PLEASE NOTE: On 12 January 2022, the authorship of Legalbrief Policy Watch will change hands. In anticipation of this, POLICY WATCH SA will no longer feature Pam Saxby's reports on the parliamentary process. Anyone wanting Pam to continue keeping them 'IN THE LOOP' should click here to contact us, using the form at the bottom of the page.
Copied below, in reverse date order, are summaries of parliamentary committee meetings on the remaining Constitution 18th Amendment Bill development and revised Expropriation Bill finetuning process. These summaries were first published in Legalbrief Today under 'Policy Watch'. Juta Law owns the copyright to these summaries, which is why several days are allowed to lapse before they appear here (with Juta’s permission).
PLEASE READ THIS UPDATE, bearing in mind that THE TWO BILLS ARE LINKED and that MEDIA COMMMENTATORS RARELY REPORT ON THEM IN CONTEXT:
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 and ready for implementation.
On 9 September, the Bill and the required accompanying report were tabled in the National Assembly. They were on its order paper under 'further business' when Parliament adjourned for a six-week pre-local government elections constiutency period
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.
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).
Parliament's pre-local government elections 13 September to 1 November constituency period 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.
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.
AGAINST THAT BACKDROP, the legislative process for both Bills is summarised below in reverse date order. The summaries were first published in Legalbrief Today under Policy Watch, the copyright of which is held by Juta Law. They were compiled by the author of Policy Watch SA and are provided as a resource, with Juta's permission.
20 September 2021
The Constitution 18th Amendment Bill has finally been published – having been tabled in the National Assembly on 9 September. This marked the culmination of a long, often tortuous, occasionally volatile drafting process on which Legalbrief Today has regularly reported. It was driven by an ad hoc committee established in February 2019 and chaired by the ANC’s Mathole Motshekga, whose remarkable patience never waned despite regular attacks from opposition party representatives in his committee, reports Pam Saxby. Providing explicitly for land expropriation with nil compensation in circumstances proposed in sub-clause 12(3) of a revised Expropriation Bill now before the National Assembly’s Public Works & Infrastructure Committee, the amendment Bill will require the support of two-thirds of the House to be passed. Should it muster at least 267 votes, the Bill will be sent to the NCOP, where – because it seeks to amend the Bill of Rights – at least six provinces will need to vote in its favour.
It is not clear what will happen to the revised Expropriation Bill should the Constitution 18th Amendment Bill not receive the level of support required in the National Assembly. Originally tabled in 2015, the Expropriation Bill’s ‘D’ version was passed the following year – but remitted in 2017 because of reservations about the constitutionality of its public participation process. The Bill was then withdrawn in the light of a decision by the House to amend section 25 of the Constitution to provide for land expropriation for nil compensation when deemed just and equitable. Revised to include provisions giving practical effect to yet-to-be-finalised draft Constitution section 25 amendments, it was tabled in October last year – by which time a public participation process on the draft Constitution 18th Amendment Bill was already in full swing. The revised Expropriation Bill has since been the focus of parliamentary and nationwide public hearings on which Legalbrief Today has also reported.
11 September 2021
The Constitution 18th Amendment Bill and an accompanying report were officially tabled in the National Assembly on Thursday. They appeared under ‘further business’ on Friday’s order paper, reports Pam Saxby. A report on the first round of public participation was tabled in May – followed by one on the second round, which was tabled on Wednesday. Seeking to amend section 25 of the Constitution to explicitly provide for expropriation with nil compensation for land reform purposes when deemed just and equitable, the Bill will either languish on Parliament’s back burner until the end of its pre-local government elections constituency period – or be the focus of a special sitting of the National Assembly sometime during the next six weeks. As has been widely reported, to be passed the proposed new piece of legislation will require support from two-thirds of the 400-member House.
8 September 2021
The latest round of oral submissions on the revised Expropriation Bill has once again drawn attention to opposing views repeatedly expressed during provincial hearings on the Bill – as well as myriad issues raised during the first round of parliamentary hearings in March and throughout a lengthy public participation on the draft Constitution 18th Amendment Bill. However, only one presentation explicitly drew attention to different outcomes for the owners of land earmarked for expropriation if the soon-to-be-tabled Constitution 18th Amendment Bill is passed, reports Pam Saxby. Presenting on behalf of the Centre for Development & Enterprise, Ann Bernstein made her views on state custodianship very clear in a document focusing on what she perceives to be the revised Constitution 18th Amendment Bill’s many flaws. Should it not be passed, Bernstein believes the Expropriation Bill’s proposals are ‘broadly workable’. However, she did express concern about provisions apparently making expropriation for nil compensation applicable for purposes of other than land reform.
Like Stellenbosch University law trust chair in social justice, Thuli Madonsela, Bernstein also drew attention to the Bill’s possible abuse for purposes of facilitating what she termed ‘expropriation in bad faith’. In that regard, Madonsela used several poignant case studies to illustrate the dangers of exacerbating poverty and inequality should the Bill be misinterpreted by corrupt government officials or misguided traditional leaders. Both presenters noted what Madonsela referred to as the revised Expropriation Bill’s potential to implement ‘implicit opportunities’ the Constitution already provides for land expropriation with nil compensation. In the view of both presenters, there is no need to amend section 25 of the Constitution to provide expressly for this.
In addition, Madonsela drew attention to what she believes to be the need for ‘upfront capital to realise the rights the Bill would provide’. She appears to have been referring to its implications for/under customary law, although in the absence of a copy of her submission this is not clear. However, a presentation from the Stellenbosch University’s research chair on property law provided more insight into the matter. In a similar vein – albeit in a different context – Agri Western Cape’s Louis Wessels expressed concern about the plight of a commercial farmer should property identified for expropriation with nil compensation be mortgaged. This was noting the potential loss of income associated with such a move and the cost of challenging it in court.
Wessels also referred to the financial implications of land invasions where commercial farmers cannot afford the legal costs entailed in recovering land over which they have lost control. In that regard, presenting the Stellenbosch University research chair on property law submission, Elmien du Plessis drew attention to the importance of clarifying what is meant by the term ‘abandoned property’. Speaking on behalf of the Western Cape Government, Ivan Meyer went into considerable detail on this matter. By contrast, the Land & Accountability Research Centre’s Zenane Booi highlighted the plight of farm workers and labour tenants with unregistered rights to land – and what she perceives to be the ‘lack of political will to implement laws intended to protect them’.
In that regard, Booi also noted the ‘imbalances of power’ in relationships between farmworkers/labour tenants and farm owners. Taking this a step further, Black First Land First deputy president Zanele Lwana described the Bill as one of ‘cowardice’ – leaving landless people ‘at the mercy of courts’. In her view, neither it nor the Constitution 18th Amendment Bill will accomplish anything positive in the ongoing struggle for justice and equity. The EFF’s Sam Matiase expressed similar concerns, also drawing attention to what he believes to have been mischievous intent and a fundamental error in tabling the Bill when the process of drafting legislation to amend section 25 of the Constitution was still under way.
Speaking on behalf of GOOD, Brett Herron focused on what he described as the ‘party political purposes’ ‘shamefully’ behind several ‘misinformation and fear-mongering campaigns’ among other things alleging that the Bill will ‘allow ANC officials to seize anything you own’. In her capacity as Public Works & Infrastructure Minister, GOOD leader Patricia de Lille has expressed similar views – most recently in an article published in February by the George Herald. According to Herron, the Bill has the potential to ‘bring an end to the long debate around effective land reform, fair compensation and expropriation without … or with nil compensation’. Input from Tim Dunn in a submission from ANC’s Gaby Shapiro branch, Western Cape, elaborated on this.
Dunn’s proposed amendments to the definitions of ‘property’, ‘public interest’ and ‘court’ are hinged on three principles apparently underpinning the Bill. These are that it ‘deals with the issue of expropriation of land and landed/immoveable property and not with personal property such as cars, pensions, bank accounts … (and) intellectual property such as copyright’; ‘explains that expropriation with or without compensation will be solely for the purpose of socio-economic development described as “public interest” and “public purpose” in the Bill’; and that, ‘when enacted’, its implementation ‘will require collaboration and coordination with various sister departments across all spheres of government’.
Interestingly, according to Dunn’s colleague in the ANC’s Gaby Shapiro branch, Senzeni Mphila, ‘it stands to reason that it would be wrong to empower “a person” to perform the task of expropriation’. Doing so could ‘lead to various wide-ranging legal disputes and/or … abuse of power’. Du Plessis’ submission on behalf of Stellenbosch University’s research chair on property law expanded on this – also proposing other ways of improving the Bill. Among other things, this was noting the importance of aligning it with the 2014 Property Valuation Act. In that regard, a submission from the South African Institute of Valuers drew attention to a raft of issues apparently needing to be considered.
Presentations from the National Employers Association of SA and Afrikanerbond drew attention to the perils of undermining property rights; the likelihood of what the Afrikanerbond’s Jan Bosman described as ‘economic fallout’ should the Bill be passed; and its negative implications for food security. Neither presentation elicited questions for clarity from members of the committee hosting the hearings. Surprisingly, only Booi’s submission did – and only one. At the time of writing, Parliament’s position on making written submissions available during virtual hearings was still not clear.
6 September 2021
This week is likely to see a ‘clean’ version of the second draft Constitution 18th Amendment Bill tabled in the National Assembly – the ad hoc committee responsible for preparing the proposed new piece of legislation having met on Friday to adopt it as planned, notes Pam Saxby. Since none of the opposition parties represented in the committee supports the Bill for one reason or another, it was put to the vote and adopted by ANC representatives at the meeting, who were in the majority. The committee is expected to meet on Wednesday to consider and adopt the report required to accompany the Bill when tabled.
As has been widely reported, any legislation seeking to amend the Constitution requires the support of two-thirds of the 400-member House to be passed. With 230 seats, the ANC will need the support of 37 opposition party MPs if a motion in favour of the Bill is to be carried. When the committee met on 16 July, EFF deputy president Floyd Shivambu once again made it abundantly clear that his party was ‘fundamentally opposed’ to the contents of its second draft. This followed several weeks of bilateral meetings between high-ranking members of the ANC and EFF, when every effort appears to have been made to find a workable compromise. The EFF then withdrew from the process, the second draft was released for public comment and, last week, ANC representatives in the committee agreed that – in the light of written submissions received – no substantive changes were necessary.
As Legalbrief Today has already reported, the ‘clean’ second draft features a slightly revised preamble, the final paragraph of which now reads, ‘such an amendment will further ensure equitable access to land and will further empower the majority of South Africans to be participants in ownership, food security, agricultural and other land reform programmes’. No change has been made to sub-section 25(7), leaving the 19 June 1913 cut-off date as it is. Neither does the adopted Bill refer expressly to communal land since this is already owned by the state.
