• Policy Watch SA

LAND REFORM: CONSTITUTION 18TH AMENDMENT BILL PROCESS UNPACKED

Updated: 2 days ago


Copied below - in order of publication from December 2018, when the National Assembly decided to establish an ad hoc committee to prepare the Bill - are all Policy Watch reports on the process featured in Legalbrief Today.


As the owner of Legalbrief, Juta Law holds the copyright to these articles, which are reproduced with their permission. I wrote them. All documents embedded in the text were made available to members of the public attending the meetings concerned. They are sourced from the Legalbrief media store and can be accessed without a subscription, being public documents.


4 December 2018

Parliament has issued a media statement spelling out the process to be followed in amending section 25 of the Constitution ‘to make expropriation of land without compensation more explicit’. This is noting that the NCOP will only consider the Joint Constitutional Review Committee report concerned today, reports Pam Saxby for Legalbrief Policy Watch. According to the statement, the amendments envisaged will take the form of a draft Constitutional Amendment Bill, which will be released for public comment once it has been approved by Cabinet. When the commentary period has ended, all written submissions will be presented to the National Assembly Speaker and NCOP chair before being tabled in parliamentary papers – which will be made ‘accessible to the public’. The Bill will then be formally tabled in the National Assembly and processed in keeping with the requirements of section 74 of the Constitution and Part 4 of the Joint Rules of Parliament. They include public hearings in each House as well as in the provincial legislatures, with sufficient time allowed for the provinces to thoroughly consider the Bill.

The statement makes no reference to the Expropriation Bill, which was withdrawn from Parliament in September so that it could be revised to provide for the state to expropriate land in the public interest without compensation, as Legalbrief Today has already reported. According to Public Works Deputy Minister Jeremy Cronin, this is noting that, once operational and as a law of general application, the Bill will prescribe the ‘specific conditions’ in which the use of such a measure would be ‘just and equitable’ – in keeping with section 36(1) of the Constitution (limitation of rights) (City Press). The revised Expropriation Bill will be subjected to the normal parliamentary process, which will also entail public hearings in the provinces. While it is quite possible that the Constitution Amendment Bill and Expropriation Bill parliamentary processes could run simultaneously, the likelihood of their being concluded before the end of next year is slim. It remains to be seen how the ANC and EFF manage the expectations of their grassroots supporters in this regard during the run-up to the 2019 general elections.


6 December 2018

The National Assembly has agreed to establish an ad hoc committee to ‘initiate and introduce legislation … (amending) section 25 of the Constitution so that expropriation of land without compensation is made explicit, as a legitimate option for land reform’. According to the media statement announcing this yesterday, the committee is expected to complete its work ‘before the end of the fifth Parliament’ and to report to the House by 31 March 2019, notes Pam Saxby for Legalbrief Policy Watch. Spelling out the composition of the ad hoc committee and the principles underpinning its work, the statement notes parliamentary rules making public participation and transparency requirements of the process to be followed in giving practical effect to recommendations in a Joint Constitutional Review Committee report adopted this week by the National Assembly and NCOP.

Meanwhile, Cabinet has approved the release of a draft revised Expropriation Bill for public comment, providing for ‘explicit circumstances under which land expropriation in the public interest may be without compensation’. According to a statement on the meeting at which the draft Bill was considered, the clauses concerned ‘strengthen’ the 2015 Expropriation Bill, which was withdrawn from Parliament in September. Once in force, the revised draft Bill is expected to ‘assist in accelerating the land reform programme … within the framework of … constitutional principles’. As Legalbrief Today has already reported, Public Works Deputy Minister Jeremy Cronin has drawn particular attention to a requirement in section 36(1) of the Constitution: that any limitation of rights should be ‘reasonable and justifiable’ (City Press).


22 January 2019

Parliament appears to be sending mixed messages about the process to be followed in amending the Constitution to provide explicitly for land expropriation without compensation, reports Pam Saxby for Legalbrief Policy Watch. According to ANC National Assembly chair responsible for committees, Cedric Frolick, the ad hoc committee appointed to draft the necessary Constitution Amendment Bill has yet to finalise its ‘timeline for meetings and public hearings’ (Mail & Guardian). Yet a parliamentary media statement issued on 4 December made it very clear that the draft Bill will only be released for public comment once it has been approved by Cabinet.

Two days later, a parliamentary statement announcing the ad hoc committee’s appointment among other things noted that it is expected to ‘initiate and introduce legislation … before the end of the fifth Parliament’ and to report to the House by 31 March 2019 – presumably on progress made. Frolick, on the other hand, insisted that the committee process should not be ‘a race against time’. He even alluded to the possibility that work on the draft Bill may need to be completed ‘by the sixth Parliament’.

According to the 4 December parliamentary statement, at the end of the commentary period on the draft Constitution Amendment Bill all written submissions will be presented to the National Assembly Speaker and NCOP chair before being tabled in parliamentary papers – which will be made ‘accessible to the public’. The Bill will then be formally introduced and processed in keeping with the requirements of section 74 of the Constitution and Part 4 of the Joint Rules of Parliament. They include public hearings in each House as well as in the provincial legislatures, with sufficient time allowed for the provinces to thoroughly consider the Bill.

The 6 December statement pointed out that, in carrying out its work and performing its functions, the ad hoc committee will be guided by ‘the Constitution, legislation, National Assembly resolutions and Rule 167 of the 9th edition of the National Assembly rules’. Setting out the general powers of National Assembly committees, among other things the rule appears to allow any committee to conduct public hearings, which may explain Frolick’s reference to the need for a ‘timeline’. While this has yet to be submitted to the parliamentary authorities concerned – presumably for approval – one cannot help but wonder about the need for so many public hearings on the same issue.

The process of determining whether the Constitution required amendment to enable land expropriation without compensation included nationwide hearings on which Legalbrief Today regularly reported. If the ad hoc committee tasked with drafting the amendment is to hold public hearings, what will be their focus? The wording, perhaps? If so, surely experts in constitutional law are the only people qualified to offer an opinion? Parliament would do well to clarify this. Clarity is also needed on Frolick’s hint at work on the draft Bill possibly being completed during the 6th Parliament. This might mean appointing a new committee, since there is no guarantee that its existing members will return to Parliament after the elections.

There is another complication. As Legalbrief Today has also reported, the draft revised Expropriation Bill released last month for comment proposes various situations perceived to justify land expropriation without compensation. Its preamble includes section 25 of the Constitution in its present form. Yet that is precisely the section about to be amended. Begging two questions: Will stakeholder input on the draft revised Expropriation Bill inform work on the draft Constitution Amendment Bill or vice versa; and will parliamentary and provincial legislature hearings on the two Bills eventually tabled be held in tandem?


13 March 2019

Given prevailing time constraints and the extent of the work entailed, the ad hoc committee on amending section 25 of the Constitution to facilitate land expropriation in the public interest without compensation has recommended that SA's sixth democratic Parliament take the process forward, reports Pam Saxby for Legalbrief Policy Watch. According to yesterday's media statement, a report to this effect to be tabled in the National Assembly also outlines the committee's progress to date.

Since their first meeting on 12 February, members have been briefed on the extensive preparatory work undertaken last year by Parliament's Joint Constitutional Review Committee, along with legislative procedures to be followed in preparing the required committee Bill. In addition, they have discussed the policy framework to underpin its provisions and held 'extensive engagements' with experts in land reform and the Constitution. An earlier statement noted the need for a ‘meticulous’ process that should ‘not come across as being rushed’ and should contribute to ‘nation building’.


25 July 2019

The National Assembly has, in principle, established a new ad hoc committee to initiate and introduce legislation amending section 25 of the Constitution ‘to make explicit that which is implicit’ regarding land expropriation without compensation, reports Pam Saxby for Legalbrief Policy Watch. It is expected to complete this task by 31 March 2020 – informed by work conducted and recommendations made in reports compiled under SA’s fifth democratic Parliament by the first ad hoc committee (which could not complete its task by the time Parliament rose for May’s general elections) and the previous Joint Constitutional Review Committee. This is according to parliamentary papers circulated yesterday.

A media statement issued in March by the previous ad hoc committee noted, among other things, that – in the short time available to them – members had opted to focus on identifying key elements of a policy framework to underpin the amendment Bill required. Discussions in this regard were informed by preparatory work undertaken last year by the Joint Constitutional Review Committee, as well as ‘extensive engagements’ held with experts in land reform and the Constitution. An earlier statement drew attention to the need for a ‘meticulous’ process that should ‘not come across as being rushed’ and should contribute to ‘nation building’.


5 September 2019

Mathole Motshekga will chair the ad hoc committee established by Parliament in July to initiate and introduce legislation amending section 25 of the Constitution to allow for land expropriation without compensation in clearly defined circumstances. According to a media statement announcing this yesterday, the work of the committee is expected to send a ‘strong message’ to all South Africans reaffirming government’s determination to address the ‘original sin’ of land dispossession, reports Pam Saxby for Legalbrief Policy Watch. Committee members have undertaken to give ‘equal weight’ to all submissions received on the issue since the process began last year, keeping the ‘interests of SA, … her people and her economic well-being’ uppermost in their minds.

Parliamentary papers circulated in July set 31 March 2020 as the date by which the committee should ‘report’ to the National Assembly – although whether the necessary amendment Bill is expected to have been introduced by then is not clear. The committee’s work will be informed by that of its predecessor under SA’s fifth democratic Parliament, as well as recommendations received from the previous Joint Constitutional Review Committee. Motshekga also chairs the new joint committee. There have been no recent pronouncements on the process of revising the 2015 Expropriation Bill, draft amendments to which were released last December for comment.


