THE PARLIAMENTARY PROCESS continued
19 May 2022
On 1 June, the National Assembly's Public Works & Infrastructure Committee is scheduled to consider an 'A' list on the amendments now being considered. This means that the committee could be about to complete its work on the Bill, which could therefore be tabled in the House for a second reading before the winter recess begins on 20 June. The committee has not met to consider the Bill since 19 April.
26 April 2022
Ex parte advice from Advocates Geoff Budlender and Uday Naidoo presented to the National
Assembly's Public Works & Infrastructure Committee on 30 March and 19 April (with a fortnight's constituency period in between) has draw attention to several shortcomings in the Bill. It was sought by the Department of Public Works & Infrastructure with the aim of responding to queries raised by committee members during a first round of clause-by-clause deliberations. Among other things, the advice (a supplementary version of which is now available) includes recommendations that, if adopted, could go some way toward addressing concerns about the implications for lenders of expropriating mortgaged property for nil compensation.
When Advocate Naidoo presented the original version of this advice on 30 March, he mentioned that there were other aspects of the Bill on which he and Advocate Budlender would welcome an opportunity to comment. Committee chair Nolitha Ntobongwana than asked him to prepare supplementary advice on those issues - and the extra time provided by the constituency break facilitated that process.
22 March 2022 (as posted on LinkedIn)
During this morning’s meeting of the National Assembly’s Public Works & Infrastructure Committee, clause 12 was discussed at length. It proposes circumstances in which it might be deemed just, equitable and in the public interest to expropriate landed property with nil compensation.
According to the DA’s Samantha Graham-Mare, her party’s position is that the entire clause is unconstitutional and should be removed. This is given that, in the DA’s view, it builds on an amendment to section 25 of the Constitution (property rights) proposed in the Constitution 18th Amendment Bill, which the House rejected in December.
The Constitution 18th Amendment Bill sought to provide explicitly for land expropriation with nil compensation for land reform purposes in circumstances deemed just and equitable.
The Bill was rejected by the House because it did not receive the support of two-thirds of its members. The ANC holds 57.5% of National Assembly seats and required the support of EFF members to pass the Bill - which the EFF withheld, being of the view that the amended section 25 proposed in the Bill did not reflect the party’s February 2018 motion, which was adopted by the House at the time.
Throughout the entire Constitution 18th Amendment Bill parliamentary process, the DA’s position was that section 25 of the Constitution already provides implicitly for land expropriation with nil compensation.
During this morning’s meeting, the Office of the State Law Adviser’s Shaun van Breda attempted to allay concerns about the Expropriation Bill’s implications for banks in the context of mortgaged landed property. These concerns are apparently unfounded given provisions in the Bill on the role of the courts; and provisions in the Constitution and the Bill mitigating against the arbitrary deprivation of property.
23 February 2022
'The Constitution requires an Act to ... put right what went wrong' – and 'it is clear from the people and government what is expected'. National Assembly Public Works & Infrastructure Committee chair Nolitha Ntobongwana and parliamentary legal adviser Phumelela Ngema (respectively) made these remarks this morning during a meeting at which members were briefed on the merits or otherwise of concerns expressed about the constitutionality of certain provisions in the revised Expropriation Bill. The concerns were repeatedly articulated during the first leg of last year's public participation process, which included nationwide and parliamentary hearings.
In anticipation of briefing the committee on its response to the issues raised, the Department of Public Works & Infrastructure sought ex parte advice from Advocate Geoff Budlender, whose presentation on 24 November was cut short – mainly because the department and committee secretariat had not followed the necessary procedures, or so it seemed at the time. Nearly three months later to the day, Budlender's presentation confirmed, among other things, that 'the Constitution and the Bill do not provide for expropriation “without” compensation' but instead 'provide for just and equitable compensation, which in some cases will be nil'. His input was followed by a presentation from Ngema and another from the Office of the State Law Adviser's Shaun van Breda.
The only committee member to comment on this morning's presentations was the DA's Samantha Graham-Maré, supported by her colleague Madeleine Hicklin. Graham-Maré's input focused on the powers of the court; who would be expected to meet the costs entailed in any 'legal battle' that might ensue, following a land owner's receipt of an expropriation notice; and the contents of a socio-economic impact assessment that, in her view, lacks input on the Bill's implications for the broader economy and investment. However, Graham-Maré's reference to the value of all three presentations in 'taking the emotion out of the Bill' and adding a 'more balanced perspective' to the process was not endorsed by Ntobongwana. She may have interpreted these remarks as a criticism of the way the Bill has been handled by the committee thus far. Ntobongwana nevertheless agreed that the presentations had 'clarified a lot of things about expropriation and property'.
Clause-by-clause deliberations on the Bill are scheduled to begin on 9 March.