During Wednesday’s meeting, the ANC’s Vusumuzi Xaba articulated his party’s position on the role of the courts, improvements to land and state custodianship, which is that:
Enabling national legislation will prescribe the circumstances in which a court will determine when land may be expropriated with nil compensation.
The list of circumstances to be considered under sub-section 25(3) of the Constitution as it now stands will continue to inform the process of determining what compensation should be paid for any improvements to land.
State custodianship will be a transitional measure used to facilitate access to land by people whose needs can be met through forms of tenure not requiring them to hold title deeds.
Presumably, the National Assembly Public Works & Infrastructure Committee’s clause-by-clause deliberations on the revised Expropriation Bill (scheduled for 15 and 17 September) and plans for the adoption of a report on the Bill five days later have now been postponed.
It is not clear if the committee will be briefed by Department of Public Works & Infrastructure officials on the possible implications of input received during the public participation process. A departmental briefing is normal procedure after a committee has hosted public hearings.
AGAINST THAT BACKDROP, the entire parliamentary process to date is summarised in the backdated reports below:
2 September 2021
No substantive changes will be made to the second draft Constitution 18th Amendment Bill released in June for comment, the preamble of which will nevertheless be 'cleaned up' before the Bill is considered clause-by-clause tomorrow and adopted – albeit by majority vote unless a change of heart is experienced by one or more opposition parties, which seems unlikely. This, reports Pam Saxby, was the outcome of yesterday’s meeting of the National Assembly ad hoc committee responsible for preparing legislation to amend section 25 of the Constitution to expressly provide for expropriation with nil compensation for land reform purposes when deemed just and equitable. As a result, no further public consultation will be necessary. No EFF representative was present, as was the case when the committee met last week.
The revised final paragraph of the Bill’s preamble will read, ‘such an amendment will further ensure equitable access to land and will further empower the majority of South Africans to be participants in ownership, food security, agricultural and other land reform programmes’ – removing a reference to ‘productive’. No change will be made to sub-section 25(7), leaving the 19 June 1913 cut-off date as it is. Neither will the adopted Bill refer expressly to communal land since this is already owned by the state.
Regarding concerns that the Bill’s second draft ousts the courts from any role in determining when expropriation for nil compensation would be justifiable, parliamentary legal adviser Charmaine van der Merwe refuted this argument – explaining that enabling national legislation will prescribe the circumstances in which a court will be required to make the final decision. On the issue of improvements to property, the ruling party’s position is that, since sub-section 25(3) as it now stands will continue to inform the evaluation process, ‘some form of compensation’ will be due where land identified for expropriation has been developed. Regarding state custodianship, Van der Merwe explained that this automatically implies land held in trust as a transitional measure and not ‘in perpetuity’. In Motshekga’s view, widespread alarm in certain quarters about these matters may have been fuelled by a ‘lack of understanding’ among stakeholders not necessarily ‘familiar with the law’.
Like his DA and ACDP counterparts in the committee, FF Plus representative Corné Mulder confirmed his party’s opposition to the Bill. He nevertheless endorsed what committee chair Mathole Motshekga referred to as the ‘procedural correctness’ of the process followed to date, as articulated by the ANC’s Vusumuzi Xaba. This does tend to suggest that concerns repeatedly expressed this year by the DA’s Annelie Lotriet were either unfounded or have since been addressed.
31 August 2021
Provincial public hearings on the revised Expropriation Bill ended on Sunday in Bethlehem. According to a National Assembly Public Works & Infrastructure Committee media statement confirming this yesterday, throughout the nationwide public participation process commercial farmers have ‘highlighted the risk’ they believe the Bill poses to SA’s ‘economic future’. Meanwhile, notes Pam Saxby, emerging farmers have repeatedly called for access to land without which they believe they are ‘unable to develop into fully-fledged commercial farmers’. In that regard, the statement tends to suggest that most emerging farmers are ‘forced to share small (plots) of communal land’. ‘The Khoi and San communities have been calling for land in ‘recognition’ of culture-specific socio-economic developmental imperatives; and women have drawn attention to their need for land for ‘purposes that include … feeding … their children’. Interestingly, the statement makes no mention of a widespread perception that the Bill will ‘ensure’ that land is ‘redistributed’ and ‘returned to those … (who) suffered under successive land dispossessions … (during) colonialism and apartheid’ (as Legalbrief Today has regularly reported).
A more complex picture emerged from the committee’s earlier statements – especially those on hearings in the Free State (Mangaung, Welkom, and Bethlehem) and the last round of hearings in the Northern Cape (Kimberley). Throughout this leg of the process, the Bill’s critics drew attention to concerns about its potential to undermine land values and property rights (including ‘pensions, copyright and shares’); impact negatively on ‘orderly agricultural development’ and food security; and discourage investment. They also spoke of a perceived failure on government’s part to ‘empower beneficiaries with the skills and post-redistribution support necessary to ensure success’; concerns about the implications of a ‘title deeds backlog’ (believed to be evidence of ‘a ploy to ensure state custodianship of property’); and doubts about ‘the state’s ability to absorb debt taken by property owners, especially in the context of ... increasing unemployment and (the) shrinking tax base’.
‘Stakeholders and individuals’ whose written submissions on the Bill indicated an interest in making oral presentations will be given an opportunity to do so, according to yesterday’s committee statement. But will their more substantive submissions be made available during virtual parliamentary hearings on the Bill? During recent hearings on the controversial 2017 Copyright Amendment Bill, access to written submissions was withheld for more than two weeks. When the National Assembly Committee on Trade & Industry finally made them available, it blamed the delay on requirements under the 2000 Promotion of Access to Information Act – nevertheless apparently confusing them with obligations under the 2013 Protection of Personal Information Act by using its acronym. Yet, before the Covid-19 State of Disaster, members of the public and journalists attending parliamentary hearings had access to piles of hard copies of every submission made. If compliance with the Protection of Personal Information Act has made this impossible without the consent of each author, Parliament would be well advised to proactively request it when calling for public input. Presumably, it has a constitutional obligation to facilitate access to such input by ordinary South Africans – in which case it appears to have reneged on that duty for some time. The tendency now is for PowerPoint presentations to be circulated to journalists in Parliament’s WhatsApp group and for everyone else to be left in the dark.
30 August 2021
The National Assembly ad hoc committee responsible for preparing the Constitution 18th Amendment Bill has several options for dealing with the latest set of proposals for changing its text. They are based on a report summarising public input on the second draft Bill. Discussions on the preferred option and its implications (if any) for the committee’s commitment to a comprehensive public participation process are expected to begin on Wednesday afternoon. They will be informed by fresh mandates from each party represented in the committee, reports Pam Saxby.
This was the outcome of Friday’s committee meeting, when DA and FF Plus representatives once again expressed concern about perceived irregularities in the process of identifying key issues raised in the most recent batch of written submissions and arriving at the amendments now being proposed. This notwithstanding, following Friday’s briefing on the report there was general agreement that its contents are, in fact, a ‘fair reflection’ of the input received. Meanwhile, the minutes of Thursday’s sitting of the House have confirmed that the committee now has until 10 September to complete its work.
Against that backdrop, this week the committee will consider whether to:
adopt the second draft Bill as it stands, or
change its text to reflect proposals in the revised draft deemed not to be material (in which case, no further public consultation will be necessary), or
change its text to reflect proposals in the revised draft deemed to be material (in which case, the House may need to be approached for permission to amend the Constitution beyond the scope of the 2019 draft Bill and the revised draft may then need to be advertised for comment).
According to parliamentary legal adviser Charmaine van der Merwe, material amendments proposed in the revised draft and requiring further public consultation before being adopted seek to exclude communal land from expropriation where compensation is nil; and to change the prevailing 19 June 1913 cut-off date for restitution or equitable redress in respect of property dispossession. Should the committee wish to change the cut-off date, it will need to approach the House for permission. Interestingly, the revised draft no longer provides for expropriation for nil compensation where improvements have been made to the land concerned; and clarifies the role of the courts in determining when expropriation for nil compensation would be justifiable.
Should the committee decide to call for public input on proposals for further material amendments, it will be obliged to send the revised draft Bill to the National House of Traditional & Khoi-San Leaders – which, according to Van der Merwe, is allowed 60 days to respond. This may explain a reference to 5 November in one version of an order paper for the National Assembly sitting at which the life of the committee was extended. At the time of writing, Parliament had yet to publish the version reflecting 10 September as the new date by which the committee should have completed its work.
24 August 2021
Provincial public hearings on the revised Expropriation Bill having resumed in the Northern Cape at the weekend, proceedings once again drew attention to concerns about provisions in the Bill with the potential to threaten property rights – impacting negatively on land values. This is according to two media statements issued yesterday by the National Assembly’s Public Works & Infrastructure Committee. Many participants supporting the Bill believe it will ‘go a long way to ensure equality’. Some have nevertheless ‘called for a collaborative effort between farm owners, workers, and other stakeholders to ensure that the agricultural sector remains stable and sustainable’, reports Pam Saxby.
During hearings in Khai Ma municipality, the Bill’s critics spoke of ‘the pervasive risk of corruption’ should the state be ‘entrusted’ with custodianship of SA’s ‘entire’ property portfolio. In their view, government’s ‘inability’ to distribute state land to qualifying beneficiaries has already demonstrated its ‘incapacity to act as… custodian’. Other concerns included the ‘inherent risk of disinvestment … and economic sanctions’ (with obvious implications for rising unemployment and deepening poverty); and, in the context of agricultural land expropriated for nil compensation, the state’s ‘ability … to inherit the debt … many farmers have with commercial banks’.
The committee’s media statement on hearings in David Kruiper municipality refers to a call from participants for more detail in the Bill on ‘when and how property will be expropriated’. In their view, without ‘specific’ provisions on these matters the Bill is likely to ‘impact on the willingness of financial institutions to advance loans to assist in property improvements’. Concerns were also expressed about the ‘risk to home ownership, food security and economic stability’ should the Bill be passed as it now stands – once again in the context of rising unemployment and ever-deepening poverty.
Although the proposed new piece of legislation was ‘rejected’ by most participants in both hearings, some expressed support based on a perception that the Bill will ‘ensure’ that land is ‘redistributed’ and ‘returned those … (who) suffered under successive land dispossessions … (during) colonialism and apartheid’ – including the Khoi and San nations. With that in mind, they urged government to ‘engage the financial sector’ so that sufficient ‘post-expropriation’ investment is secured to ‘ensure’ that land is used ‘productively’, and food security ‘guaranteed’. During the hearings in Khai Ma, emerging and subsistence farmers appeared to be under the impression that, once in force, the Bill will compel ‘big landowners’ to share their holdings. Its supporters also urged government to ‘speed up the release of state land’.