11 September 2019

Members of the ad hoc committee established to initiate and introduce legislation amending section 25 of the Constitution to explicitly allow for land expropriation without compensation in specific circumstances have been asked to ‘rise above party political interests’ as they proceed with their work, reports Pam Saxby for Legalbrief Policy Watch. Although yesterday’s meeting focused on the roadmap envisaged for preparing a Bill to be tabled in the National Assembly on or before 31 March 2020, committee chair Mathole Motshekga used the opportunity to remind members of the enormous responsibility they now shoulder as an ‘autonomous committee’ in crafting amendments to a key provision of the Bill of Rights – which he referred to as ‘the soul of the Constitution’ and the very foundation of SA’s democracy. Since the piece of legislation emerging from this process will be subjected to ‘the scrutiny of the courts’, it must be meticulously drafted – possibly with the assistance of carefully identified experts.

According to Motshekga, the committee is ‘not bound’ by the reports and recommendations of either the high-level panel appointed in 2016 to assess the impact of key post-1994 legislation in accelerating ‘fundamental change’ or the presidential advisory committee on land reform. However, most members agreed that it would be helpful to be briefed on the thinking behind these recommendations. To that end, it was proposed that experts on the issues concerned and their implications for ‘the spirit of the Constitution’ and other related sections should be invited to participate in a workshop essentially aimed at ‘levelling the playing field’ before work on the Bill begins in earnest. This is noting that the procedures to be followed in developing a committee Bill include releasing a draft for comment before holding public hearings.

Participants in the workshop could include Ruth Hall and Ben Cousins (University of the Western Cape); Quinton Johnson (Nelson Mandela University); former Constitutional Court judges Albie Sachs, Sandile Ngcobo and Johann van der Westhuizen; retired Deputy Chief Justice Dikgang Moseneke; Advocates Tembeka Ngcukaitobi and Wim Trengove; high-level panel chair and former President Kgalema Motlanthe; representatives from the Black Lawyers Association and the National Association of Democratic Lawyers; the representatives of churches with significant land holdings; officially recognised kings, queens and traditional leaders; and representatives of the San and Khoi communities.


14 October 2019

The 31 March 2020 deadline for tabling legislation amending section 25 of the Constitution to allow for land expropriation without compensation will be met, according to a media statement issued yesterday by the ANC’s Mathole Motshekga, who chairs the ad hoc committee concerned, notes Pam Saxby for Legalbrief Policy Watch. ‘The committee takes its work very seriously and will put in all the hours necessary to ensure the work is done thoroughly’ – beginning with a workshop with ‘various experts on the land question’, the statement noted.

Last month, as Legalbrief Today has already reported, members agreed that the focus of the workshop would be a briefing from experts on the thinking behind recommendations made by the high-level panel appointed in 2016 to assess the impact of key post-1994 legislation in accelerating ‘fundamental change’, as well as the presidential advisory committee on land reform. Experts from other African countries may also be invited to ‘share their experience’. Plans for the workshop are expected to be finalised on Friday, when the committee will also discuss other aspects of its programme.


28 October 2019

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

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

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

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

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


6 November 2019

Section 25 of the Constitution (property rights) could be amended in two ways to allow for land expropriation without compensation, according to parliamentary legal adviser Charmaine van der Merwe. She spelled out the possible options during yesterday’s constitutional dialogue on land reform, when ‘experts and stakeholders’ shared their ‘insights’ with members of the ad hoc committee tasked with initiating and introducing the legislation required, writes Pam Saxby for Legalbrief Policy Watch. A media statement on the dialogue refers to the possibility of changing either sub-sections 2(b) and 3(b) or inserting a new subsection. However, a Parliamentary Monitoring Group (PMG) sound recording of the proceedings tends to suggest that subsection 25(3) would be replaced in its entirety – not sub-section 3(b) alone. This is noting that the committee has been mandated to make explicit what is already implicit in section 25.

Sub-section 25(2) provides that ‘property may be expropriated only in terms of a law of general application (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court’. The PMG sound recording of the dialogue confirms what the committee statement notes: that sub-section 25(2)(b) could be amended by adding ‘provided that a court may determine that no compensation is payable in the event of expropriation of land for the purpose of land reform’. The change envisaged for sub-section 25(3) would then be consequential and would replace the entire sub-section with a provision possibly reading: ‘Where compensation is payable, the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances’.

Alternatively, a new sub-section could be inserted, leaving sub-sections 25(2) and (3) as they are. In Van der Merwe’s view, the proposed new sub-section could read: ‘Notwithstanding the requirement for compensation contemplated in subsections (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination’. She does not support a presidential panel recommendation that the only amendment required is the insertion of a sub-section specifying the circumstances in which land would be expropriated without compensation. Van der Merwe believes that, should such a provision be deemed necessary, it would need to be combined with one of the two options she has proposed.


13 November 2019

‘Property’ and the ‘custodianship of land’ were not included in the mandate of the ad hoc committee established by Parliament to initiate and introduce legislation amending section 25 of the Constitution to explicitly provide for land expropriation without compensation, according to committee chair Mathole Motshekga, reports Pam Saxby for Legalbrief Policy Watch. The media statement confirming this yesterday also noted members’ commitment to taking due congnisance of work conducted under the auspices of the previous Parliament and recommendations made in the reports concerned. However, it tends to suggest that the committee has yet to formally instruct Parliament’s legal advisers to begin drafting the necessary Bill.

This notwithstanding, two possible options were presented to members last week during a constitutional dialogue on land reform, as Legalbrief Today reported at the time. According to a press release on the dialogue, they would entail either amending sub-sections 25(2)(b) and 3(b) or inserting a new subsection. However, a Parliamentary Monitoring Group sound recording of the proceedings makes it very clear that sub-section 25(3) would be changed in its entirety should that option be pursued – tending to point to an error in last week’s statement. Motshekga made no reference in yesterday’ press release to the proposals concerned.

Once the draft Bill has been finalised it will be released for public comment. In this regard, Motshekga has again reiterated the committee’s intention to engage ‘all stakeholders’ before arriving at ‘final determinations on contentious issues’. This is noting the importance of ensuring that the proposed new piece of legislation is ‘co-owned by the people of SA as a whole’. He is nevertheless confident of meeting the 31 March deadline for tabling the Bill in the National Assembly – after which it will be subjected to public hearings in the NCOP and provincial legislatures. The committee’s next meeting will focus on ‘themes’ that emerged from last week’s dialogue. No date has been announced for this or deliberations on the two options mooted for amending section 25.


19 November 2019

Political parties represented in the ad hoc committee established by Parliament to initiate and introduce legislation amending section 25 of the Constitution were given two days to respond to parliamentary legal adviser Charmaine van der Merwe’s presentation on themes that emerged from the committee’s recent constitutional dialogue on land reform. This was reflected in a committee media statement on last Wednesday’s meeting and is confirmed by a Parliamentary Monitoring Group (PMG) sound recording of the proceedings, reports Pam Saxby for Legalbrief Policy Watch. According to the media statement, political parties were given ‘until Friday (that week) to make further submissions, if any, on the themes of the constitutional dialogue’. According to the sound recording, these themes will then inform the process of drafting the required Constitution Amendment Bill.

The DA’s announcement on Friday that ‘it will not be making any submissions to the committee’ refers to that day’s perceived ‘deadline for political parties to hand in their submissions on the draft section 25 amendment Bill’. Yet it is clear from the sound recording that no such Bill exists at this stage – although the committee agreed that Van der Merwe should begin drafting one. Unfortunately, this decision was not clearly spelled out in the committee statement, which simply noted an observation made by its chairman, Mathole Motshekga, about the importance of giving Parliament’s legal services the necessary instruction.

Not altogether surprisingly, there appears to have been a misunderstanding on the part of DA parliamentary caucus chair Anne Loriet (who issued her party’s statement) about what was agreed at the meeting. While she is listed by PMG as a member of the committee, the sound recording tends to suggest that only Glynnis Breytenbach was present and that she may have left before the decision since reported was made. Whatever the case, while an article in The Star on Saturday quoting the announcement made the DA’s position on amending section 25 of the Constitution very clear, it may have misled readers about the process being followed in Parliament. Legalbrief Today featured this article in its Monday edition.

Whether or not the committee was scheduled to meet at all last week was also a source of confusion in some circles. An updated list of the day’s meetings is sometimes only circulated that morning and may even be inaccurate. Legalbrief Policy Watch therefore apologises for having reported on Thursday that a meeting was scheduled for that afternoon when, in fact, it had already taken place – and for changing its report on Friday to reflect that no meeting was held at all. As the PMG sound recording confirms, the committee met on Wednesday to be briefed on themes emerging from the constitutional dialogue and agreed that political parties should submit any proposals for changes to these themes by Friday that week.

At the time of writing, no meeting had been scheduled for this week.


3 December 2019

A preliminary draft Constitution 18th Amendment Bill explicitly providing for land expropriation without compensation was presented yesterday to members of the ad hoc committee tasked by the National Assembly to table amendments to section 25 in the House by 31 March 2020. The document will be considered at a meeting tentatively scheduled for tomorrow morning when – according to a committee media statement on yesterday’s discussions – members will be given an opportunity to propose ‘specific circumstances’ in which nil compensation could be justifiable. However, in the view of parliamentary legal adviser Charmaine van der Merwe, a list of such circumstances would be best placed in the ‘enabling legislation’ to follow. This is noting that the Constitution is ‘framework legislation’ and that any amendments to its provisions should be seen in that light, reports Pam Saxby for Legalbrief Policy Watch.

