documents, aside from the document received from Adv Budlender, who represented the Department. This document made reference to only one clause -- the property clause of the EB -- and not all the clauses. The Committee felt that no due diligence had been done, and they therefore could not interact with the information that would be presented to them now.

The EB was a very important Bill. South Africans had their eye on the Committee to see how it would handle the Bill moving forward. This Bill would have serious implications for the future of South Africans. The Committee was repealing an Act which had been promulgated by the apartheid government. It should therefore not be taken lightly.

Mr Van Breda and Ms Ngema were dismissed and were requested to “go back” and do their work. They would be given an opportunity to present in the future once a comprehensive report, which prior to the meeting had been circulated amongst Members, had been compiled. The circulation of documents prior to the meeting was important, because it would enable Members to engage and deliberate from an informed position. The Parliamentary Legal Adviser and the OCSLA would be invited to present in 2022.

The Chairperson therefore dismissed Adv Budlender representing the Department, Ms Ngema representing the Parliamentary Legal services/ and Mr Van Breda representing the OCSLA/ from the meeting.

She asked the Committee Secretary whether there were other items they had to deal with.

Adoption of Minutes

Ms Matinise announced that the next agenda point was the consideration and adoption of the minutes of previous meetings.

There were four sets of minutes which spoke to the process of the EB, another was for the budget vote, and another concerned the 2020/21Budget Review and Recommendations Report (BRRR).

There had been a Committee meeting on 11 May at which a briefing was received from the DPWI on the annual performance plans for 2021/22. The Committee had then adopted the budgetary report and had planned to adopt the minutes from the previous meeting. Members had been sent the minutes prior to the meeting, and were asked whether they had any inputs. Moving on to the resolutions, there had been one resolution that all the recommendations outlined in the 2020/21 budget vote be implemented by the DPWI according to the set timeframes. At this meeting, the Committee had adopted the 2020/21 budget vote report for tabling.

The Chairperson asked Members to engage with the minutes and respond if there were any corrections needed. In the absence of corrections, the Chairperson asked for a mover and a seconder for the adoption of the minutes.

Ms Hicklin identified a few errors in the minutes of the meeting held on 4 May. There were certain repetitions.

Ms Matinise would revert back to the recording to determine which Member had moved for the adoption at that meeting.

The Chairperson asked that the minutes under discussion be moved to another date for consideration, since they needed some clarification.

The Committee was then asked to move on to the next set of minutes.

Ms Matinise presented the minutes of the meeting held on 7 September. This was the second phase of oral submissions on the EB. Members were invited to comment.

Ms Hicklin said her initials had been inverted, and this needed correction.

Ms L Mjobo (ANC) moved the adoption of the minutes. Ms Graham seconded.

The minutes of the meeting held on 11 November, at which the Committee received briefings from the Auditor-General, the DPWI as well as the entities, were forwarded for adoption. The BRRR for 2020/21 was considered and adopted in this meeting. The DPWI was supposed to submit a detailed report to the Committee about progress made with the Telkom project outlining all specific timelines within seven working days after the meeting. The due date had lapsed, and the information had not been received. The second resolution was that the DPWI should implement the recommendations as captured in the BRRR.

Ms Graham moved the adoption of the minutes. Ms Hicklin seconded.

The Chairperson confirmed the adoption of the minutes

Ms Matinise said that the last set of minutes dealt with the meeting on 17 November, at which the Committee received a presentation on the Expropriation Bill dealing with public participation. The resolution was that the Committee adopt the report with amendments, and to accept the recommendation of processing the Bill during the first term of 2022.

Ms Graham supported the adoption of the minutes. Ms Hicklin seconded.

The Chairperson confirmed the adoption of the minutes.  

Ms Matinise confirmed that there were no other items. Next week the Committee would be dealing with the two petitions on road and transport issues pertaining to public works.

The Chairperson asked Ms Matinise to bring the set of minutes which had been deferred in this meeting to next week's meeting.

Ms Matinise said that two minutes would be adopted at next week's meeting -- the deferred minutes and today’s meeting minutes.

The Chairperson thanked the Members for their deliberations and for always playing their oversight role. As public representatives and especially as Members of Parliament, one of the responsibilities was that oversight role. This meant that Members always needed to be vigilant. They could not come to the meeting and then be presented with something and then rubberstamp it. Documents needed to be read before coming to a meeting. The Committee did not want to adopt legislation with loopholes. Members must continue being vigilant and represent South Africans.

The meeting was adjourned

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