19 July 2021
Written submissions are sought by 13 August on a revised draft Constitution 18th Amendment Bill reflecting ANC proposals for changes to the text of section 25 with the aim of providing explicitly for expropriation with nil compensation for land reform purposes when just and equitable, reports Pam Saxby. The proposals are underpinned by ruling party commitments to accelerated land reform in the context of a ‘mixed model’ of land tenure most recently articulated in the 2019 report of the presidential advisory panel on land reform and agriculture. The revised draft Bill is not supported by the DA, EFF or FF Plus, the ANC’s proposals having been adopted by majority vote at the 9 July meeting of the National Assembly ad hoc committee concerned.
Given that it might be helpful to read the revised draft in the context of what is now envisaged for the amended section 25 in its entirety, Legalbrief Today readers are referred to a recent Policy Watch report also providing information on the process followed. According to committee chair Mathole Motshekga, in fine-tuning the Bill for tabling in Parliament by 30 August ‘there are some areas where the committee could benefit from outside legal opinions and research’. With that in mind, once all submissions on the revised draft Bill have been scrutinised, oral presentations from certain stakeholders may be requested. Motshekga made these remarks on Friday, when the committee agreed to release the revised draft for a supplementary round of public comment.
12 July 2021
ANC proposals for a revised draft Constitution 18th Amendment Bill were adopted by majority vote during Friday’s meeting of the National Assembly ad hoc committee concerned and will be published shortly with a call for written submissions within 21 days. Not supported by the DA, EFF or FF Plus, they seek to amend sub-sections 25(2)(b), 25(3), 25(4) and 25(5) of the Constitution to provide expressly for expropriation with nil compensation for land reform purposes when such a measure would be in the public interest, just and equitable, reports Legalbrief's Pam Saxby. This is noting a committee decision in May to consider section 25 in its entirety when finetuning the text of the Bill; that the draft released in December 2019 for comment was generally understood to be a ‘compromise’, intended simply to ‘kickstart’ the public participation process; and that, in terms of the National Assembly rules on committee Bills, it is not necessary to approach the House for permission to propose amendments beyond the original scope of a Bill.
Legalbrief Today reported on this decision at the time. It was informed by an opinion from parliamentary legal services and an interpretation of the committee’s mandate, which – as Legalbrief Today also reported – was clarified during a meeting on 5 June. DA representative in the committee, Annelie Lotriet, and FF Plus representative Corné Mulder have nevertheless regularly expressed concern about the process being followed and the extent to which certain procedural requirements are being ignored – at least in their view. This notwithstanding, on Friday parliamentary legal adviser Telana Halley-Starkey was asked not to share the perspectives of her office on the procedural implications of certain clauses in a document reflecting amendments proposed by the ANC, EFF, FF Plus and Al Jama-ah. Recorded in the margin, the procedural notes may nevertheless have influenced a proposal from the ANC that the revised draft Bill be published for what committee chair Mathole Motshekga referred to as ‘a supplementary public participation process’.
Against that backdrop, the revised text of section 25 on which written submissions will soon be sought is likely to be as follows (ANC amendments proposed and adopted on Friday are in red):
1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
2. Property may be expropriated only in terms of 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 where land and any improvements thereon are expropriated for purposes of land reform as contemplated in subsection (8), the amount of compensation may be nil.
3. The amount of the compensation as contemplated in subsection (2)(b), and the time and manner of any 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, including –
a. the current use of the property;
b. the history of the acquisition and use of the property;
c. the market value of the property;
d. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
e. the purpose of the expropriation.
3A. For the furtherance of land reform, national legislation must, subject to subsections (2) and (3), set out circumstances where the amount of compensation is nil.
4. For the purposes of this section
a. the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and
b. property is not limited to land.
4A. The land is the common heritage of all citizens that the state must safeguard for future generations.
5. The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.
6. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
7. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
8. No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
9. Parliament must enact the legislation referred to in subsection (6).
5 July 2021
Agreement on the wording of amendments to section 25 of the Constitution is expected to be reached at this week’s meeting of the National Assembly ad hoc committee concerned – pending public input on a new clause not featured in the 2019 draft Constitution 18th Amendment Bill, reports Pam Saxby. Proposed by the ANC in a document presented to the committee on 18 June, it seeks to amend sub-section 25(4) of the Constitution to make the state responsible for ‘safeguarding’ land ‘for future generations’, as ‘the common heritage of all citizens’. The EFF’s view is that this clause should read ‘land is a natural resource and the common heritage’ belonging to ‘the people as a whole’, ‘under the custodianship of the democratic state’. The party’s position on custodianship is spelled out in a document circulated during Friday’s committee meeting, the closing paragraphs of which reflect its latest proposals for the text of the Bill. These include the removal of a reference in sub-section 25(7) to 19 June 1913 as the date from which property dispossession by way of racially discriminatory laws or practices is deemed to have begun.
At this stage, it appears that the FF Plus is the only other party to have provided committee members and the secretariat with a document reflecting its views. Party representative in the committee, Corné Mulder, referred to the document on Friday – but at the time of writing it had yet to be made publicly available. It is still not clear if the secretariat has ever received written submissions from DA, ACDP and IFP representatives on the committee, although the DA’s Annelie Lotriet and ACDP’s Wayne Thring have already expressed their opposition to amending section 25, which they reaffirmed on Friday. In their view, the Constitution already makes adequate provision for land expropriation for nil compensation should specific circumstances prompt a court of law to require it.
Lotriet did not respond to committee chair Mathole Motshekga’s request on Friday for more insight into her party’s perspectives on the ‘financial uncertainty’ associated with amending the Constitution to expressly provide for expropriation with nil compensation for land reform purposes. It was made in the context of a broader request for a final position on the text of the Bill, in writing, from each party represented in the committee in anticipation of its next meeting. However, earlier in Friday’s proceedings Lotriet had once again stated that the DA ‘cannot support any amendment where there are more questions than answers’. She also expressed concern about the ‘diminishing powers of the courts’ implied in the ANC’s proposal; and leaving to national legislation the specific circumstances in which land expropriation for nil compensation would be deemed justifiable.
Mulder expressed similar sentiments, laying the blame for land reform failures firmly at the feet of government and prevailing policy – ‘not legal process or provisions in the Constitution’. Neither, in his view, will SA be ‘plunged into crisis’ if the Constitution is not amended to explicitly provide for expropriation with nil compensation for land reform purposes, although he did not elaborate. Mulder made his remark in the context of Motshekga’s repeated warnings of dire consequences should widespread expectations of accelerated land reform and expropriation for nil compensation remain unfulfilled.
Expressing Al Jama-ah’s support for the ANC’s position and elaborating on its own submission, party leader Ganief Hendricks drew attention to the importance of safeguarding ‘sacred endowments of property’ for charitable purposes – and a recommendation that the Constitution’s sub-section 25(9) ‘should not exclude a provision for reparations’. He appears to have been alluding to the possibility of compensation for loss of opportunity, although this was not clear. Hendricks also suggested subjecting the enabling legislation envisaged to a process requiring support from two-thirds of the House. In that regard, his party’s submission refers to a ‘sub-committee’ in which ‘all political parties are represented and subject to two-thirds majority or more’.
When the committee next meets, it will consider possibly finetuned versions of ANC and EFF proposals for the Bill’s text – along with Al Jama-ah’s proposals. Presumably, should any other party represented in Parliament choose to submit proposals for the wording of the Bill to be tabled in the House by 30 August, these, too, will be considered. Parliamentary legal services will then draft a revised Bill based on what Motshekga described as the ‘minimal’ text generally agreed to be appropriate. Should any clauses in the revised version fall outside the scope of the 2019 draft Bill, these will be advertised for public comment.
21 June 2021
The EFF is ‘fundamentally opposed’ to the ANC’s proposals for finetuning the draft Constitution 18th Amendment Bill, which were tabled during Friday’s meeting of the National Assembly ad hoc committee concerned. According to EFF deputy president Floyd Shivambu, three bilateral engagements with ruling party representatives on the committee have accomplished nothing. In that regard, Shivambu mentioned regular deferrals to their principals for positions on the issues raised – prompting his party to arrange a meeting with the ANC’s ‘top six’. Scheduled for Wednesday, notes Legalbrief's Pam Saxby, this will determine whether the EFF supports the Constitution 18th Amendment Bill eventually tabled in the House. Since people ‘are already taking back the land’, in Shivambu’s view this may be the only way forward if ‘the politicians can’t agree’.
Meanwhile, all other parties in Parliament – including those not represented in the committee – have until close of business tomorrow to respond in writing to the ANC’s revised position. Their submissions will be considered when the committee next meets, although input from the DA’s Annelie Lotriet during Friday’s proceedings left nobody in any doubt about the leading opposition’s views. Her party cannot agree to any of the amendments proposed thus far since section 25 already provides for expropriation without compensation. Lotriet also expressed concern about leaving to national legislation the circumstances in which land expropriation with nil compensation might be just and equitable – one shared by FF Plus representative Corné Mulder. She did not comment on a call from the ANC’s Patamedi Moroatshehla for a ‘workable solution’ to the land issue.
Ruling party representatives in the committee believe they have done everything reasonably possible to engage constructively with other parties on issues of disagreement. Informed by bilateral discussions with the EFF, DA, FF Plus and ACDP, the ANC has ‘moved significantly’ according to Vusumuzi Xaba. In that regard, he noted the role of the courts where agreement cannot be reached on compensation; and a proposed new sub-section 25(5) providing for state custodianship as an interim measure in facilitating access to land. The EFF’s Sinawo Tambo nevertheless described the ANC’s understanding of state custodianship as a ‘reaffirmation of the status quo’ rather than ‘a fundamental shift in policy position’. By then Shivambu had left the meeting.
Committee chair Mathole Motshekga’s repeated calls for ‘a South African solution’ to the land question appear to have fallen on deaf ears. So, too, it seems, have his references to an impending conflagration. On Friday, he warned that leaving things as they are will inevitably result in a Zimbabwe-like situation with all its attendant ‘black-on-black conflict’. This notwithstanding, Motshekga also commended Mulder for his ‘pointed questions’ and commitment to ‘constructive engagement’ following a request for clarity on the ANC’s proposed new sub-section 25(4A). It refers to land as ‘the common heritage of all citizens that must be safeguarded by the state for future generations’ – giving context to the concept of state custodianship within a hybrid ownership model.