Given that any change to the Constitution requires the support of two-thirds of the House – while only 50% is necessary for the adoption of national legislation – the DA’s Werner Horn and Glynnis Breytenbach expressed concern that, in the absence of provisions specifying circumstances in which nil compensation would be permissible, property rights in respect of land would be susceptible to ongoing erosion over time by piecemeal amendments to the ‘enabling legislation’. While the ensuing discussion was cordial, it became clear that any opposition party proposals interpreted as attempts to maintain the status quo or delay the process of land reform are not likely to be well received. Committee chair Mathole Motshekga repeatedly drew attention to the urgency of amending section 25 of the Constitution in the context of ‘land hunger’ and mounting frustration at the slow pace of change. The EFF’s Nthako Matiase endorsed this view.

The draft Bill will probably be finalised tomorrow and gazetted for comment on Friday or early next week. Although the 21-day period officially allowed for input from members of the public will only begin after the festive season, this arrangement will allow them considerably more time to study the amendments mooted and prepare any submissions they may wish to make. It was prompted by past criticism levelled at other committees when the public commentary period for a draft Bill fell during the December-January holiday period. Gazetting the proposed new statute early in December will also give provincial legislatures and the National House of Traditional Leaders time to arrange sittings during January in anticipation of preparing and submitting their own input. No further discussion took place on concerns expressed during last week’s meeting about the implications of the survival clauses in terminated bilateral investment treaties for land expropriation.


5 December 2019

The draft Constitution 18th Amendment Bill presented on Tuesday to the National Assembly ad hoc committee tasked with amending section 25 (property) will be gazetted for public comment early next week, reports Pam Saxby for Legalbrief Policy Watch. No changes were made at yesterday’s meeting, although ANC representatives in the committee circulated a document proposing several. However, following concerns about the process vehemently expressed by FF Plus MP Corné Mulder and endorsed by the DA’s Glynnis Breytenbach, it was agreed that these and any proposals from other political parties should be submitted at a later stage. This is noting that, on Tuesday, it was made very clear that neither the DA nor the FF Plus had scheduled caucuses during the few days remaining of the 2019 parliamentary programme and that their representatives in the committee would therefore not be in a position to make formal proposals on Thursday.

Both parties nevertheless repeated their concerns about ‘enabling’ national legislation providing for the specific circumstances in which nil compensation for expropriated land should be permissible. In the view of both the DA and FF Plus, these circumstances should be listed under section 25, lest property rights in respect of land become susceptible to ongoing erosion over time by piecemeal amendments to national legislation. This is noting that amendments to the Constitution require the support of two-thirds of the House, while only 50% is necessary for the adoption of national legislation. On that basis, both parties reiterated their opposition to the draft Bill’s clause 1(c), which proposes a new sub-section 25(3)(A) providing that ‘national legislation must … set out specific circumstances where a court may determine that the amount of compensation is nil’.

Given reservations expressed by parliamentary legal adviser Charmaine van der Merwe about the need for provisions already in section 25 to be duplicated in its sub-sections, the ANC’s proposals could well be reworked. One went beyond the committee’s mandate by suggesting that sub-section 25(7) be amended to explicitly provide for restitution or equitable redress in respect of property from which people were removed before 19 June 1913. Another sought to include a reference to nil compensation in subsection 25(8), which deals with ‘land, water and related reform’ in the context of ‘redress … (for) past racial discrimination’. According to a committee media statement on yesterday’s meeting, the draft Bill will be advertised on 2 January 2020, when the required public commentary period will officially begin – ending on 31 January. However, since the proposed amendments will be gazetted early next week, stakeholders will effectively have considerably longer to comment on its proposals. Gazetting the Bill this month will also allow the provincial legislatures and the National House of Traditional Leaders time to arrange sittings during January in anticipation of preparing and submitting their own input.


6 December 2019

The draft Constitution 18th Amendment Bill seeking to amend section 25 (property) to explicitly provide for land expropriation without compensation was published on Friday by the National Assembly ad hoc committee responsible for preparing the necessary legislation. This is the first official call for public comment on the draft Bill, which is expected to be gazetted this week, reports Pam Saxby for Legalbrief Policy Watch. A committee media statement announcing the move has set the deadline for written submissions at 31 January 2020. According to the committee programme, public hearings will be held between 17 and 21 February. Members will then finalise the Bill for tabling in the National Assembly on or before 31 March. If approved and sent to the NCOP for concurrence, as a section 74(2) piece of proposed new legislation the Bill is required to be subjected to robust public participation in all nine provincial legislatures.


9 January 2020

There will be no extension to the 31 January deadline for written submissions on the draft Constitution 18th Amendment Bill, according to the ANC’s Mathole Motshekga, who chairs the National Assembly ad hoc committee responsible for preparing the proposed new piece of legislation (SABC News). Released on 6 December by the committee and gazetted a week later for public comment, the draft Bill proposes amendments to section 25 of the Constitution to explicitly provide for the expropriation of landed property without compensation for the purpose of land reform. As framework legislation, the clauses mooted do not include a list of the circumstances in which such a measure could be used. At this stage, it is envisaged that this will be left to enabling national legislation, notes Pam Saxby for Legalbrief Policy Watch.

Meanwhile, as Legalbrief Today has already reported, a revised version of the 2019 draft Expropriation Bill has been approved by Cabinet for release into the public domain for further comment. While this was announced on 17 December in a media statement on Cabinet’s final meeting for the year, nearly four weeks later the draft Bill had still not materialised (at least at the time of writing). Since its 2019 version included a list of situations in which a memorandum on its objects proposed ‘nil compensation’ for land expropriated in the public interest ‘may be just and equitable’, the latest draft is widely expected to do the same. Despite this, Wednesday’s SABC News report made no mention of the draft Bill. Neither did the 17 December post-Cabinet meeting statement refer to its implications for proposed amendments to section 25 of the Constitution. Instead, it simply noted that, once in force, the Expropriation Bill will provide ‘a legal framework for government departments and other organs of state … to apply uniform land and other infrastructure expropriation procedures’.


30 January 2020

A revised draft Expropriation Bill approved by Cabinet on 13 December for release into the public domain for further comment was not mentioned during yesterday’s meeting of the ad hoc committee established by the National Assembly to initiate and introduce legislation amending section 25 of the Constitution – with the aim of explicitly providing for expropriation without compensation for land reform purposes, lest anyone should still be wondering. This, notes Pam Saxby for Legalbrief Policy Watch, tends to suggest either that committee members are not aware of Cabinet’s decision or it has been agreed behind the scenes that nobody should ask when the revised draft Bill is expected to be published. Given that the first revised draft (released in December 2018) proposed a list of circumstances in which the expropriation of land and landed property for nil compensation might be appropriate, the ongoing silence of all political parties represented in the committee beggars belief.

Yet consensus was quickly reached yesterday on extending the deadline for public comment on the draft Constitution 18th Amendment Bill to the end of February – and that the media statement announcing this should explain the purpose of the commentary period in layman’s terms. According to parliamentary support staff, many of the submissions received to date appear to have missed the point. This should not have come as a surprise. Thus far, among mainstream media reporters only the Daily Maverick’s Marianne Merten has attempted to explain the draft Bill’s purpose and context with any degree of accuracy – and even she appears to have overlooked Cabinet’s approval of a revised draft Expropriation Bill for a second round of public comment. According to Merten, ‘as far as is known’ the document is still before the National Economic Development and Labour Council.

A 17 December press release on the Cabinet meeting four days earlier clearly states otherwise. However, since the meeting took place on Friday 13th perhaps the government official responsible for writing it made a mistake? Perhaps there will be no further consultations and the Bill is instead ready for tabling in Parliament? Whatever the case, even if every single MP from each of the parties represented in Parliament was unaware of the press release, surely at least one vigilant journalist spotted it? Apparently not. It was, after all, the ‘silly season’. Yet the sensitive issue of land expropriation without compensation and the draft Bill expected to clarify when this might reasonably be justifiable has still not attracted the level of attention it undoubtedly merits – seven weeks after being approved by Cabinet and two weeks after South Africans fortunate enough to have jobs and still on holiday eventually returned to their desks.

As Legalbrief Today has repeatedly reported (apparently to no avail), the statement on Cabinet’s final meeting for 2019 confirmed – among other things – that the version of the draft Expropriation Bill released over a year ago for comment has since been ‘enhanced’ by ‘inputs’ from ‘extensive consultation’ with members of the public and ‘different formations’. ‘Once passed into law, it will provide uniform procedures to be followed by departments and other organs of state across all three spheres of government when ‘effecting … expropriation’. Since it is inextricably linked to the draft Constitution 18th Amendment Bill, one cannot help but wonder why taxpayers tolerate this level of incompetence (or, possibly, even skullduggery) on the part of their representatives in Parliament, the lowliest of whom earn a whopping R95 245 per month plus benefits (Africa Check).


4 February 2020

The first round of public hearings on the draft Constitution 18th Amendment Bill will take place between from 20 to 24 February in Limpopo and Northern Cape provinces, reports Pam Saxby for Legalbrief Policy Watch. According to a media statement announcing this yesterday, members of the parliamentary committee responsible for preparing the proposed new statute will split into two groups so that the optimal number of hearings can be held across all nine provinces during the time available. This is noting that the deadline for written submissions on the draft Bill was recently extended to 29 February.

There has still be no official comment from the committee, Parliament or any of the parties represented there about Cabinet’s decision on 13 December to approve the release of a revised draft Expropriation Bill for further input. Yet this decision could well compromise the entire public participation process, mainly because the ever-elusive revised draft is expected to specify the circumstances in which expropriation with nil compensation might reasonably be used as an instrument for land reform purposes. At this stage, as framework legislation, the draft Constitution 18th Amendment Bill simply seeks to provide for this – leaving the details to unspecified enabling legislation widely understood to be the new Expropriation Bill.

