CONSTITUTION: SECTION 25 AMENDMENT PROCESS CLARIFIED

This article appeared in the 28 October edition of Legalbrief Today, under Policy Watchand was not reserved for subscribers only

For information on proposed amendments to section 25 presented to the parliamentary committee concerned on 6 November 2019, please refer to the article immediately above this one

Amendments to section 25 of the Constitution specifying the circumstances in which land may be expropriated without compensation will take the form of a section 74(2) Bill, which is likely to be subjected to robust public participation in the provinces once the proposed new piece of legislation has been approved by the National Assembly and sent to the NCOP for concurrence. This was unfortunately omitted from a media statement issued by the ad hoc National Assembly committee concerned after its meeting last Friday – a statement only published on Parliament’s website the following Monday.

According to a Parliamentary Monitoring Group sound recording of the meeting, when responding to a call from the ANC’s Zwelivelile ‘Mandla’ Mandela for a longer public participation process, committee chair Mathole Motshekga noted the vital importance of ensuring that Parliament’s ‘constitutional mandate’ in this regard is strictly observed. In the context of Friday’s discussions, he was probably referring to the committee process itself and Mandela did not pursue the matter. However, while most MPs are familiar with the procedures followed by both Houses when considering and adopting a Bill, they may well need to be spelled out in media statements – if only for the sake of clarity.

In the sound recording, committee members are told that themes emerging from their upcoming ‘constitutional dialogue on land ownership’ will inform discussions on policy imperatives to underpin a first working draft of the Bill. These are expected to take place during meetings tentatively scheduled for 13 and 15 November. The working draft will then be finalised for presentation to members on 29 November, when a two-week period of formal deliberations will begin – extending into the National Assembly’s first constituency week. It is anticipated that the draft Bill will be ready for publication in the Government Gazette during the week ending Friday 13 December.

According to Parliamentary legal adviser Charmaine van der Merwe, the three-week period officially allowed for comment from members of the general public will only begin after the festive season – although they will in fact have far longer. This is noting past criticism levelled at other committees when the public commentary period for a draft Bill has fallen during the festive season. However, the main reason for gazetting the proposed new statute early in December will be to give the provincial legislatures and National House of Traditional Leaders time to arrange sittings during January in anticipation of preparing and submitting their own input.

The draft Bill is expected to comprise one substantive clause and a short title. This notwithstanding, given its considerable significance to the entire country and its citizens the deadline for all written submissions has been set at 27 January, after which input will be arranged into themes and considered by the committee. Public hearings are expected to be held between 17 and 21 February. Further deliberations will then ensue and any changes deemed appropriate made, possibly informed by legal opinions. It is anticipated that, from 20 March, the committee will be ready to finalise the Bill for tabling in the National Assembly.