14 June 2021
The ANC’s position on the role of the courts in determining when expropriation with nil compensation for land reform purposes would be justifiable may have been misunderstood by DA representatives in the National Assembly ad hoc committee concerned. This, notes Pam Saxby, emerged during Friday’s deliberations on ruling party and EFF proposals for changes to the draft Constitution 18th Amendment Bill, when the ANC’s Vusumuzi Xaba gave context to his party’s reasons for proposing that ‘court’ be removed entirely from sub-clause 1(c) and not included in a caveat to sub-clause 1(a). Should the proposal be adopted, it would simply confine the role of the courts to adjudicating disputes between the parties on the issue of compensation, as Legalbrief Today has already reported. In such circumstances, a court might find expropriation with nil compensation to be in the public interest. With that in mind, ANC and DA representatives in the committee may already be discussing possible options for reformulating the clauses concerned.
As Legalbrief Today has also reported, according to Xaba the ANC’s understanding of state custodianship is that – in the context of accelerated land reform – it would apply to land acquired by the state for redistribution but not yet allocated to its intended beneficiaries, as well as to communal land administered by a traditional authority. Elaborating on the issue during Friday’s meeting, Xaba reiterated his party’s position on ‘mixed’ land tenure and invited FF Plus representative in the committee, Corné Mulder, to share his party’s views on state custodianship as a transitional, temporary measure. Against that backdrop, further discussions between the two parties may already be in progress. The EFF’s Floyd Shivambu having left Friday’s meeting unannounced soon after it began – and in the absence of any other representatives from his party – it is not clear how these developments will affect ongoing negotiations between the ANC and EFF on sticking points in their respective proposals. As committee chair Mathole Motshekga noted, the EFF is ‘an important player in the exercise’.
While the DA’s Annelie Lotriet may have misunderstood ANC proposals on the role of the courts and be willing to discuss the matter further, her party’s position on expropriation without/for nil compensation remains steadfast. In the DA’s view, since section 25 already makes implicit provision for such a measure no amendments are necessary. Regarding state custodianship, given the ‘millions of hectares’ of land already held by the state, Lotriet believes government should ‘get its act together instead of using the Constitution as a scapegoat to fix the problem’. When she asked for ‘clarity’ on the implications of land expropriation with nil compensation for mortgages and the financial institutions concerned, ANC representatives in the committee reminded her that this would be ‘up to the courts’. The jovial remarks accompanying their observation tended to suggest it had been made somewhat tongue-in-cheek.
On matters of process and procedure, Lotriet once again insisted that the committee is exceeding its mandate by considering section 25 in its entirety. It was in this context that Motshekga reaffirmed a position taken two weeks earlier – that ‘Parliament will be the final arbiter’. In his view, neither should the ‘alleged failure of the state’ in its efforts to effectively implement land reform policies be allowed to distract the committee from its work. The ‘people of SA’ having mandated Parliament to proceed with amendments to section 25 of the Constitution to provide expressly for land expropriation without compensation when just and equitable, the committee will continue with its deliberations as he has already ruled it should. With that in mind, Motshekga instructed the ANC’s Mina Lesoma to brief EFF representatives in the committee on the latest developments and to continue facilitating bilateral discussions with them and any other party willing to engage on specific issues. This is on the understanding that, when the committee next meets, all parties involved in these discussions will be expected to report on progress made in identifying areas of agreement.
8 June 2021
The process of amending section 25 of the Constitution should have been ‘concluded’ before input was sought on the revised Expropriation Bill, which as enabling legislation can only ‘speak directly’ to the amendments once they have been made. This appears to have been the gist of comments from some of the Bill’s critics during public hearings held recently in Gqeberha/Port Elizabeth, according to yesterday’s media statement from the National Assembly Committee on Public Works & Infrastructure, reports Pam Saxby. Concerns were also expressed about the ‘policy uncertainty’ perceived to be implicit in the Bill’s ‘unclear’ definition of the type of property likely to be targeted for expropriation, and the extent to which this could discourage investment. A statement on hearings in Joe Gqabi district points to similar views having been expressed by ‘dissenting’ participants – although only the press release on hearings in Alfred Nzo district expressly refers to ‘expropriation with nil compensation’ and ‘dissatisfaction’ with the Bill’s sub-clause 12(3). According to the statement, this group of critics nevertheless ‘recognised and acknowledged the need for expropriation in the public interest, but with just and equitable compensation’.
The majority view throughout the Eastern Cape leg of the public participation process appears to have been support for expropriation as a ‘tool’ for reversing past injustices by ‘ensuring equitable access to … much needed land’. In that context, one statement notes input on ‘the dire need for land for infrastructure development’. All three statements nevertheless tend to suggest that some prospective recipients of expropriated land are sceptical about government’s capacity to distribute it fairly to the benefit of ‘the majority of South Africans’. Possibly related to this, references are made to the ‘non-issuance of title deeds’ and the slow pace of settling land claims. Input on the ‘lack of support for emerging farmers’ may have come from participants concerned that the Bill’s ‘good intentions’ will be undermined if expropriation does not result in ‘increased production, food security (and) job creation’. Traditional leaders in the province appear to have expressed broad support for the Bill, which some expect to reinstate their role as the ‘custodians’ of land confiscated during colonial times. While the committee intends proceeding with hearings in the Western Cape, those scheduled for the Northern Cape and Free State have been postponed given spiralling Covid-19 infection rates in both provinces.
7 June 2021
The National Assembly ad hoc committee established on 25 July 2019 to ‘initiate and introduce legislation amending section 25 of the Constitution’ – having most recently ‘ceased to exist’ on 31 May ‘before it could complete and report on its mandate’ – was formally re-established on Friday ‘with the same composition, mandate and powers as its predecessor’. This is confirmed in minutes of the proceedings concerned, which refer to the minutes of proceedings on 25 July 2019 to avoid any further confusion about the committee’s mandate, reports Pam Saxby. In keeping with a recommendation in the Constitutional Review Committee report adopted by the House and the NCOP on 4 and 5 December 2018 respectively, the committee is required to amend section 25 of the Constitution ‘to make explicit that which is implicit in the Constitution, with regards to (the) 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 programmes’.
It is still not clear if, before it ‘ceased to exist’, the now re-established committee did, as agreed the previous week, ‘err on the side of caution’ (as recommended in the final paragraph of advice received from Parliament’s Constitutional & Legal Services Office) and approach the House for permission to extend the scope of amendments to section 25 beyond those proposed in the 2019 draft Constitution 18th Amendment Bill. According to the advice received, the National Assembly rules on committee Bills nevertheless do ‘expressly provide’ that the committee responsible for preparing a Bill may ‘adjust’ its contents after a draft has been released for public comment and before the final version is introduced. Regarding proposals that had already emerged from bilateral discussions between the ANC and EFF when the since re-established committee ‘ceased to exist’, this process is still in progress. It seems unlikely, therefore, that a call for public comment will be made at this stage. Presumably, the same applies to requesting further input from the provincial legislatures.
The document tabled at the committee’s 31 May meeting and since widely reported in the media was prepared by parliamentary legal adviser Charmaine van der Merwe at committee chair Mathole Motshekga’s request, with a view to presenting the ‘constitutional options’ available for accommodating proposals received from the ANC and EFF three days earlier, as Legalbrief Today reported at the time. The drafting notes in green make that clear. It is a working document, not a revised draft Bill. Should sufficient consensus be reached between the two parties on the contents of a revised draft, these will be tabled at the committee’s next meeting for discussion by members representing any opposition political party still willing to participate in the deliberations. It is at this point that a call for written submissions is likely to be made if the advice provided by Parliament’s Constitutional & Legal Services Office is heeded. Given the number of Bills sent for presidential signature by the previous Parliament and returned because of inadequate public consultation, this seems likely.
For the same reasons, it seems likely that hearings will then be held so that stakeholders wishing to elaborate on their submissions may do so. Some committee members simply find it annoying being reminded of parliamentary rules and procedure by people from certain opposition parties or demographic groups. This notwithstanding, as ANC and EFF representatives on the committee have repeatedly stated, the 2018 Constitutional Review Committee hearings and recent provincial public participation process left nobody in any doubt about the views of ordinary South Africans on land expropriation for nil compensation. As a result, more hearings in the provinces seem unlikely, although the legislatures themselves will probably be given an opportunity to comment. Against that backdrop, with three more months to complete its work it could be some time before the committee announces its next step.
4 June 2021
The National Assembly ad hoc committee responsible for preparing legislation amending section 25 of the Constitution to expressly provide for land expropriation with nil compensation now has until the ‘end of August’ to complete its work (SABC News). As agreed on Monday, the committee requested a 30-day extension but was apparently advised that, with the long winter recess in mind – it may need more time, notes Pam Saxby. There appear to be no plans for a special sitting. With Parliament’s third term this year expected to begin on 17 August, according to House chair Cedrick Frolick the committee report and Constitution 18th Amendment Bill will only be considered later that month. At the time of writing, neither the committee nor the House had issued a statement confirming the new arrangements. It is still not clear when the committee will call for public comment on amendments proposed beyond the scope of the 2019 draft Bill.
1 June 2021
A Constitution 18th Amendment Bill explicitly providing for expropriation with nil compensation for land reform purposes is likely to be the focus of a special sitting of the House during its long winter recess – but was not tabled yesterday as expected, reports Legalbrief's Pam Saxby. Instead, the ad hoc committee responsible for preparing it agreed yesterday to approach the House for permission to amend section 25 beyond the scope of the 2019 draft Bill released for comment; and a 30-day extension to the 31 May deadline for completing its work. This has since been confirmed in a media statement nevertheless not mentioning the likelihood of changes beyond the scope of the original Bill or a decision to include in the request permission to immediately call for public input on several of the new amendments envisaged. Informed by Friday’s proposals from the EFF and two from the ANC, these have yet to be agreed between the two parties. They are nevertheless outlined as options in a draft revised Bill prepared by parliamentary legal services and altered slightly during yesterday’s meeting. Both ANC proposals seek to remove the courts from playing a role in determining when nil compensation would be justifiable unless no agreement can be reached with the parties affected.
Should the House accede to the committee’s request – which its chair Mathole Motshekga is confident will be the case – minor changes made yesterday to the revised draft are likely to be reflected in a call for further comment, which is expected to be published this week. According to the EFF’s Floyd Shivambu – who originally proposed that an extension be requested – ‘there is scope’ for his party and the ANC to ‘find each other’ on three issues flagged during yesterday’s meeting. These are whether ‘nil’ or ‘without’ compensation is the most appropriate wording; what is meant by state custodianship; and the cut-off date for restitution, which as things now stand is 19 June 1913 (a provision in sub-section 25(7) the EF would like to see removed). In that context, the ANC’s Vusumuzi Xaba noted his party’s commitment to ‘mixed land ownership’, drawing a distinction between land redistribution and land restitution. The ANC’s position is that the term ‘state custodianship’ applies to land acquired by the state for redistribution but not yet allocated to its intended beneficiaries – and to communal land administered by a traditional authority. According to Xaba, his party would like to see this made more ‘explicit’.
