ATC210909: Report of the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution, dated 8 September 2021

Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of Constitution

Report of the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution, dated 8 September 2021

 

(This report should be read together with the committee’s reports on public participation. See ATC No 57 – 2021, p 4 and ATC No 121 - 2021).

 

  1. On 25 July 2019, the National Assembly noted that in the Fifth Parliament, the National Assembly and National Council of Provinces adopted a report of the Constitutional Review Committee on the Review of section 25 of the Constitution, 1996 (ATC, 15 November 2018, p 4) recommending that Parliament –

 

  1. Amends section 25 of the Constitution to make explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform, so as 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 programs; and
  2. Urgently establish a mechanism to effect the necessary amendment to the relevant part of section 25 of the Constitution.

 

  1. The National Assembly further noted that an ad hoc committee was established to this effect but could not complete its task by the time of the dissolution of the Fifth Parliament and that the ad hoc committee recommended that the matter be concluded in the Sixth Parliament (ATC, 15 March 2019, p 92). The National Assembly resolved to establish an ad hoc committee in terms of Rule 253 to:

 

  1. Initiate and introduce legislation amending section 25 of the Constitution;
  2. Have regard to the work done and recommendations as contained in the reports of the Constitutional Review Committee and the previous ad hoccommittee on the amendment of section 25 of the Constitution;
  3. Consist of 11 voting members of the Assembly, as follows: African National Congress 6, Democratic Alliance 2, Economic Freedom Fighters 1 and other parties 2;
  4. Further consist of 14 non-voting members of the Assembly, as follows: African National Congress 2, Democratic Alliance 1, Economic Freedom Fighters 1 and other parties 10; and
  5. Exercise those powers as set out in Rule 167 that may assist it in carrying out its task.

 

  1. The Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution (committee) was expected to report to the National Assembly on 31 March 2020. However, due to the magnitude of the task, the outbreak of Covid-19, the declaration of the National State of Disaster and the promulgation of Regulations placing the country into lockdown, the committee could not complete its task before 31 March 2020. Further, due to significant public interest and inputs into the draft Bill, as well as further amendments based on public inputs, the deadline was extended several times and the committee is expected to table its final report on or before 10 September 2021.

 

  1. The committee convened its first meeting on 5 September 2019 and elected Dr MatholeMotshekga as its Chairperson. The committee was briefed on the work of the Constitutional Review Committee and the ad hoc committee that was established in the Fifth Parliament. Parliamentary Legal Services took the committee through the process of initiating a committee bill amending the Constitution for introduction. As part of this process, the Department of Trade and Industry briefed the committee on the impact of expropriation without compensation, specifically related to land owned by foreigners, on Bilateral Investment Treaties. On 6 November 2019, the committee also held a Constitutional Dialogue on Land Ownership. These initiatives,amongst others, informed the policy choices that underpinned the Draft Constitution Eighteenth Amendment Bill.

 

  1. On 3 December 2019, Parliamentary Legal Services briefed the committee on a Draft Constitution Eighteenth Amendment Bill. On 5 December 2019, different political parties made submissions in a committee meeting.The committee understood and agreed that a draft Bill at that stage would have to be agreed upon in order to trigger the public process of commenting on the Bill. It was understood that the initial draft Bill constituted a compromise in that it did not address all the issues the Committee may want the Bill to address.  On 13December 2019, and in compliance with Rule 276(1)(b) and section 74(5) of the Constitution, the draft bill was published in the Government Gazette(number 42902) for public comments. The closing date for public comments was 31 January 2020 but was later extended to 29 February 2020. The draft bill was also sent to provincial legislatures and referred to the National House of Traditional Leaders for comments (ATC No 119–2019).No inputs were received from provincial legislatures. The draft bill was also advertised in various newspapers and in all official languages for public input. The following departments were invited to comment on the Draft Bill: Justice and Constitutional Development, Minerals and Energy, Agriculture, Land Reform and Rural Development and Public Works and Infrastructure.

 

  1. Given the importance of the land question and the process of amending the Constitution, the committee resolved to conduct public hearings in all provinces. The committee established two groups so as to expedite the process of public consultation. All parties represented in the committee were allowed to have a representative in both groups. Public hearings commenced on 28 February2020 but had to be postponed inMarch 2020 due to the outbreak of the corona virus pandemic. A public hearing session scheduled for 25 October 2020 in Polokwane had to be cancelled as a result of disruptions by some members of the public. The session was rescheduled and took place smoothly on 7 November 2020. The committee also listened to oral input from stakeholders who had requested an opportunity to address it. The list of organizations that made oral input and details of the public hearings are contained in the committee’s Report on Public Participation (see ATC No 57- 2021).

 

  1. The committee deliberated extensively on the scope of its mandate so as to ensure that it stayed within the Rules of the National Assembly. The committee was in agreement that its mandate was to amend section 25so as to explicitly provide for expropriation of land without compensation as a legitimate option for land reformbut differed on whether it was limited to the Draft Bill as published or it could amend other provisions of section 25 as per the public hearing submissions.  It was argued that section 25 had to be read and interpreted as a whole. Therefore, the committee could amend other sections as per its mandate.

 

 

  1. The committee noted that although it had not advertised the whole section for comments, members of the public had submitted comments on the whole section. It was argued that the committee could not simply ignore such submissions. A contrary view was that the committee required permission of the Assembly before it could amend other sections not listed in the Bill.

 

  1. On 16 April 2021, the committee deliberated on its Report on Public Participation, oral inputs by stakeholders and views expressed during provincial public hearings. Informed by these inputs, and in accordance with Rule 274(2), the committee revised the Draft Constitution Eighteenth Amendment (Revised Draft Bill) and proposed further amendments to section 25 of the Constitution. The Revised Draft Bill was also advertised for public comments (see Second Report on Public Participation: ATC No 121 - 2021) and referred to the National House of Traditional and Khoi-San Leaders for comments (ATC 98-2021).

 

  1. On 26 August 2021, Committee Section presented a summary of comments/ report on public input on the Revised Draft Constitution Eighteenth Amendment Bill. At the request of the Management Committee, Parliamentary Legal Services also presented possible amendments to the Revised Draft Bill based on comments received from the public. Members of the committee were given an opportunity to consult with their parties before any decision could be taken on the proposed amendments. On 1 September 2021, the committee deliberated on the Revised Draft Bill and proposed amendments and provided final drafting instructions to the Parliamentary Legal Services. The committee met on 3 September and adopted the following amendments to the 18th Constitution Amendment Bill as put out for public comment as follows: with the Democratic Alliance andFreedom Front Plus dissenting:

 

 

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The Ad Hoc Committee made no amendments to subsections (1); (6); (7); (8) and (9).

 

  1. Having complied with Rules of the National Assembly and the Constitution of the Republic of South Africa and having considered the Draft Constitution Eighteenth Amendment Bill, the ad hoccommitteeintroduces the Constitution Eighteenth Amendment Bill in terms of Rule 297.

 

 

 

Report to be considered.

 

 

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