South Africans aware of the nuances could be forgiven for wondering what point there might be in commenting on a draft Constitution 18th Amendment Bill without sight of the very important details likely to be spelled out in the revised draft Expropriation Bill and subjected to a separate public participation process. This conundrum could have been avoided if both pieces of proposed new legislation had been released together for comment. Cabinet’s decision tends to suggest that this would, in fact, have been possible. However, as things now stand the ruling party could find itself accused, at worst, of attempting to deceive members of the public – and, at best, of not planning (or thinking) ahead.

It remains to be seen if opposition parties concerned about property rights are waiting for the most strategically opportune moment to announce their intentions in this regard. Will it be after the Constitution 18th Amendment Bill has been finalised and passed by both Houses – and is ready to be signed into law? Shortcomings in the public participation process have resulted in many key Bills being returned to Parliament or left gathering dust on a Presidency desk. Unfortunately, however, this tactic does nothing for policy certainty and even less for ongoing efforts to attract investment and boost economic growth. It could also fan the flames of grass roots frustration over the slow pace of reform, especially if land hunger (News24) is as acute as the ANC and EFF claim.

The entire process needs to be managed by all political parties with greater insight and sensitivity. At the very least, ordinary South Africans deserve the courtesy of an official statement from government explaining the relationship between the two draft Bills; when the revised draft Expropriation Bill will be released and why this has taken so long; and when they can expect to see the draft Land Court Bill Justice & Correctional Services Minister Ronald Lamola promised would be tabled ‘soon’ – as far back as last July. Given that the purpose of a Land Court Bill would be to ‘strengthen’ the adjudication process in the context of disputes over land restitution, distribution and expropriation, a first draft might throw light on a recommendation emerging from last month’s ANC national executive committee lekgotla, that the powers to expropriate landed property should be ‘vested in the executive’, not the courts.


10 February 2020

Nationwide public hearings on the draft Constitution 18th Amendment Bill are expected to continue until 22 March, according to a draft programme released yesterday by the parliamentary committee concerned. This is noting that the proposed new piece of legislation seeks to amend section 25 of the Constitution with the aim of providing explicitly for expropriation without compensation for land reform purposes. The specific circumstances in which this would apply have not been included in the draft, reports Pam Saxby for Legalbrief Policy Watch.

Furthermore, a revised draft Expropriation Bill widely understood to list them and approved on 13 December by Cabinet for another round of public comment has yet to materialise. The whereabouts of this vitally important piece of draft legislation was not raised at last Tuesday’s committee meeting, when the public hearings programme was adopted. In fact, members have been completely silent on the matter – at least during the only two meetings held this year.

The extended deadline for comment on the draft Constitution 18th Amendment Bill (29 February) and the length of the public hearings programme tend to point to the need for a great deal more time to finalise the proposed new statute for tabling in the National Assembly. As has been widely reported, the committee was originally expected to have completed its work by 31 March. However, during its first meeting this year, ANC representative Regina Lesoma’s brief reference to the end of April was not taken any further. Perhaps a decision will be left to the programming committee and announced once Parliament has been formally opened and the House begins its work in earnest.


17 February 2020

The ‘amendment’ to section 25 of the Constitution ‘must clarify the circumstances under which (the) expropriation of land without compensation would be permissible’. This is according to a National Assembly Committee on Agriculture, Land & Rural Development media statement posted yesterday on the national government website but dated 14 February. The remark is directly attributed to committee chair Zwelivelile Mandela, who is also a member of the ad hoc committee appointed to initiate and introduce legislation amending section 25 of the Constitution to explicitly provide for the expropriation of land and landed property for nil compensation where this would be appropriate in the interests of land reform. If the statement quotes him correctly, it points to a change in his party’s position on the contents of the Constitution 18th Amendment Bill, a draft of which is open for written comment until 29 February but does not spell out the circumstances to which Mandela alludes, notes Pam Saxby for Legalbrief Policy Watch.

When the ad hoc committee met last December to discuss and eventually finalise the draft for its first round of input from ordinary South Africans and stakeholders, the ANC position was that the Bill should not specify the circumstances in which land expropriation for nil compensation might be justifiable. This position was in line with a recommendation from parliamentary legal adviser Charmaine van der Merwe, that – as framework legislation – the Constitution should leave the specifics to enabling national legislation. The DA and the FF Plus nevertheless expressed concern that this could open the door to the further erosion of property rights over time. This is noting that legislation amending the Constitution requires the support of two-thirds of the House, whereas only 50% is required to support an amendment to national legislation.

During these discussions not one committee member asked about or even referred to the draft Expropriation Bill – which on 17 December nevertheless featured in a post-Cabinet-meeting press release, having allegedly been approved for a further round of public comment. Last week, the official version of President Cyril Ramaphosa’s State of the Nation Address corrected this. According to the President, ‘government stands ready – following the completion of the parliamentary process to amend section 25 of the Constitution – to table an Expropriation Bill that outlines the circumstances under which (the) expropriation of land without compensation would be permissible’. The 17 December press release appears to have completely misrepresented the status of the Bill.

In the wake of all this confusion, anyone attempting to follow the process of developing legislation to provide for land expropriation without compensation for land reform purposes will no doubt be forgiven for wondering if the chair of the National Assembly Committee on Agriculture, Land & Rural Development has been misquoted. Clarity is urgently required, especially given that public hearings on the draft Constitution 18th Amendment Bill are scheduled to begin next week.


2 March 2020

The purpose of nationwide public hearings on the draft Constitution 18th Amendment Bill is to hear from ordinary South Africans ‘how’ section 25 ‘should be worded’ to provide explicitly for expropriation without compensation for land reform purposes. This was confirmed in a media statement on Sunday’s hearings in Ermelo, Mpumalanga province. Quoting the ANC’s Bongani Bongo, the statement tends to suggest that some attendees were under a different impression. Bongo was speaking in his capacity as leader of a delegation of members of the National Assembly ad hoc committee responsible for developing the draft Bill, notes Pam Saxby for Legalbrief Policy Watch.

The statement is one of four released yesterday on public hearings conducted last weekend – the other three having taken place in Bloemfontein and Bethlehem, Free State province, as well as Middleburg, Mpumalanga. ‘Fruitful’ though they may well have been, the hearings appear to have been attended by many people simply wanting either to express their unreserved support for land expropriation without compensation – or their opposition to it. Against that backdrop, the statements mention only one proposal with implications for the wording of the amendment: that it should include ‘a cap on the size of land any individual should be allowed to own’.

More generally, there were calls for ‘the expeditious finalisation of the constitutional amendment’ given that – in the view of ‘some’ participants – ‘economic freedom … comes with land’. ‘Demands’ for the ‘equal distribution of mineral and other natural resources such as water’ were presumably made in that context. Government has yet to explain how these expectations will be managed.


4 March 2020

The National Assembly will this afternoon consider whether to extend to 30 May the deadline for finalising and introducing legislation amending section 25 of the Constitution to explicitly provide for expropriation without compensation as one measure for accelerating land reform, reports Pam Saxby for Legalbrief Policy Watch. This legislation will take the form of a Constitution 18th Amendment Bill, a draft of which was released in December for comment. The ad hoc committee responsible for preparing the Bill was originally given until 30 March to complete its work.

However, as Legalbrief Today has already reported, nationwide public hearings aimed at gleaning how ordinary South Africans would like the amendment worded are now scheduled to continue until 2 April – after which the committee will conduct parliamentary hearings on any oral representations stakeholders may wish to make in support of their written input. Members will then be briefed on these and the thousands of other written submissions received. Only then will they begin discussing the possibility of changing the wording of the amendment proposed in the draft Bill – informed by input from the entire public consultation process, along with any proposals political parties may choose to table. It will be left to the revised Expropriation Bill to spell out the circumstances in which land expropriation without compensation may be deemed justifiable.


5 March 2020

The ad hoc committee appointed in July 2019 to initiate and introduce legislation amending section 25 of the Constitution to provide explicitly for expropriation without compensation as one measure for accelerating land reform has been granted until 29 May 2020 to complete its work. This is noting that – as Legalbrief Today has regularly reported – the amendments are not likely to spell out the specific circumstances in which land and landed property may be legitimately expropriated without compensation. As a result, the draft Constitution 18th Amendment Bill released in December 2019 for comment and now being subjected to nationwide public hearings simply proposes a legal framework for expropriation without compensation for land reform purposes, notes Pam Saxby for Legalbrief Policy Watch. President Cyril Ramaphosa confirmed last month in his State of the Nation Address that the details will be left to a revised Expropriation Bill – which ‘government stands ready … to table’ ‘following the completion of the parliamentary process to amend section 25 of the Constitution’.

The order paper circulated on Wednesday for yesterday afternoon’s National Assembly sitting proposed 30 May as the new deadline for tabling the necessary Bill in Parliament. However, the version posted on Parliament’s website reflects the date since carried unopposed. It is quite possible that, with 29 May falling on a Sunday, the Bill will be tabled on or before 27 May in anticipation of being considered and adopted by the House on Tuesday 31 May. At this stage, however, no plenary has been scheduled for that day.

Recent committee media statements on the public hearings tend to suggest that many participants do not understand the process, as Legalbrief Today has also reported. Against that backdrop, it might be helpful if the Government Communication Information System website and any others regularly visited by ordinary South Africans would feature a summary of the process thus far, which has unfolded as follows:

  • February 2018: Parliament establishes a joint constitutional review committee to ‘investigate possible amendments to Section 25 of the Constitution’ to provide explicitly for land expropriation without compensation, and to hold nationwide public hearings on the need for/desirability of such amendments.

  • December 2018: Informed by the outcome of these hearings, the National Assembly agrees that section 25 of the Constitution should be amended ‘to make expropriation of land without compensation more explicit’.

  • December 2018: An ad hoc committee is established by the National Assembly ‘to initiate and introduce legislation – before the end of the fifth Parliament – to amend section 25 of the Constitution so that (the) expropriation of land without compensation is made explicit, as a legitimate option for land reform’.