It is not clear if any other parties represented in the committee have participated in bilateral discussions between themselves or with the ANC and EFF. Nevertheless, Motshekga insisted that a memorandum requesting permission to propose additional amendments and a 30-day extension should refer not only to issues on which these two parties have yet to reach sufficient consensus but also to ‘any other matter’ a party may wish to raise. Express provision in the Constitution for land expropriation with nil compensation being an urgent matter ‘of grievous national interest’, the legislative process cannot be allowed to ‘collapse’ because ‘chances’ were taken – a possible reference to the importance of adhering to the National Assembly rules. Motshekga nevertheless warned that – given spiralling land invasions and their associated ‘conflict’ – if the committee’s work is perceived to ‘drag on’ unnecessarily ‘we may lose control over the people’. Although he did not elaborate, Motshekga made this observation noting the pivotal role of a resolution to the ‘land question’ in successfully implementing the economic reconstruction and recovery plan announced by President Cyril Ramaphosa in October 2020.
31 May 2021
Despite the looming 31 May deadline for tabling legislation to provide expressly for land expropriation with nil compensation in section 25 of the Constitution, the National Assembly ad hoc committee responsible did not meet several times last week as anticipated but only once, on Friday.. According to a media statement issued on the outcome of its 21 May meeting, committee chair Mathole Motshekga intended approaching ‘Parliament’s political management’ to request ‘additional sessions’. For the past two months these have generally been held on Fridays and tended to be announced at relatively short notice. The committee is expected to meet at 13:00 today, reports Pam Saxby.
The change in plan may have been prompted by the outcome of bilateral meetings between ANC and EFF representatives in the committee, which were expected to have been concluded during the weekend. ‘Aspersions made against the integrity’ of parliamentary legal services and ‘allegations of biasness’ may also have affected the process. During last week’s meeting, the EFF’s Floyd Shivambu once again raised concerns about their role in determining how the committee may proceed and the reach of its mandate, as Legalbrief Today has already reported. A News24 article on his remarks drew attention to allegations of ‘infiltration’ not only of the parliamentary legal services office but also the broader ‘administration’.
Shivambu was reacting to a legal opinion on the possible implications of considering section 25 in its entirety before finalising the Bill. Prepared by parliamentary legal services, the document concerned was expected to throw more light on the committee’s mandate, which DA and FF Plus representatives believe is being exceeded by the process now being followed. Apparently circulated well in advance of the meeting, at the time Shivambu said he had neither received nor read the opinion – which was to have been presented towards the end of proceedings but which Motshekga decided should ‘stand over’ pending ‘advice’ on the best way forward.
Given that National Assembly sub-rule 299(2)(b) requires ‘at least two thirds’ of the House to vote in favour of the Bill eventually tabled if it is to be adopted, last weekend’s bilateral meetings and any since held assume considerable significance. The ruling party no longer has sufficient seats to guarantee that the Bill is passed when read for the first time in the House and debated. As a result, ensuring that the preferred wording of ANC representatives in the committee holds sway when the proposed new statute is finalised for formal introduction in the House is not the real issue. Securing the EFF’s support is. Equally important is a watertight process that withstands legal scrutiny from every possible angle.
25 May 2021
People living on Ingonyama Trust land have apparently expressed differing views on the implications of the revised Expropriation Bill for its ownership, notes Legalbrief's Pam Saxby. During Friday’s public hearings in Ulundi, ‘some’ cautioned against ‘tampering’ with prevailing arrangements, while ‘others argued that … the amakhosi and izinduna … (should) own and manage … (the land) on behalf of their subjects’. This is according to a National Assembly Public Works & Infrastructure Committee media statement nevertheless tending to point to in-principle ‘support’ for the Bill. Attention was once again drawn to the ‘severe’ living condition on farms; the importance of returning the land to ‘those who work it’; and related skills development.
In keeping with a trend throughout the public participation process, input during hearings in the districts of Umzinyathi, King Cetshwayo and eThekwini illustrated the extent to which land expropriation with nil compensation is expected to provide widespread redress for past injustices; and facilitate access to long-awaited facilities and services, as well as poverty-alleviating employment opportunities. The issue of ‘access to the graves of … ancestors on … farms’ was also raised, along with concerns about sections in the Bill making opposition to expropriation ‘difficult’.
24 May 2021
Proposals in the draft Constitution 18th Amendment Bill intended to expressly provide for expropriation with nil compensation for land reform purposes could well be revised, informed by the outcome of weekend discussions between ANC and EFF representatives on the National Assembly ad hoc committee concerned, writes Legalbrief's Pam Saxby. These will conclude bilateral negotiations apparently already under way. Likely to focus on differing interpretations of the term ‘state custodianship’, they may have implications for sub-section 25(1) in the context of an EFF proposal tabled on 14 May. This is noting that, during Friday’s meeting, the committee considered section 25 in its entirety with the aim of identifying any sub-sections other parties represented in the committee believe may require further attention.
The ANC’s Vusumuzi Xaba is concerned about what he described as the ‘overly broad’ definition of ‘property’ in the EFF proposal and the possibility that it may fly in the face of existing provisions in terms of which ‘no law may permit (the) arbitrary deprivation of property’. In that regard, he referred to post-1994 achievements in restoring the ‘dignity’ of black South Africans by ‘upgrading’ the ‘tenure’ of residents occupying apartheid-era township properties to which they now hold title deeds. Assuring the committee that his party’s proposal is not intended to imply that ‘residential land’ should also be ‘taken’, the EFF’s Nyiko Shivambu nevertheless questioned whether owning a ‘matchbox’ or any other type of house in an apartheid-era township bestows ‘dignity’ on its occupants to any meaningful degree.
Friday’s proceedings tended to suggest that the ANC and EFF are the only parties represented in the committee to have embarked on bilateral discussions. This despite the ANC’s attempt (apparently by e-mail) to facilitate engagements across party lines, in keeping with a decision made on 14 May that this would be the most appropriate way forward. No differences arose between the two parties following Xaba’s input on sub-sections 25(4) to 25(9), regarding which the ANC had no amendments envisaged at the time – nevertheless being ‘open to persuasion’. Possibly because amendments to sub-sections 25(2) and 25(3) are already proposed in the draft Bill, these were not discussed. Xaba nevertheless did draw attention to the importance of sub-section 25(8), which – in the ANC’s view – reflects ‘the character of the transformative nature of the entire section 25’ given its cross-references to sub-section 36(1) (limitation of rights). In full agreement with the ANC’s position on this sub-section, FF Plus MP Corné Mulder unpacked its implications lest anyone misunderstand their relevance – to which Xaba replied, ‘We are one’, eliciting several semi-jocular remarks from other members.
Interestingly, the DA’s Annelie Lotriet chose to participate in Friday’s proceedings despite having articulated her party’s opposition to a process she believes exceeds the committee’s mandate by considering section 25 in its entirety. According to Lotriet, the DA will oppose any amendments to sub-section 25(1) and is unequivocally against custodianship by the state. Her other input during the meeting focused on the merits of hearing the views of parliamentary legal advisers on the process itself. In Lotriet’s view, these should have been presented before the committee proceeded with deliberations on each sub-section. It was in this context that Shivambu reiterated apparently longstanding concerns about the role of parliamentary legal services in determining how the committee may proceed and the reach of its mandate. Against that backdrop, noting his ‘duty’ as chair to ‘defend the integrity of Parliament’s legal staff’ against Shivambu’s allegations, Motshekga ruled that legal advice on the possible ramifications of considering the whole of section 25 be heard only after Shivambu’s remarks have been discussed with House chair Cedric Frolick.
17 May 2021
Section 25 of the Constitution will be considered in its entirety as members of the National Assembly ad hoc committee concerned finalise legislation to provide expressly for expropriation with nil compensation when just and equitable for purposes of land reform. Legalbrief's Pam Saxby notes committee chair Mathole Motshekga made this ruling during Friday’s refreshingly convivial meeting, informed by persuasive arguments from the EFF’s Mbuyiseni Ndlozi and Nyiko Shivambu, and to a large extent endorsed by the ANC’s Vusumuzi Xaba. In the view of DA representatives on the committee, Annelie Lotriet and Noko Masipa – supported and clearly articulated by FF Plus representative Corné Mulder – Motshekga’s ruling will allow members to deliberate on issues that could result in amendments to section 25 far beyond what they understand to be the committee’s original mandate. On that basis, DA members refused to participate in the process other than where it reverts to proposals in the draft Constitution 18th Amendment Bill.
The wording used by Lotriet in reminding members of the committee’s mandate appears to have been taken from a recommendation in the 2018 Constitutional Review Committee report, which was adopted by the House on 22 November 2018. In that report, it was proposed ‘that Section 25 of the Constitution … be amended to make explicit that which is implicit in the Constitution, with regards to (the) expropriation of land without compensation as a legitimate option for land reform’. However, as Ndlozi noted, the recommendation continued with the caveat, ‘so as to address … 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 programmes’.
Taking this into consideration – and noting advice from the secretariat’s Vhonani Ramaano regarding National Assembly Rule 274(2) – Motshekga assured members that, in proceeding with deliberations on section 25 in its entirety, the committee’s ‘starting point’ would nevertheless remain the draft Bill as published. Rule 274(2) provides for the publication of draft legislation that may be ‘any version’ of the Bill tabled once finalised. While this appears to have confirmed that the process will not, in fact, be compromised by deliberations on matters beyond the scope of what Motshekga described as a ‘compromise’ draft Bill designed to ‘kickstart’ the public participation process, he asked for clarity on the broader implications of the rule in anticipation of next week’s meeting. Meanwhile, since only the EFF has tabled written proposals on the precise wording of an amended section 25, other political parties represented on the committee have been asked to do so. In addition, it has been suggested that ‘bilaterals’ be held to discuss and resolve any differences on the wording of sub-sections 25(1) to (9) where parties are in broad agreement on the principles concerned.
