• Policy Watch SA

EXPROPRIATION BILLS: the parliamentary process in summary

Updated: Sep 19


Now that the Constitution 18th Amendment Bill has been formally tabled and is on the National Assembly's order paper under 'further business', interested and affected parties may find this brief summary helpful.

  • For a Bill amending the Constitution to be passed, it must be supported by two-thirds of the 400-member National Assembly.

  • The ANC will require 37 opposition party MPs to vote in favour of the Bill if it is to be passed.

  • If passed by Parliament, the Constitution 18th Amendment Bill will amend section 25 of the Constitution (property rights) to explicitly provide for expropriation with nil compensation for land reform purposes in circumstances deemed just and equitable.

  • It will become the framework legislation within which enabling national legislation will then be used to enforce what is envisaged.

  • The enabling national legislation is expected to be the revised Expropriation Bill, which is now before the National Assembly's Public Works & Infrastructure Committee.

  • If passed by Parliament, the revised Expropriation Bill cannot be implemented without the necessary regulations.

  • It is customary for regulations giving practical effect to new legislation to be released in draft form for public comment before being finalised for implementation.

  • The process of passing and implementing legislation to allow land to be expropriated for nil compensation is therefore far from complete and commentators are ill-advised to speculate how it will end. We simply do not know.

  • On Tuesday 7 September, the National Assembly's Public Works & Infrastructure Committee hosted a second round of oral representations in support of written submissions received when the revised Expropriation Bill's public participation process began.

  • The first phase was held in March, in tandem with oral representations on the Constitution 18th Amendment Bill.

  • At the time, this prompted Mathole Motshekga – in his capacity as chair of the ad hoc committee responsible for preparing the Constitution 18th Amendment Bill – to issue a media statement expressing concern that a parallel oral submissions process might be ‘putting the cart before the horse’. ‘Our process should inform what should be in the Expropriation Bill,’ he said in the statement, undertaking to ‘write’ to Public Works & Infrastructure Committee chair Nolitha Ntobongwana in the light of similar concerns ‘raised several times’ during his committee’s hearings (Legalbrief Policy Watch, 7 September 2021).

  • A Public Works & Infrastructure Committee statement released later that day tended to blame this procedural blunder on ‘the House chair of committees’, Cedrick Frolick. Referring to the glitch as an ‘unfortunate incident’ that should have been ‘avoided at all costs’, the statement conceded that parallel hearings ‘might have led to unnecessary confusion’ and even ‘curtailed’ the participation of some stakeholders in one or other process. It was apparently then that the seeds of plans for a ‘second round’ were sown (Legalbrief Policy Watch, 7 September 2021).

  • Before Parliament announced its six-week pre-local government elections recess (allowing MPs to attend to constituency matters), the Public Works & Infrastructure Committee was planning to complete its work on the revised Expropriation Bill on 22 September. It appears not to have factored into these plans a briefing from departmental officials on the possible implications of input received during the public participation process, which is standard procedure.

  • The 13 September to 1 November recess seems likely to leave the revised Expropriation Bill in limbo, since 'no approvals of oversight and ordinary meetings shall be granted'; and 'only committees with ... constitutional deadlines will be granted permission to meet'.

  • However, the possibility of a special sitting to consider and vote on the Constitution 18th Amendment Bill cannot be ruled out.

Summaries of each significant committee meeting throughout the entire process to date can be found

and


Lists of parliamentary media statements (with links) on the draft Constitution 18th Amendment Bill and revised Expropriation Bill provincial public hearings can be found