  • March 2019: The committee concedes that it will not be able to fulfil its mandate before South Africa’s 5th democratic Parliament rises for May’s general elections.

  • July 2019: South Africa’s 6th democratic Parliament establishes a new ad hoc committee mandated to introduce the necessary legislation by 31 March 2020.

  • December 2019: The committee invites members of the public to comment by 31 January 2020 on a draft Constitution 18th Amendment Bill.

  • December 2019: the draft Bill is gazetted.

  • January 2020: The committee extends its deadline for written submissions on the draft Bill to 29 February.

  • February 2020: In his State of the Nation Address, President Cyril Ramaphosa confirms that a revised Expropriation Bill (to be tabled in Parliament once the committee has completed its work) will prescribe ‘the circumstances under which expropriation of land without compensation would be permissible’.

  • February 2020: Provincial public hearings on the draft 18th Constitution Amendment Bill begin.

  • March 2020: The provincial public hearings continue.

  • March 2020: The committee finalises its schedule for the remaining public hearings.

  • March 2020: The deadline for introducing the Constitution 18th Amendment Bill is extended to 29 May 2020.

Since the Constitution 18th Amendment Bill will likely focus on the legal framework for expropriation without compensation – leaving the details to the revised Expropriation Bill – it might also be helpful for the same websites to explain how the process of developing the Expropriation Bill unfolded.

  • March 2013: A draft Expropriation Bill is gazetted for comment.

  • February 2015: The Expropriation Bill is tabled in Parliament.

  • May 2016: The Bill’s ‘D’ version is passed by Parliament and sent to the President (then Jacob Zuma) for signature.

  • February 2017: The President sends the Bill back to Parliament, citing concerns about the consultation and public participation process.

  • July 2018: President Cyril Ramaphosa announces the ANC’s national executive committee decision to introduce expropriation without compensation as one measure for accelerating land reform (TimesLIVE).

  • September 2018: The Expropriation Bill is withdrawn from Parliament.

  • December 2018: A draft revised Expropriation Bill is gazetted for public comment.

  • December 2019: A media statement on Cabinet’s final meeting for the year announces that the draft Bill has been further revised and will be released for another round of public comment.

  • February 2020: In his State of the Nation Address, President Cyril Ramaphosa announces that ‘government stands ready’ to table the Expropriation Bill in Parliament once the committee has completed its work.

9 March 2020

Public hearings on the draft Constitution 18th Amendment Bill continued at the weekend – although media statements on the proceedings once again point to misunderstandings about their purpose. As Legalbrief Today has regularly reported, it is to elicit suggestions on possible improvements to the wording of amendments to section 25 of the Constitution with the aim of explicitly providing for expropriation without compensation as one measure for accelerating land reform in the public interest. Yet, notes Legalbrief's Pam Saxby, press releases on recent hearings in Vryheid, Mafikeng and Schweizer Reneke tend to suggest the process is simply providing ordinary South Africans with another opportunity to express and justify their support for/opposition to land reform by way of expropriation without compensation.

According to National Assembly ad hoc committee chair Mathole Motshekga, the ‘outcry’ for this measure points to ‘a great need for land’ – which hearings during 2018 on the desirability of amendments to section 25 of the Constitution had already established. Only in Vryheid did participants suggest how the wording of the draft Bill might be improved. During the same hearings, the ANC’s Bongani Bongo urged South Africans to be ‘patient with the law-making process’. Speaking in his capacity as leader of the committee delegation in attendance, he emphasised the importance of ensuring that ‘Parliament responds to the call of the people adequately’. His remarks may have been made in the context of input on the ‘failure’ of the ‘willing buyer, willing seller’ approach to land restitution – which one participant blamed on ‘lack of resources’ for the necessary farming equipment.

Meanwhile, the committee has chosen not to accede to an Institute of Race Relations request for a postponement of the hearings until ‘the risks from Covid-19 have conclusively been countered’. In the committee’s view, ‘at this stage ... it would not be in the best interest of SA to halt or postpone the public hearings’, although the decision will be reconsidered ‘if the need arises’. Motshekga and his committee believe that, given the numerous assurances from Health Minister Zweli Mkhize that his department has the necessary measures in place ‘to detect, manage and contain any cases of the Coronavirus’, there is no need for ‘panic’. They have urged South Africans ‘not to be deterred from participating’ in the remaining hearings, which are scheduled to resume on Thursday in Tshwane.


16 March 2020

All remaining public hearings on the draft Constitution 18th Amendment Bill have been postponed until further notice (SAnews) – in keeping with measures announced on Sunday by President Cyril Ramaphosa with the aim of containing the spread of Covid-19. According to a public hearings programme published on 3 March, only Limpopo province and the Western Cape will be affected. Hearings have already been conducted as planned in SA’s other seven provinces. In the circumstances, notes Pam Saxby for Legalbrief Policy Watch, an extension to the new 29 May deadline for tabling the Bill in Parliament cannot be ruled out.

Meanwhile, the ‘hundreds of people’ who have attended each session thus far have made the ‘urgent’ ‘need for land’ very clear (SAnews). This is according to Mathole Motshekga, who chairs the National Assembly ad hoc committee responsible for drafting and introducing legislation amending section 25 of the Constitution to explicitly provide for expropriation without compensation, as one measure for accelerating land reform in the public interest.


18 March 2020

Recent public hearings in Gauteng on the draft Constitution 18th Amendment Bill led ad hoc committee delegates to conclude that ‘the majority of (the province’s) residents overwhelmingly supported’ the proposed new piece of legislation. This is according to a media statement on hearings conducted in Germiston, Soshanguve, Westonaria and Vereeniging – when participants ‘called on Parliament to speedily conclude the process of amending section 25 of the Constitution’ to provide explicitly for expropriation without compensation in order to accelerate land reform in the public interest, reports Pam Saxby for Legalbrief Policy Watch.

Participants in the Germiston hearings ‘told the committee that the poor will remain poor if section 25 is not amended’, being of the view that only expropriation without compensation will ‘unblock access to land’ for desperately needed housing and ‘economic development initiatives … aimed at alleviating the scourge of poverty, rising unemployment and deepening inequality’. In that context, some participants specifically referred to the need for justice in respect of land ‘violently taken from its rightful owners’ – sentiments apparently echoed during hearings held in Soshanguve, Westonaria and Vereeniging. The cut-off date for land to be ‘considered for expropriation’ was also raised given that, in the view of the participants concerned, land has been ‘forcefully and violently taken from its rightful owners (ever) since the arrival of settlers in 1652 at the Cape of Good Hope’. At the other end of the public opinion spectrum, opposition to the draft Bill appears to have been prompted by concerns about the procedures to be followed in expropriating land; ‘how beneficiaries will be supported to ensure that land … (is) utilised productively’; and ‘failed land expropriation programmes in other countries’.

Similar views in support of and opposition to the draft Bill were expressed during the Eastern Cape leg of the public hearings programme, when the committee delegation responsible visited Tsolo, Engcobo, King William’s Town and Port Elizabeth/Nelson Mandela Bay. The possibility of placing expropriated land under the custodianship of local traditional leaders was also raised, according to a media statement on these hearings. However, most participants ‘called for the state to be the custodian of all SA’s natural resources’, including ‘land, mineral resources, forests, water and air’. The loss of dignity associated with land deprivation appears to have been an overarching concern. As in hearings conducted in other provinces, the prospective beneficiaries of expropriated land emphasised the importance of receiving ‘support’ in the form of skills training and the financial resources necessary to ‘work (it) productively’. The draft Bill’s detractors tended to be concerned about its negative impact on food security and ‘investor confidence’. This was noting the failure of existing land reform programmes and the associated ‘problem of corruption’.

Neither committee statement refers to input on the wording of the proposed amendment to section 25 of the Constitution, despite nationwide public hearings having been arranged explicitly to hear the views of ordinary South Africans on the draft Bill’s contents. Hearings in provinces not yet visited by committee members have been postponed in keeping with measures introduced on Sunday to contain the spread of Covid-19.


23 May 2020

The National Assembly’s ad hoc committee on amending section 25 of the Constitution to explicitly provide for land expropriation without compensation in specific circumstances agreed on Friday evening to ask for more time to complete its work, notes Pam Saxby for Legalbrief Policy Watch. This is noting that, before the Covid-19 State of Disaster, the committee was expected to have tabled the necessary Constitution 18th Amendment Bill in the House by 29 May. According to a YouTube clip of Friday’s virtual meeting, a letter will be sent to the Speaker requesting an extension ‘until such time as the situation in the country’ allows the committee to resume the public consultation process. Nationwide hearings on a draft Bill released last December for comment had almost been completed when those arranged for the Western Cape and Limpopo province were postponed. At the time of writing, the committee had yet to publish a media statement on the meeting. However, the request is likely to be considered at the National Assembly’s first virtual plenary, scheduled for 15:00 on Wednesday.


1 July 2020

The re-established National Assembly ad hoc committee responsible for developing the draft Constitution 18th Amendment Bill to explicitly provide for land expropriation without compensation in yet-to-be-specified circumstances has until 31 December to complete its work. According to the media statement announcing this on Tuesday (but only posted on Parliament’s website yesterday morning), the committee was established last July ‘to clarify parts of the Constitution that speak to, among others, the expropriation of land without compensation as a legitimate option for land reform to address the historic arbitrary land dispossession of the majority of South Africans’, notes Pam Saxby for Legalbrief Policy Watch.

In the absence of an electronic version of minutes of the 25 July 2019 National Assembly sitting at which the committee was appointed, the order paper is the only available public record of its mandate. At the time, the motion was that the House should ‘urgently establish a mechanism to effect the necessary amendment to the relevant part of section 25 of the Constitution’ – having ‘regard to the work done and recommendations … in the reports of the Constitutional Review Committee and the previous ad hoc committee’, which ‘could not complete its task by the time of (the) dissolution of the fifth Parliament’. According to the order paper, this task was 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 (government’s) agricultural reform programme’.