10 May 2021
The draft Constitution 18th Amendment Bill was released in 2018 for comment as a ‘compromise Bill’ to ‘kickstart’ the public participation process. National Assembly ad hoc committee chair Mathole Motshekga made this observation during Friday’s meeting, when he assured members that, in finalising the Bill for tabling in the House by the end of this month, the committee will not be ‘confined’ to considering what was published at the time. Legalbrief's Pam Saxby notes he was responding to concerns expressed by the EFF’s Floyd Shivambu about the procedures to be followed should the committee propose amendments beyond the scope of its original mandate – among other things requiring permission from the House and further opportunities for public comment. Shivambu also expressed strong reservations about the role of parliamentary legal services in the process given the committee’s ‘political mandate’.
These issues arose in the context of a presentation from parliamentary legal adviser Charmaine van der Merwe on submissions made by the Departments of Agriculture, Land Reform & Rural Development, Public Works & Infrastructure, and Mineral Resources & Energy. In Van der Merwe’s view, the procedures concerned will need to be followed should the committee agree that the Bill specify that courts be ‘the only decision-maker in respect of nil compensation’; include a definition of ‘land reform’; and provide for expropriation with nil compensation in respect of ‘all property’. The same will apply should the committee agree that expropriation with nil compensation may take place in the absence of national legislation prescribing the circumstances in which this would be just and equitable.
In anticipation of next week’s deliberations (by which time each political party represented on the committee is expected to have formulated a position on the Bill’s contents), members have been asked to revisit the process followed in arriving at the committee’s mandate and its precise wording. This was noting Shivambu’s interpretation of the ‘political mandate’ underpinning that process, based on his party’s February 2018 proposal – which the ANC’s Vusumuzi Xaba said had been ‘substantively amended’ before being adopted by the House. As Legalbrief Today has regularly reported, there appears to be no public record of the amended version. Neither is it clear from parliamentary papers when the House formally agreed on the wording of the committee’s mandate – although the decision to establish an ad hoc committee was announced in a media statement focusing on it powers.
28 April 2021
A recently concluded North West province leg of public hearings on the revised Expropriation Bill appears to have raised concerns in parliamentary circles that some stakeholders may have ‘confused’ this process with one conducted last year on the draft Constitution 18th Amendment Bill, notes Pam Saxby. Among other things, a 24 April statement issued by the National Assembly’s Public Works & Infrastructure Committee noted that, ‘while the processes are interrelated, they are different’. Monday’s statement was used to ‘reiterate’ the purpose of ongoing public hearings on the revised Expropriation Bill – which is not meant to ‘distract’ attention from the Constitution section 25 process. According to committee chair Nolitha Ntobongwana, ‘both processes are important and necessary in their parallel ways’.
These concerns may have been prompted by claims that the Bill ‘diminishes’ the ‘overarching process’ of amending section 25 of the Constitution to provide for land expropriation without compensation – and that it is ‘unjustified’ in that context. This notwithstanding, most participants apparently expressed confidence in the potential for improved access to land to address ‘deepening’ poverty and unemployment by boosting entrepreneurial spirit and increasing opportunities for skills and economic development, especially among the youth. Some, however, were sceptical about government’s commitment to releasing the amount of land necessary for black South Africans to move from subsistence, small-scale farming to large-scale, commercial agricultural operations. Possibly related to this, attention was drawn to the need for ‘agricultural support’. According to a media statement, during hearings held in Rustenburg ‘traditional leaders argued that custodianship of the land belongs to them on behalf of their people’ – in contrast to what appears to have been a more general view that the custodianship of ‘land for the people’ is best vested in the state.
As has been a tendency since the hearings began, many participants appear to have used them to highlight the ‘horrendous treatment of farmworkers’ in some areas, along with a host of grievances unrelated to the Bill, including poor service delivery. Views expressed in opposition to the Bill apparently focused on perceptions of its negative implications for home ownership, food security, foreign direct investment and economic stability. In that regard, there are concerns that it will ‘inevitably entrench a process of expropriation without judicial oversight’ and make South Africans ‘lifelong tenants’.
20 April 2021
Expectations that the revised Expropriation Bill will be used to ‘rescue’ farm dwellers and workers from ‘abuse by ruthless landowners’ came to the fore on Sunday during public hearings on the Bill in Ermelo, notes Pam Saxby. According to yesterday’s media statement from the National Assembly Committee on Public Works & Infrastructure, proceedings were ‘dominated’ by ‘claims of ill-treatment’ and complaints about the ‘severe living conditions’ on farms in the area. While the statement confirms that ‘views and submissions’ unrelated to the Bill will be referred to parliamentary committees best placed to deal with them appropriately, it nevertheless does point to possible shortcomings in government communications on the Bill’s purpose.
The same could be said of statements issued last year on the draft Constitution 18th Amendment Bill public participation process, as Legalbrief Today has regularly reported. According to a summary of input received during provincial hearings on the draft Bill, ‘most’ participants expected their focus to be on ‘implementation’. It may be in that context that pages 79 and 80 of a consolidated report on the process list a raft of issues unrelated to the proposed new piece of legislation, including the plight of farmworkers. At the time, many South Africans appear to have been under the impression that hearings held during 2018 had already dealt with the matter and that the Constitution had since been amended – paving the way for land redistribution on a grand scale.
In October 2020 when the revised Expropriation Bill was tabled in Parliament, the inter-ministerial committee on land reform issued a press release among other things noting that the ‘expropriation of property with nil compensation is not a silver bullet … but one acquisition mechanism that in appropriate cases will enable land reform and redress’. It remains unclear what, if anything, has been done to communicate this message in other languages by way of media platforms accessible to grassroots communities.
19 April 2021
A final report on the draft Constitution 18th Amendment Bill public participation process was adopted on Friday by the National Assembly ad hoc committee concerned. Members will use it as a resource during deliberations on any changes to the wording of proposed amendments to section 25 of the Constitution, which will seek to provide expressly for expropriation for nil compensation for land reform purposes when deemed justifiable and equitable, reports Pam Saxby. In anticipation of tabling the Bill in the National Assembly, deliberations are expected to begin on 5 May. When the process to be followed was last discussed in any detail, it was anticipated that proceedings would open with proposals from Parliament’s legal advisers on possible improvements. This was noting concerns raised in some oral and written submissions, as Legalbrief Today reported at the time. According to a committee media statement issued on Friday, 21 May has been earmarked for completing this work – although the most recent extension granted to the committee referred to 31 May as the new deadline.
Meanwhile, provincial public hearings on the revised Expropriation Bill are continuing as planned. However, although the National Assembly’s Public Works & Infrastructure Committee has issued regular media statements on the process, Thursday’s was the first to include any information on input received from attendees. According to the statement, during last week’s hearings in Bushbuckridge some participants questioned the wisdom of proceeding before Parliament has ‘concluded amending section 25 of the Constitution to allow for (the) expropriation of land without compensation’. It is not clear from the statement if there were ‘mixed feelings’ about this, the contents of the Bill itself or both. The Mpumalanga province leg of the public participation process was scheduled to end yesterday.
9 April 2021
The separate draft Constitution 18th Amendment Bill and revised Expropriation Bill parliamentary processes are ‘complementary’, ‘not mutually exclusive’, and Parliament will determine their outcomes. This, notes Legalbrief's Pam Saxby, was the gist of Friday’s response from Public Works & Infrastructure Minister Patricia de Lille to concerns that the revised Expropriation Bill may have been introduced prematurely. She was presenting her department’s oral submission on the draft Constitution 18th Amendment Bill to members of the ad hoc committee responsible for preparing it – and it was the EFF’s Floyd Shivambu who raised the issue. Interestingly, his reservations about the revised Expropriation Bill process and its implications for the work of the ad hoc committee were endorsed by FF Plus representative in the committee Corné Mulder, albeit without any explanation.
However, as Legalbrief Today has already reported, when the committee issued a media statement on the matter it did so in the context of last month’s parallel oral submissions on the two proposed new pieces of legislation. At the time, members appeared to be of the view that, in conducting public hearings on the revised Expropriation Bill – which includes a clause proposing the circumstances in which land expropriation for nil compensation might be deemed just and equitable – the National Assembly’s Public Works & Infrastructure Committee may have ‘put the cart before the horse’. This was noting that the ad hoc committee has yet to consider the merits or otherwise of locating a list of these circumstances in the amendment to section 25 of the Constitution.
Drawing a distinction between the draft Constitution 18th Amendment Bill as framework legislation and the revised Expropriation Bill as a general law of application, Minister De Lille nevertheless avoided expressing a view on the list’s most appropriate location – and since neither Shivambu nor Mulder questioned her further on the matter, as a procedural issue it may well have been laid to rest. Tentatively scheduled for Friday, this week’s meeting will focus on considering and adopting a final report on the public participation process. It will then be the task of parliamentary legal services to propose any changes to the draft Bill deemed appropriate in the light of oral and written submissions, which is when mandates from the principals of political parties represented on the committee will come into play.
During last week’s meeting, members also heard oral submissions from Justice & Correctional Services Minister Ronald Lamola and Mineral Resources & Energy Minister Gwede Mantashe – with a presentation from the Department of Justice & Constitutional Development focusing on the draft Land Court Bill recently tabled in Parliament. Neither Minister raised any issues of concern regarding the draft Constitution 18th Amendment Bill. However, in responding to a question from committee chair Mathole Motshekga about a perceived disregard among mining companies for traditional religious rights and practices, Mantashe referred to a tendency for community consultation processes to be dominated by groups with agendas of their own and the extent to which this complicates the negotiations process. It was in that context that he drew attention to the importance of ‘educating people’ about the ‘complexities’ of land reform.
1 April 2021
Mandates on policy and legal issues arising from last week’s oral submissions on the draft Constitution 18th Amendment Bill will be sought from the principals of each political party represented in the ad hoc committee concerned before proceeding with the process of finalising the Bill. This, notes Legalbrief's Pam Saxby, was agreed at yesterday’s meeting, when parliamentary legal advisers Telana Halley-Starkey and Charmaine van der Merwe briefed members on the possible implications of concerns and alternative wording proposals articulated during the hearings. According to their presentation, policy decisions are required on whether expropriation for nil compensation should apply to land improvements; if the final Bill should include circumstances in which land might justifiably be expropriated for nil compensation (and/or circumstances in which certain land would be exempt from being expropriated for nil compensation); the role of the courts in the process of determining the amount of compensation for expropriated land (and when this should be nil); and whether the term ‘public interest’ automatically includes and is understood to serve ‘community interest’ in the context of land reform.
