Behind the scenes of public policy and law-making in South Africa (where views are expressed, they are my own and do not in any way reflect those of Juta Law or the editors of publications to which I contribute)
Parliamentary legal adviser Charmaine van der Merwe was instructed last Wednesday, 13 November, to begin drafting the necessary Constitution Amendment Bill. Her work will be underpinned by themes that emerged during a constitutional dialogue on land reform held by the ad hoc committee to which she reports on this matter. On Wednesday 13 November, political parties represented in the committee were given two days to comment on Van der Merwe’s presentation on these themes.
Contrary to the opening sentence of a DA media statement issued on 15 November, political parties were not required to meet a ‘deadline’ that very day for submitting their input on ‘the draft section 25 amendment Bill’. No such document exists. There appears to have been a misunderstanding, despite the final sentence of a committee press release on Wednesday’s meeting clearly giving political parties ‘until Friday (that week) to make further submissions, if any, on the themes of the constitutional dialogue’. This misunderstanding was communicated more widely in last Saturday’s edition of The Star.
Both the DA’s statement and The Star leave nobody in any doubt about the leading opposition’s position on amending the Constitution to more explicitly provide for land expropriation without compensation, Unfortunately, however, they have misinformed the public on the process being followed by the committee.
Anyone questioning the accuracy of this account of last week’s events should listen to a Parliamentary Monitoring Group sound recording of the meeting, which is freely available to members of the general public.
This article appeared in the 8 November edition of Legalbrief’s Law Society of SA weekly newsletter
For information on the process to be followed in amending the Constitution to provide explicitly for land expropriation without compensation, please refer to the previous article (immediately below this one)
Two possible options for amending section 25 of the Constitution (property rights) will be considered by the ad hoc parliamentary committee tasked with initiating and introducing the legislation required to make explicit what is already implicit in section 25 regarding land expropriation without compensation. This was confirmed in a recent committee media statement following its constitutional dialogue on land reform, when ‘experts and stakeholders’ shared their ‘insights’ on issues of concern. However, a Parliamentary Monitoring Group sound recording of the workshop at which these proposals were presented does tend to point to minor inaccuracies in the statement. Parliamentary legal adviser Charmaine van der Merwe has recommended that either sub-sections 25(2)(b) and 25(3) be amended – or that they remain as they are and that a new sub-section is inserted.
She envisages the amended sub-section 25(2) reading: ‘Property may be
expropriated only in terms of a law of general application (a) for a public
purpose or in the public interest; and (b) subject to compensation, the amount
of which and the time and manner of payment of which have either been agreed to
by those affected or decided or approved by a court, provided that a court
may determine that no compensation is payable in the event of expropriation of
land for the purpose of land reform’. The change envisaged for sub-section
25(3) would then be consequential and would replace the entire sub-section with
a provision possibly reading: ‘Where compensation is payable, the amount of
the compensation and the time and manner of payment must be just and equitable,
reflecting an equitable balance between the public interest and the interests
of those affected, having regard to all relevant circumstances’.
Alternatively, a new sub-section could be inserted, possibly reading: ‘Notwithstanding
the requirement for compensation contemplated in subsections (2), (3) and (4),
for the purposes of instituting land reform and in order to redress the results
of past racial discrimination, land may be expropriated without the payment of
any compensation as a legitimate option for land reform’. Van der Merwe
does not support a presidential panel recommendation that the only amendment
required is the insertion of a sub-section specifying the circumstances in
which land would be expropriated without compensation. In her view, this would
need to be combined with one of the two options proposed.