As things now stand, the draft Bill simply seeks to enable expropriation with nil compensation for land reform purposes in circumstances to be specified in national legislation. This is widely expected to be the revised Expropriation Bill, which was released in draft form in December 2018 for comment and has not been heard of since. Not once has a member of the ad hoc committee or its chair, Mathole Motshekga, referred to it by name – as Parliamentary Monitoring Group sound recordings of the meetings concerned confirm. Neither has it been expressly mentioned by the committee’s parliamentary legal adviser, Charmaine van der Merwe. However, DA representatives in the committee and FF Plus MP Corné Mulder have repeatedly called for the specific circumstances in which land might justifiably be expropriated for nil compensation to be included in the amendment to section 25. These deliberations took place before the draft Bill was published for comment – and on the understanding that, given then prevailing time constraints, the draft Bill should be released as it was and the issue revisited after nationwide public hearings on its contents.

These hearings had almost been completed when Covid-19 State of Disaster measures prompted the postponement of those arranged for the Western Cape and Limpopo province – along with all other committee activities. Committee media statements on the proceedings nevertheless pointed to the distinct possibility that most participants misunderstood their purpose, which was to elicit suggestions on possible improvements to the wording of the amendments proposed. Instead, the process appears to have done little more than allow ordinary South Africans yet another opportunity to express and justify their support for/opposition to land reform by way of expropriation without compensation, as Legalbrief Today reported at the time.

According to this week’s statement from Parliament and a minute of proceedings at Tuesday’s National Assembly sitting, the committee has been re-established ‘with the same composition and powers as its predecessor and instructed … to incorporate in its work the proceedings and all the work of the previous committee until its term expired’. On 29 May, the ANC’s Mathole Motshekga (in his capacity as chair of the expired committee) assured ordinary South Africans that its work had not been ‘in vain’ and would ‘continue where it left off’ once the committee was ‘revived’. Thanking everyone concerned for ‘participating constructively in the process thus far’, Motshekga said the committee had ‘received feedback from a wide variety of people with different viewpoints on this very emotive matter’ during public hearings that were ‘well attended’ and in which ‘everyone who wanted to speak was allowed the opportunity, in the spirit of a participatory democracy’. How this will be managed virtually in the Western Cape and Limpopo province remains to be seen.


17 September 2020

There have been no further announcements on the process of developing legislation to amend section 25 of the Constitution to expressly allow for expropriation without compensation as a legitimate instrument of land reform, reports Legalbrief's Pam Saxby. The ad hoc committee concerned was scheduled to meet on Tuesday to consider a draft programme for the remainder of its work – but the meeting as cancelled and, at the time of writing, had yet to be rescheduled. Re-established in June after its term expired, the committee now has until the end of this year to finalise and introduce the Bill, which was released in draft form last December for comment and has since been the focus of public hearings in seven provinces. Hearings in the Western Cape and Limpopo province were cancelled when the Covid-19 State of Disaster was declared, as Legalbrief Today has regularly reported.

Under lockdown level one, according to President Cyril Ramaphosa it will be possible for more than 50 people to gather if a suitably large venue is found to accommodate them in half its available floor space – without compromising physical distancing requirements. This should remove any remaining obstacles to concluding the public hearings programme. Once that has been accomplished, all written submissions and oral representations will need to be collated, analysed and the draft Bill revised to reflect any recommendations deemed appropriate. It is at this point in the process that political parties represented in the committee will formally table their positions. As Legalbrief Today reported at the time, this was agreed at a meeting on 5 December 2019, shortly before the draft Bill was released for comment.

As things now stand, the draft Bill simply seeks to enable expropriation with nil compensation for land reform purposes in circumstances to be specified in national legislation. However, DA representatives in the committee and FF Plus MP Corné Mulder have repeatedly called for the amendment to section 25 to list the specific circumstances in which land might justifiably be expropriated for nil compensation. Among other things, they are concerned that less explicit amendments to the framework legislation could allow property rights in respect of land to be whittled away over time in piecemeal amendments to national legislation. This is noting that amendments to the Constitution require the support of two-thirds of the House – while only 50% is necessary for the adoption of amendments to national legislation.


8 October 2020

The draft Constitution 18th Amendment Bill public hearings programme is expected to resume on 22 October in Limpopo province, on 23 October in the Northern Cape and on 30 October in the Western Cape. This, reports Pam Saxby for Legalbrief, was agreed yesterday at a meeting of the committee responsible for preparing the proposed new piece of legislation, which seeks to provide explicitly for land expropriation without compensation where this would be in the public interest for land reform purposes. Suspended when the Covid-19 State of Disaster was declared, the hearings appeared to have been concluded in all but two provinces: Limpopo and the Western Cape. However, yesterday’s meeting confirmed that stakeholders in the Northern Cape have yet to be given an opportunity to make oral representations on the draft Bill’s contents.

Given limits on the number of people permitted to gather in terms of the disaster management regulations for lockdown level one, morning and afternoon hearings are planned for each venue. This is noting that the average attendance at pre-epidemic sessions appears to have been at least 400 people. Parliament’s legal advisers will be approached for a view on how best to accommodate stakeholders vulnerable to the virus without compromising the process. Against that backdrop, at this stage hearings are planned for Vhembe, Polokwane, Sekhukhune and Waterberg in Limpopo province (with two more to cater for the Mopani district at a venue yet to be identified). In the Northern Cape, hearings will take place in Kimberley, Upington and Springbok. In addition to hearings in Mossel Bay, Worcester, Saldana Bay and Khayelitsha, the committee intends catering for residents in the Karoo and Overberg districts at venues yet to be identified. The entire public hearings programme is expected to have been completed by 1 November.

According to a media statement on yesterday’s meeting, between 3 and 6 November the committee will consider reports on hearings conducted across all nine provinces before beginning further ‘deliberations on the amendments’ envisaged. This is noting that – as Legalbrief Today has already reported – the National Assembly has extended the lifespan of the committee until the end of this year, by which time the fine-tuned Bill is expected to have been formally tabled.


2 November 2020

Very few participants in two of Saturday’s public hearings on the draft Constitution 18th Amendment Bill expressed views on the wording of the amendment. Yet this was the purpose of each hearing, as a media statement on one held in Khayelitsha on Saturday confirms. Among other things, a press release on proceedings during a hearing the same day in Worcester notes, that – despite participants having been ‘urged’ to focus on the ‘form and content’ of the amendment proposed – the opportunity was used instead to express frustration with the time being taken to redistribute land and ‘decolonise’ SA. In Khayelitsha, it was used by most participants to draw attention to ‘reasons to expropriate land’ rather than the contents of the draft Bill, notes Legalbrief's Pam Saxby.

Although this has tended to be a trend throughout the nationwide public participation process, during a hearing in Saldana Bay on Friday concrete proposals were made on the wording of the amendment. According to a press release on these proceedings, one was that ‘the state should be the custodian of all SA’s natural resources, inclusive of land, mineral resources and water’ and that ‘relevant legislation should be passed to clearly define and contextualise (such) custodianship’. ‘Several residents’ made a similar proposal during the Khayelitsha hearing. Interestingly, representatives of Khoisan communities in the areas concerned appear to have articulated differing views on the need for an amendment. Only the media statement on input during the Saldana Bay hearing refers to perceptions on the part of some participants that land expropriation without compensation could impact negatively on property values and food security. Linkages with a ‘law of general application’ were also mentioned during this hearing – presumably referring to the revised Expropriation Bill now before Parliament.


8 November 2020

By amending section 25 of the Constitution to explicitly provide for expropriation without compensation, the Constitution 18th Amendment Bill will be Parliament’s ‘greatest victory’ – and ‘a lasting solution’ to ‘the triple challenges of poverty, unemployment and inequality’. ‘The people have spoken’. This is according to a media statement issued by the ad hoc parliamentary committee responsible for preparing the proposed new piece of legislation. Headed, ‘Countrywide public hearings on expropriation of land without compensation wrapped up in Polokwane’, it draws attention to key aspects of input made by participants in Saturday’s public hearing on a draft Bill released last December for comment. As has generally been the case, notes Legalbrief's Pam Saxby, the ‘majority’ view was that ‘the expropriation of land without compensation is long overdue’ and will ‘improve (prospects for) social and economic transformation’. ‘Many’ nevertheless want ‘all natural resources’ owned by the state. ‘Some’ believe the process of land expropriation without compensation should begin in urban areas, by bringing housing opportunities closer to places with significant employment prospects.

Held in Polokwane, Saturday’s hearing was the last in a nationwide programme begun in February, suspended during the strictest levels of Covid-19 lockdown and resumed last month. It was originally scheduled to take place on 25 October but was cancelled following a scuffle between ANC and EFF supporters, as Legalbrief Policy Watch has reported elsewhere. At the time, writing for the Daily Maverick, Lucas Ledwaba referred to the cancelled event as a ‘land expropriation hearing’ – inadvertently drawing attention to a change in the wording of committee media statements announcing each step in the process. During February and March, the hearings were advertised on Parliament’s website in statements headed with references to the committee’s mandate: to ‘amend section 25 of the Constitution’. During October, the focus of the headings changed to ‘hearings on land expropriation without compensation’. Yet, as committee press releases on the outcome of the hearings have regularly confirmed, their purpose was to provide opportunities for participants to express their views on the wording of the draft Constitution 18th Amendment Bill. Few attendees appear to have done so. Instead, as Legalbrief Today has already reported, throughout the nationwide programme hearings have been used to voice longstanding grievances about past injustices.