The committee’s attention was also drawn to the ‘basic structure doctrine’, in terms of which ‘certain features or principles (are) so engrained in the fabric of the Constitution that even if a supermajority, or indeed, every member of Parliament, were to decide to interfere with that feature or principle, it would be unconstitutional’ (De Rebus). In the context of objections from the EFF’s Floyd Shivambu to certain recommendations in the presentation document, members were reminded that it is parliamentary legal services’ duty to flag wording proposals that might be challenged and found not to pass constitutional muster – thus further hindering the land reform programme implementation. The document also noted the draft Bill’s interconnectedness with a revised Expropriation Bill now before the National Assembly’s Public Works & Infrastructure Committee. However, no discussion took place on procedural concerns arising from last week’s parallel oral submissions on both proposed new pieces of legislation. Perhaps the Department of Public Works & Infrastructure will clarify the status of oral evidence received on the revised Expropriation Bill, as well as plans for provincial public hearings on its contents. The department is expected to appear before the ad hoc committee next week.
Meanwhile, Agriculture, Land Reform & Rural Development Minister Thoko Didiza has assured the committee that her department is addressing institutional and capacity constraints widely perceived to have undermined the effective, efficient implementation of existing land reform programmes. No details or timeframes were provided. Instead, the Minister’s briefing and a presentation from her department focused on various enabling statutes either already in place or being amended to respond to Constitutional Court rulings. In that context, the presentation referred to a ‘Bill to regulate communal land’ (which is expected to be introduced in Parliament ‘this year’); and the 2020 Upgrading of Land Tenure Rights Amendment Bill (a ‘B’ version of which is now before the NCOP committee concerned). The Minister also noted the importance of amending section 25 of the Constitution to ‘clarify the issue of compensation’ by addressing the ‘challenge’ of ‘weighting factors’ in sub-section 25(3) as it is presently worded.
With the aim of avoiding any further misunderstandings about the extent to which the ad hoc committee may or may not have overstepped its mandate, Vusumuzi Xaba was asked to refresh members’ memories in the context of the 2018 Constitutional Review Committee report, the work of the previous Parliament’s ad hoc committee and the report of the advisory panel on land reform and agriculture. This was noting that Xaba had already been tasked with assisting committee support staff should they require clarity on certain aspects of the public participation report now being finalised. He is one of several ANC representatives on the committee and holds an LLM from the University of KwaZulu-Natal. Committee chair Mathole Motshekga expressed confidence that – once Xaba’s written summary of the mandate has been circulated – members will be ‘reading from the same page and singing from the same hymnbook’ as they proceed with finalising the Bill, which is now expected to be ready by 31 May for tabling in the National Assembly. Any committee meeting minutes yet to be read and signed off as accurately reflecting the proceedings concerned will be considered next week.
29 March 2021
Blame for a procedural blunder allowing oral submissions on the draft Constitution 18th Amendment Bill and revised Expropriation Bill to run in tandem last week – possibly compromising the entire parliamentary process – was apportioned to National Assembly committees chair Cedrick Frolick in a media statement issued on Thursday and quoting Public Works & Infrastructure Committee chair Nolitha Ntobongwana. It was published on Parliament’s website on Friday. One issued the previous day by the ad hoc committee responsible for preparing the draft Constitution 18th Amendment Bill drew attention to the implications of simultaneous oral submissions for the work of the committee ‘in its attempt to find the correct wording to allow for the expropriation of land without compensation in the Constitution’, reports Legalbrief's Pam Saxby.
As Legalbrief Today has already reported, a draft programme for the remainder of the ad hoc committee’s work was submitted to the National Assembly in support of a request for more time to fulfil its mandate. The programme envisaged at the time included dates on which oral submissions have since been heard. Presumably, it was approved by Frolick – who had already authorised the revised Expropriation Bill project timeline. Its dates for hearing oral submissions have featured in the committee meetings schedule since 11 March and were clearly going to create a clash in interests, as Legalbrief Today has pointed out on at least one occasion. Regardless of who may or may not be to blame, the damage has been done. Yet the Public Works & Infrastructure Committee appears determined to proceed with its plans to ‘visit regions in each province to listen to … wider public input’. The parallel process of hearing oral submissions on two inextricably linked pieces of proposed new legislation is described in its statement as ‘an unfortunate incident’, the likes of which ‘should be avoided at all cost’ lest ‘unnecessary confusion’ ensue.
Over the years, Legalbrief Today has repeatedly drawn attention to a tendency on the part of many MPs across party lines not to read documents circulated to them in advance of meetings, not to do the homework necessary to fully understand the legislation before them – and not to communicate with their colleagues in other committees. It became clear during the early stages of Public Works & Infrastructure Committee discussions on the revised Expropriation Bill that members, regardless of party affiliations, had either overlooked the Bill’s implications for the work of the Constitution section 25 amendment ad hoc committee or simply did not understand the purpose of the complex piece of proposed new legislation and its sub-clause 12(3) – which seeks to prescribe the circumstances in which it might be justifiable to expropriate land for nil compensation. Yet its chair, Nolitha Ntobongwana, is also a member of the ad hoc committee.
It also became clear when the ad hoc committee met towards the end of 2019 (before the draft Constitution 18th Amendment Bill was gazetted for comment) that members were either unaware of why the 2015 Expropriation Bill was being revised and its implications for their work – or chose to ignore that part of the broader process. This despite parliamentary legal adviser Charmaine van der Merwe’s regular, painstaking explanations of the role of framework and enabling legislation. Not once during debates on the most appropriate location for a list prescribing the circumstances in which land might reasonably be expropriated for nil compensation was the Expropriation Bill mentioned by name. Yet it was obvious from input made at the time by the DA’s Glynnis Breytenbach and Werner Horn that their party’s preference would be to include the list in the draft Bill then before them. This was noting that any amendment to the Constitution requires the support of two-thirds of the House, whereas an amendment to national legislation only requires the support of 50%. At the time, the DA position was that, should the list be located in national legislation, this could result in the piecemeal erosion of property rights by governments less inclined to take cognisance of its economic consequences. Similar sentiments had already been expressed by FF Plus representative Corné Mulder. Eventually, it was agreed that this matter would be flagged for deliberations after the public participation process.
The revised Expropriation Bill was tabled in Parliament in October 2020, at which point provincial public hearings on the draft Constitution 18th Amendment Bill were in their final phase. Are members of the ad hoc committee still unaware of its contents? Have they ever read the revised Expropriation Bill? If so, have they never wondered about the implications of sub-clause 12(3) for their work? Have they ever communicated on the matter with their colleagues in the Public Works & Infrastructure Committee? Did nobody in either committee notice the significance of each piece of proposed new legislation for the other? Or was it decided, long ago, that the revised Expropriation Bill would prescribe the circumstances in which land might justifiably be expropriated for nil compensation – and that any discussion on the inclusion of a list of these circumstances in the Constitution 18th Amendment Bill would simply be a formality (effectively making a mockery of the entire public participation process on the wording of amendments to section 25)?
Before last week’s revelations, parliamentary observers and commentators might have been reasonably justified in assuming that the committees concerned were working together on a mutually agreed approach to fulfilling their public participation obligations and that – despite the logistical challenges, for stakeholders, of presenting their perspectives in two sets of hearings being held simultaneously – the process was running as planned. This appears not to have been the case. It will be interesting to see how the fallout is managed.
26 March 2021
Given concerns raised about the implications of public hearings on the revised Expropriation Bill, ‘running concurrent’ with the work of the National Assembly ad hoc committee responsible for preparing the draft Constitution 18th Amendment Bill, clarity is needed on the status of oral submissions heard this week by the Public Works & Infrastructure Committee, notes Pam Saxby. The ad hoc committee issued a media statement yesterday drawing attention to these concerns and, specifically, on the impact of Expropriation Bill oral submissions on the work of the committee ‘in its attempt to find the correct wording to allow for the expropriation of land without compensation in the Constitution’. A separate Legalbrief Policy Watch report provides more detail on the proceedings concerned.
Meanwhile, a submission to the ad hoc committee from the South African Research Chair in Property Law has drawn attention to the importance of ensuring that any amendment to section 25 intended to ‘make explicit what is implicit … is clear that in any expropriation … there is always a duty to compensate’. In that context, the amendment should expressly provide that ‘the amount of compensation must be determined on a case-by-case basis, on the standard of justice and equity, and may sometimes be an amount of nil’. This is noting that ‘expropriation without compensation … in principle means that there is no obligation at all to compensate when property is expropriated’. ‘The expropriatee can in other words not question the payment of no compensation, because there is no per se duty to compensate’.
With that as its point of departure, the submission proposed wording the South African Research Chair in Property Law believes would not only clarify what is already implicit in section 25 but could also ‘expedite’ the process of expropriation for land reform purposes. According to the submission, ‘there is no need for the courts to be the only institutions clothed with the authority … to decide … that nil compensation is appropriate in a particular case’. This should be determined administratively on the understanding that, ‘should the expropriatee disagree, the dispute may … then be taken to court’. In the event of a dispute, the courts would retain the ‘ultimate authority’ to determine whether nil compensation is just and equitable – but ‘would not be the initial decision-maker in this respect’. It would nevertheless be left to the enabling legislation (the upcoming new Expropriation Act) to provide for ‘sufficient internal and affordable mechanisms to hold … decision-makers accountable’ and to ensure that only disputes that cannot be resolved between the parties ‘end up in court’.
In that context – notwithstanding concerns about the timing of the revised Expropriation Bill public participation process – a joint oral submission from Business Unity SA (Busa) and Agbiz heard yesterday by the National Assembly’s Public Works & Infrastructure Committee provided food for thought. Focusing on the ‘potential omission’ of certain provisions in the Expropriation Bill, the submission confirmed that, while neither constituency believes nil compensation is ‘required’ as an instrument for accelerated land reform, each nevertheless agrees with ‘90%’ of the Bill’s contents. Although most proposals in the Busa-Agbiz submission have already been discussed in the National Economic Development & Labour Council, one apparently fell outside its mandate.
26 March 2021
This week’s parliamentary hearings of oral submissions on the revised Expropriation Bill may have been conducted prematurely. This emerged yesterday during a meeting of the ad hoc committee established by the National Assembly to prepare and table legislation amending section 25 of the Constitution to explicitly allow expropriation for nil/without compensation for land reform purposes. What may well have been a procedural blunder in organising parallel hearings on the draft Constitution 18th Amendment Bill and revised Expropriation Bill could derail the entire process if not sensitively managed – pointing to serious shortcomings in inter-committee and intra-party communication, notes Legalbrief's Pam Saxby. It remains to be seen how it was possible for House chair Cedrick Frolick, National Assembly Programme Committee chair and Speaker, Thandi Modise, and the chief whips’ forum neither to consider nor even notice the possible implications of what was planned. Legalbrief Today has regularly reported on the matter.