Although it is not clear why the headings changed, their references during October to hearings on land expropriation tend to be misleading and may even have been misconstrued. A parliamentary summary of the process makes its purpose abundantly clear in the context of public consultations during 2018 on the merits or otherwise of amending section 25. This year’s hearings appear to have repeated the exercise, albeit unintentionally. It remains to be seen how ordinary South Africans will respond when yet another public participation process on this contentious issue is eventually announced – this time focusing on the revised Expropriation Bill now before Parliament. How many participants in hearings on the draft Constitution 18th Amendment Bill are aware of the Expropriation Bill’s significance as national legislation prescribing the circumstances in which land expropriation for nil compensation could be justifiable? How many are prepared to wait what could be years before the two Bills are operationalised? As Deputy President David Mabuza reportedly told the NCOP recently, ‘the expropriation of property with nil compensation is not a silver bullet. It is ... but one acquisition mechanism that, in appropriate cases, will enable land reform and redress’ (SAnews).


30 November 2020

The National Assembly ad hoc committee responsible for drafting the Constitution 18th Amendment Bill to provide explicitly for land expropriation without compensation is unlikely to complete its work by the end of the year, reports Pam Saxby. This emerged on Friday during a Programming Committee meeting. According to FF Plus representative on the both committees, Corné Mulder, ad hoc committee members have received a ‘92-page report’ on a recently concluded nationwide public participation process. However, meetings alleged to have been held on 23 and 24 November to consider the report did not take place. The Programming Committee expressed concern about the inaccuracy of the information received from the ad hoc committee, especially given the sensitivity of the issues concerned. It was in that context that Speaker Thandi Modise undertook to investigate the matter, conceding that an extension will need to be requested.

As Legalbrief Today has regularly reported, the final leg of provincial public hearings on a draft Bill released almost a year ago for comment was suspended when the Covid-19 State of Disaster was announced. It resumed last month and was concluded in Polokwane on 7 November. As far as can be ascertained, the ad hoc committee has yet to decide whether to conduct parliamentary hearings on written submissions received. This is noting that, when members met almost a year ago to finalise the draft Bill’s wording in anticipation of the ensuing eight-week public commentary period, it was agreed that political parties represented in Parliament and wishing to propose changes to the wording would have an opportunity to do so later in the process. At the time, as the proposed new law of general application, the revised Expropriation Bill was still being finalised. Eventually tabled last month, its sub-clause 12(3) lists the circumstances in which land expropriation for nil compensation might be justifiable.


7 February 2021

There appears to be no official parliamentary documentation confirming the status of proposals for another extension to the deadline by which a Constitution 18th Amendment Bill should be tabled in the House with a view to providing explicitly for land expropriation for nil compensation when this would be in the public interest. In the absence of minutes on resolutions taken during the National Assembly’s 3 December 2020 plenary, it is not clear if the House agreed on 31 March 2021. This is noting that, according to the order paper for that day, ANC chief whip Pemmy Majodina was scheduled to move a motion to that effect. Pam Saxby writes that the proposal was apparently prompted by discussions in Parliament’s Programming Committee about the cancellation of two meetings of the ad hoc committee tasked with preparing the Bill – when members were expected to consider a report on the nationwide public consultation process conducted with the aim of hearing the views of ordinary South Africans on a draft Bill gazetted in December 2019 for comment. The ‘92-page’ report has been with members for some time, according to FF Plus representative on the committee, Corné Mulder. However, the ad hoc committee last met on 2 November 2020 to discuss plans for the final provincial public hearing, which took place five days later in Polokwane.

According to Parliamentary Monitoring Group records of a meeting held by the ad hoc committee on 25 October 2019, the draft committee programme tabled and adopted that day was expected to be finalised in March the following year. This is confirmed in a media statement also noting the committee’s commitment to a public participation process that would provide opportunities for all views to be heard. In that regard, the draft programme included five successive days of ‘public hearings’ – presumably referring to those traditionally hosted by a committee with the aim of allowing stakeholders with the resources to do so to expand orally on their written submissions. Legalbrief Today has reported regularly on the impact of Covid-19 disaster management restrictions on the committee’s provincial public hearings. However, the process to be followed in considering written submissions received on the draft Bill it is still not clear – although the ‘92 page’ report to which Mulder referred may well include a summary of them.

The most recent framework programme for Parliament’s four terms this year makes no mention of a sitting to consider the Bill. The first constituency period for both Houses is scheduled to begin on 23 March, ending when National Assembly committees resume their work on 4 May, when Parliament’s second term is due to commence. Meanwhile, as Legalbrief Today has already reported, the specific circumstances in which nil compensation might be justified are proposed in a revised Expropriation Bill now before the National Assembly’s Public Works & Infrastructure Committee. The first phase of a comprehensive public consultation process on the entire Bill is already under way – the deadline for written submissions having recently been extended to 28 February. During the meeting at which this decision was made, attention was drawn to the extent to which many written submissions received thus far expressing opposition to the revised Bill focus on the clauses dealing with nil compensation – apparently overlooking the Bill’s overarching objective, which (according to the committee’s content adviser) is to provide for ‘a uniform administrative system to expropriate in the common and public good’. These observations point, once again, to apparently widespread confusion around the relationship between legislation being prepared to amend section 25 of the Constitution, the revised Expropriation Bill and the expectations and fears tending to be associated with each.


10 February 2021

The Constitution 18th Amendment Bill is expected to be ready for tabling in the National Assembly ‘by 19 March’. This is according to a media statement issued yesterday following a meeting of the ad hoc committee responsible for preparing the Bill, reports Legalbrief's Pam Saxby. Once passed by Parliament, it will amend section 25 of the Constitution to provide explicitly for expropriation without compensation for land reform purposes. With the 19 March deadline in mind, the committee intends meeting ‘at least twice a week’. A Parliamentary Monitoring Group audio recording of yesterday’s proceedings has confirmed that – given other committee commitments and party political obligations – some members may be required to juggle their timetables to avoid ‘clashes’. However, having gone to considerable lengths to reassure members that ‘inputs’ from ‘all political parties represented on the committee’, regardless of size, are important and will be ‘treated equally’ (including those relating to logistical arrangements), committee chair Mathole Motshekga suggested they liaise with the committee secretary and with Motshekga himself should it become difficult to participate fully in the process of finalising the Bill once it begins in earnest. This was especially noting the relevance of the process and the Bill to what the statement refers to as the ‘build or break’ for SA ‘land question’.

During yesterday’s proceedings, members also requested ‘access to the volumes of written submissions’ on a draft of the Bill gazetted in December 2019 for public comment. The audio recording has confirmed that they have been summarised in a report on the entire public participation process sent to members shortly after the conclusion of provincial public hearings in November 2020. However, it is not clear if submissions have already been made by political parties represented in the committee and if they, too, are summarised in the report. Nobody present at the meeting referred to the matter or to the possibility of parliamentary hearings, which are traditionally used to give stakeholders who have already made written submissions on a piece of proposed new legislation the opportunity to expand on them. However, Motshekga’s repeated assurances throughout the process thus far – expressly reaffirmed at yesterday’s meeting – tend to suggest that, at this stage, more parliamentary hearings have not been completely ruled out. This is especially noting a reference in the statement to his remarks about the importance of taking account of ‘the aspirations of all South Africans, black and white’. At the time of writing, the committee programme adopted at the meeting had yet to be made electronically available.


12 February 2021

The principals of political parties represented in the ad hoc committee established by the National Assembly to prepare the Constitution 18th Amendment Bill will be consulted before committee members deliberate on and eventually consider whether to adopt the public participation process report or decide to amend it. This, notes Pam Saxby, was agreed on Friday, when the report was formally tabled in the committee and members were briefed on its contents. During the meeting, one DA representative on the committee, Annelie Lotriet, expressed concern that, since she only received the report last week, more time was required to prepare for deliberations on its contents. It emerged later that neither did the ACDP’s Wayne Thring receive the report when it was circulated in November 2020. Since FF Plus representative Corné Mulder was not present on Friday, he was unable to confirm that his own copy arrived in time for him to comment on the matter during a meeting of the National Assembly’s Programming Committee that month.

Administrative and logistical challenges notwithstanding, Lotriet, her colleagues in the DA and any other committee members whose copies of the report were delivered late or not at all now have access to it. They also have access to the approximately 20 written submissions received on a draft Bill released in December 2019 for comment. A cross-section of committee members having attended each of the provincial public hearings, in Lotriet’s view the proceedings were adequately ‘monitored’ and the committee is therefore well placed to ‘verify’ the report’s accuracy in that regard. However, in her view, all committee members have a ‘constitutional duty’ to ensure that the report now before them accurately reflects the contents of written submissions on the draft Bill.

Lotriet made these observations noting perceptions in certain quarters that some submissions were excluded from a report on the 2018 public participation process. This focused on the desirability of amending section 25 of the Constitution to expressly provide for expropriation for nil compensation as one instrument of land reform. In her view, such value judgments should not be left to committee administration. Interestingly, despite having accused Lotriet and her party of ‘frivolous’ attempts at ‘delegitimising’ the process now under way, EFF representative Floyd Shivambu eventually conceded that it would serve no useful purpose to ignore their concerns. In his view, the outcome of the process will be what the ANC deems necessary and appropriate anyway, regardless of DA perspectives on the report’s accuracy.

Against that backdrop – and bearing in mind that, when the committee meets to adopt the report, it may decide that amendments are required – the summary presented to committee members on Friday drew attention to a plethora of concerns, expectations and ongoing injustices not necessarily related to proposals in the draft Bill itself. The contents of a media statement on the meeting tended to point to this, as did committee statements issued last year on each leg of the provincial public hearings programme. As Legalbrief Today reported at the time, most input during the hearings focused on stakeholders’ reasons for supporting or opposing any amendment to section 25 of the Constitution to expressly provide for land expropriation for nil compensation. Friday’s summary tended to suggest that the same applies to the written submissions received.