What can only be described as a glaring lack of foresight and management capacity on the part of senior MPs (across party lines) and their presiding officers finally became apparent when representatives of the Department of Public Works & Infrastructure attempted to respond to their brief from the committee and were dismissed for being perceived to have misunderstood it. When representatives of the Department of Agriculture, Land Reform & Rural Development were found to have received the same brief, committee support staff explained that it had been communicated in keeping with the requirements of National Assembly Rule 275(b). This makes it mandatory for a committee preparing draft legislation to provide any ‘relevant’ national department with ‘sufficient opportunity’ to make a submission to the committee before introducing its Bill.
Against that backdrop, the Department of Public Works & Infrastructure had approached Advocate Uday Naidoo for advice. However, only when that advice drew attention to the draft Bill’s implications for provisions in the revised Expropriation Bill (which was prepared by the department and tabled by Minister Patricia de Lille) did committee members become aware that parallel hearings had been held the previous day and were continuing. Only then did it dawn on them that the National Assembly’s Public Works & Infrastructure Committee was already hearing oral evidence on a piece of proposed new legislation featuring a list of circumstances in which land expropriation for nil/without compensation might be justifiable in the public interest. Only then did members realise that, in doing so, their colleagues in the other committee may have ‘jumped the gun’ (to quote ANC representative in the ad hoc committee, Dibolelo Mahlatsi) since it had yet to be determined whether the draft Constitution 18th Amendment Bill should prescribe these circumstances. Yet, as ad hoc committee chair Mathole Motshekga confirmed, National Assembly Public Works & Infrastructure Committee chair Nolitha Ntobongwana is also a member of his committee – and, according to Parliamentary Monitoring Group committee attendance records, was present at most of its meetings this year.
Interestingly, EFF representatives in yesterday’s meeting of the ad hoc committee (Floyd Shivambu and Mbuyiseni Ndlozi) were the first to notice this – tending to suggest that only they had already read Naidoo’s advice, which was apparently circulated to members well in advance of the meeting. Whether other opposition parties representatives in the committee had done so is not clear. Whatever the case, yesterday’s unfortunate proceedings once again drew attention to intra committee alliances and tensions that may not necessarily be in the best interests of this complex process or the country. Surely silence on the part of any opposition party on possible procedural and administrative shortcomings is inappropriate, especially on matters as contentious as land expropriation without compensation?
Motshekga has asked support staff to ‘redefine the brief’ to departments being invited to make oral submissions to the committee. Among other things, the Department of Agriculture, Land Reform & Rural Development will then have an opportunity to respond to concerns voiced during this week’s hearings regarding ‘incompetence, corruption and mismanagement’ in the context of land reform programme implementation. With that in mind, next Wednesday and Thursday have been set aside in a revised committee programme that originally earmarked 19 March for departmental presentations. Meanwhile, Motshekga has undertaken to approach Ntobongwana with the aim of allowing his committee to complete its work before hers resumes its public participation process on the revised Expropriation Bill.
25 March 2021
A second round of oral submissions on the draft Constitution 18th Amendment Bill and the first leg of hearings on the revised Expropriation Bill conducted virtually yesterday, in tandem, drew attention to cross-cutting issues already articulated by several key stakeholders many times before, reports Pam Saxby. This is noting public participation processes conducted in 2018 by the Constitution Review Committee and reflected in its report; and presentations heard by the National Assembly’s Public Works Committee and its NCOP counterpart when the 2015 Expropriation Bill was being processed by SA’s fifth democratic Parliament. Against that backdrop, oral evidence heard yesterday by both committees tended to fall into two categories. One focused on the importance of effective land redistribution by fully functional institutions capable of providing the necessary post-settlement support. The other based its arguments on ideological positions either supporting or opposing one or both pieces of proposed new legislation. This is noting that the draft Constitution 18th Amendment Bill seeks to amend section 25 of the Constitution to explicitly provide for expropriation without/for nil compensation for land reform purposes; and that the revised Expropriation Bill proposes a list of circumstances in which land expropriation for nil/without compensation might be justifiable.
Presenters in favour of effective land reform aimed at sustainably improving the quality of life of SA’s most needy citizens included the Legal Resources Centre (LRC) and the Council for the Advancement of the South African Constitution (Casac). Focusing on faster, cheaper processes for addressing the plight of dispossessed people and inequitable ownership patterns, the LRC expressed support for land expropriation without compensation – favouring administrative decisions in that regard. This was noting a tendency for the courts not to understand customary law. Possibly related to this, the centre called for a shift in the focus of the land reform debate towards vulnerable people daily dispossessed by infrastructure and other developments, including mining, and compensated at far below the market value of the land concerned. At the time of writing, the LRC’s written submission on the draft Constitution 18th Amendment Bill had yet to be made electronically available. By contrast, lack of institutional capacity was the focus of an oral presentation from Casac. In the council’s view, only ‘institutional reorganisation’ will address ‘the pain of landlessness’ – especially since the Constitution already implicitly provides for expropriation without compensation. A submission from the University of Cape Town’s Land & Accountability Research Centre also tended to suggest that no amendment to section 25 is necessary – arguing that the changes proposed in respect of section 25(3) will serve only to place ‘an unconstitutional limitation of the power of the state to take the steps necessary to achieve land reform’.
In a written submission on the draft Bill, Banking Association SA (Basa) provided a different perspective on why, in its members’ view, ‘amending the Constitution to give effect to land reform is unnecessary’. Drawing attention to the importance of land reform policy that is not perceived as potentially undermining financial and economic stability, in presenting its views the association called for ‘quick, effective, sustainable’ interventions. The courts should determine on a case-by-case basis where compensation with nil compensation might be justifiable, with disputes mediated in that context. Given the myriad permutations of circumstances possibly requiring expropriation without compensation in the public interest, there should be no predetermined list in either framework or enabling legislation. In addition, noting widespread concerns about opening the door to arbitrary property deprivation on a grand scale, the association referred to the importance of adhering to international capital and liquidity standards in the context of mortgages and loans against property. Against that backdrop, Basa’s oral presentation on the revised Expropriation Bill included concrete proposals addressing specific clauses. A presentation on the Bill from Minerals Council SA did the same, nevertheless noting that – since the draft Constitution 18th Amendment Bill has yet to be finalised – in the council’s view, clauses in the revised Expropriation Bill relying on an amended section 25 are ‘misplaced’ and premature.
Expressing AfriForum’s opposition to any amendment to section 25 of the Constitution, in presenting the organisation’s oral submission Ernst Roets argued that its preamble is ‘misleading’; that it is in breach of the Constitution’s sections 2 (supreme law of the land) and 36 (the limitation of rights); that it ‘flouts’ international law; and that it could lead to SA’s ‘expulsion’ from the US African Growth & Opportunity Act. In AfriForum’s view, ‘if the Bill of Rights is changed … to allow for expropriation without compensation, there is no guarantee that, in future, this power won’t be abused by those who inherit the law from those who made (it)’. Noting the ‘range of different political parties who may use (expropriation without compensation) in all sorts of ways’, the submission pointed to the possibility that it may not ‘always be the noble who expropriate’ and that the amended section 25 may be used as ‘a weapon to punish people … who don’t share their political views or … ethnic backgrounds’.
In opposing the revised Expropriation Bill, AfriForum’s Ernst van Zyl expressed concern that it would open the way to the widespread confiscation of land, associated improvements, moveable property and intellectual property. He also mentioned the Bill’s negative implications for the banking sector and investment. At the time of writing, his presentation was not available. However, much of what Van Zyl said was endorsed and expanded upon in an oral submission from the Institute of Race Relations (IRR) and one from AgriSA. In her presentation on behalf of the IRR – noting and elaborating on the Bill’s ‘numerous defects’ not only in respect of land expropriation but also regarding other forms of property – Anthea Jeffrey nevertheless agreed on the need for ‘better’ legislation ‘in line with the Constitution’. AgriSA’s presentation included a critique of several clauses in the Bill.
Summarising the Black First Land First submission, Andile Mngxitama described the draft Bill as a ‘monumental betrayal’ of black people – calling for the confiscation of all land held by white people for redistribution to black South Africans, whom he defined as ‘black in pigmentation’ and ‘subscribing to the interests of the African majority’. With that in mind, in his organisation’s view, by entertaining both pieces of proposed new legislation Parliament is involving itself in ‘massive fraud’. Simply providing for the expropriation of ‘unproductive land’ not valued by white people, neither the draft Constitution 18th Amendment Bill nor the ‘premature’ revised Expropriation Bill meets the expectations of black South Africans since neither seeks to fundamentally change prevailing ‘land ownership patterns’.
Oral submissions on the draft Constitution 18th Amendment Bill included one from the Southern African Catholic Bishops Conference, whose presentation called for a more nuanced approach to land reform. This was noting the potential for any attempt at addressing ‘an historic injustice’ to ‘end up doing more harm than good’. The presentation also ‘strongly’ supported the involvement of the courts in determining when nil compensation should be paid. A submission from Freedom of Religion SA proposed a clause excluding from expropriation without compensation any land owned by a religious community and used to exercise the constitutional right to religious freedom. This presentation also proposed that the draft Bill should include ‘a closed list of criteria’ for determining whether land might justifiably be expropriated for nil compensation.
In its submission on the revised Expropriation Bill, the National House of Traditional Leaders (NHTL) expressed concern about the likelihood of communal land being ‘expropriated and … turned over for other purposes to organs of state, with no redress’ – thereby explaining its opposition to the draft Constitution 18th Amendment Bill, which was articulated in a separate presentation to the committee concerned. While the NHTL’s submission on the draft Bill has yet to be made electronically available, its input on the revised Expropriation Bill focused on clauses unrelated to expropriation for nil compensation. By contrast, the Congress of Traditional Leaders of SA expressed unreserved support for land expropriation without compensation in principle, without referring expressly to either piece of proposed new legislation.
Free State Agriculture’s presentation on the revised Expropriation Bill focused on its member’s fears – elaborating in considerable detail on these and their implications for the agricultural sector, the broader economy and the livelihoods of farmers deprived of their property. The organisation rejected outright both pieces of proposed new legislation and any other draft Bill that ‘diminishes and threatens property rights’. Possibly in that context, Sakeliga’s comprehensive analysis of the revised Expropriation Bill’s perceived shortcomings described the expropriation of property without compensation as ‘an act of confiscation’, and nil compensation for expropriated property as ‘a denial of … remedy’. On that basis, Sakeliga’s view is that the Bill’s proposals in that regard constitute ‘a violation of the South African Constitution as well as … international law’.
Public hearings on the revised Expropriation Bill are scheduled to continue today when oral submissions on the draft Constitution Amendment Bill are expected to be concluded.
For reports on the process from December 2018, click