However, in presenting the summary, the committee’s content adviser, Thulisile Ganyaza-Twalo, did mention some comments with possible implications for the draft Bill’s preamble and clauses, namely that:

  • the term ‘land reform’ under sub-section 25(4) should be more clearly defined to avoid being interpreted too broadly by the courts

  • provision should be made for a limitation on the amount of land owned by any individual

  • provision should be made for expropriation with nil compensation in respect of any water resources associated with the land concerned, and that

  • provision should be made for expropriation with nil compensation in respect of any mining rights associated with the land concerned.

The summary also pointed to widespread perceptions about gaps in other administrative processes and some legislation affecting the potential for land expropriation without compensation to improve the lives of ordinary landless South Africans in general; those of landless women and youth in particular; and SA’s food security situation.


19 February 2021

The draft Constitution 18th Amendment Bill public participation process report requires more work before it can be considered and adopted by the National Assembly ad hoc committee concerned. Legalbrief's Pam Saxby writes that this emerged during Friday’s meeting, when several ANC representatives on the committee expressed concern about the extent to which aspects of the report perceived to be interpretive and analytical could be misconstrued as having been written with a particular outcome in mind. As one example, the ANC’s Vusumuzi Xaba drew attention to a chapter apparently headed ‘contraventions of the Constitution and international law’ in which legal opinions were cited and ‘strong assertions’ made, among other things regarding ‘the permanent sovereignty of natural resources’ and the draft Bill’s implications for the supremacy of the Constitution. Xaba also alluded to possible shortcomings in transcriptions of the provincial public hearings, which he believes may not have been interpreted correctly.

While it is not clear who authored the document, according to its presenter, Thulisile Ganyaza-Twala, sections including ‘legal analysis’ were drawn entirely from written submissions. These had apparently not been appropriately referenced. This will be addressed, and a revised report circulated in time for the committee’s next meeting. In that regard, committee chair Mathole Motshekga made it clear that the report ‘must’ be adopted this week lest the process of deliberating on and finalising the Bill itself be unnecessarily delayed. Its final version is expected to be ready by 19 March for tabling in the National Assembly, whose members are nevertheless scheduled to begin a constituency period on 23 March – four days after the final plenary sitting of the House for this term. According to the latest programme, it will focus on the 2020 Division of Revenue Bill and a debate on human rights day.

As a media statement on Friday’s meeting has since confirmed, Motshekga also reminded members of a decision two weeks previously regarding access to written submissions on the draft Bill, which were then circulated. This followed remarks from the DA’s Glynnis Breytenbach once again indicating her unwillingness to consider a report without sight of the written submissions themselves. Neither, it seems, had the ANC’s Xaba (new to the committee) seen them. Breytenbach’s colleague, Noko Msipa (a new DA representative on the committee) appeared to be under the impression that there are thousands. However, during a meeting the previous week members were told there are approximately 20 – as Legalbrief Today has also reported. Nobody commented on Msipa’s question about allowing the authors of written submissions the opportunity to expand on them by way of parliamentary hearings.

Input during the committee’s three meetings this year has tended to suggest that very few members have begun reading the public participation report in earnest, despite its having been circulated in November 2020. At the time, Parliament was still in cession. This points to gaps in communication not only with committee support staff but also between committee members within their respective political parties. Sensitivities around the issues at play notwithstanding, the length of the report (92 pages, according to FF Plus representative on the committee, Corné Mulder) and the complexities underpinning the process of determining the accuracy of its contents appear to have been underestimated.

Meanwhile, a difference in opinion between two parliamentary units on the source of funding for a revamped media campaign on the Expropriation Bill public participation process could undermine its potential to be effective at grassroots level. This emerged during a National Assembly Public Works & Infrastructure Committee meeting last week, when its secretary, Nola Matinise, reported the problem towards the end of deliberations on a raft of other matters. By then, the DA’s Samantha Graham-Maré may have left, which would explain why her media statement on the issue overlooked committee chair Nolitha Ntobongwana’s undertaking to approach the managers concerned directly. However, her colleague, Madeleine Hicklin, was present. Given that, at the time, only 11 days of the public commentary period remained, another extension may be needed if the campaign is eventually operationalised. Its purpose was to raise awareness of the Bill’s objectives and the new deadline for written submissions, which expires on Sunday.


26 February 2021

No oral representations on the draft Constitution 18th Amendment Bill will be heard from stakeholders who have ‘already made written submissions’. This was announced on Friday in a media statement issued by the National Assembly ad hoc committee responsible for preparing the Bill. Discussions on the matter during Friday’s meeting appear to have been prompted by a request from the Banking Association of SA, which is nevertheless the only organisation to have expressly asked recently for an opportunity to give oral evidence before the committee, reports Pam Saxby.

According to the statement, the public participation process ‘elicited more than 200 000 submissions’. However, input during Friday’s meeting tended to suggest that this number includes the signatories to petitions. When the public participation report was presented to the committee on 12 February, it referred to approximately 20 written submissions, as Legalbrief Today reported at the time. It is unclear how many respondents included on their submissions requests for an opportunity to appear before the committee.

During Friday’s meeting, FF Plus representative Corné Mulder strongly advised against a decision to ignore such requests had any been made. This was noting that it has long been the custom for committees to hold parliamentary hearings, allowing organisations across the full spectrum of civil society to elaborate on and explain their positions. In Mulder’s view, not to do so ‘would set a new precedent’ and could compromise the entire process, possibly even casting doubt on its ‘technical’ legality.

Responding to this, the EFF’s Floyd Shivambu drew attention to the comprehensive public participation process conducted in 2018 by the Constitutional Review Committee. According to Parliamentary Monitoring Group records, oral evidence was heard over four days from organisations wishing to substantiate the contents of their written submissions on the desirability or otherwise of amendments to section 25 of the Constitution. With that in mind, in Shivambu’s view ‘there has never been a more thorough or deeper consultation process’ – and the position of any interest group likely to have requested yet another opportunity to present oral evidence has probably already been heard ‘exhaustively’.

On 10 February, all political parties represented in the committee and in attendance that day adopted a programme clearly making no provision for parliamentary hearings. Neither Mulder nor an FF Plus alternate was present. However, although several DA representatives were, not one of them drew attention to the absence of an opportunity for stakeholders who had made written submissions to present oral evidence. It was left to a new DA representative on the committee, Noko Masipa, to do so last week. The party has since issued a press release objecting to the decision.

Consensus on the programme during the 10 February meeting may explain the rationale behind Friday’s announcement. Whatever the case, the committee has agreed to postpone its adoption of the public participation report by another week, allowing support staff to make several changes requested during the meeting. Members are also expected to be briefed next week by parliamentary legal services on any matters arising from written submissions. The process of finalising the Bill for tabling in the National Assembly will then begin in earnest, informed by the report – which is described in the statement ‘as a living resource document’.

At the time of writing, there had been no further announcements from the National Assembly’s Public Works & Infrastructure Committee on its efforts to facilitate input on the revised Expropriation Bill from South Africans without access to the Internet. As a result, it can only be assumed that the deadline for written submissions remained 28 February.


8 March 2021

The National Assembly will soon be approached to extend the deadline by which a Constitution 18th Amendment Bill is to be tabled in Parliament expressly with the aim of providing for expropriation without compensation for land reform purposes. This will allow time for members to hear oral evidence from those who, before the expiry of the 31 January 2020 deadline for written submissions, requested opportunities to appear before the committee. These decisions, notes Legalbrief's Pam Saxby, were made during Friday’s meeting of the ad hoc committee tasked with preparing the proposed new piece of legislation and were later confirmed in a media statement. In the light of a presentation the previous evening from parliamentary legal services, members agreed unanimously that, given the ‘substantive issues’ raised, input from the stakeholders concerned would further enrich the process.

With that in mind, the committee’s support staff were asked to prepare a list of organisations and individuals who had originally requested opportunities to present oral evidence to the committee; and to propose changes to the committee programme to accommodate this. The committee’s approach to the House for an extension will be informed by the most realistic timeframe in which it can now be expected to fulfil its mandate. This is noting the significance of issues brought to members’ attention on Thursday evening; and the need for permission to work during the upcoming parliamentary recess, which includes several public holidays.

During Thursday’s meeting, committee chair Mathole Motshekga notified members of a letter from the DA expressing reservations about the constitutionality of decisions made at a meeting held on 26 February. According to a Parliamentary Monitoring Group audio clip of Thursday’s proceedings, the letter elaborated on a press release issued by Annelie Lotriet the previous week on a decision not to provide opportunities for oral evidence in support of written submissions (a matter on which Legalbrief Today reported at the time). It may have been in the context of the letter’s contents that the EFF’s Floyd Shivambu proposed that oral representations be heard lest a decision to the contrary be used by ‘right wing’ parties to derail the entire process in court. No further discussions took place on the issue, the meeting having been called so that members could be briefed by parliamentary legal services on the legal implications of some written submissions – and to consider the public participation process report.

According to parliamentary legal adviser Charmaine van der Merwe, written submissions on the draft Bill included a significant number of comments on policy matters, reservations about the public consultation process itself, and issues raised in the context of a revised Expropriation Bill now before Parliament. Regarding input with drafting implications, Van der Merwe and her colleague, Telana Halley-Starkey, drew the committee’s attention to:

  • the difference between ‘nil compensation’ and ‘without compensation’ (in Van der Merwe’s view ‘nil compensation’ would be preferable)

  • the definition of ‘land reform’ (the committee was asked to consider whether it should be broadened to reflect provisions in sub-section 25(8) of the Constitution)

  • the draft Bill’s references to expropriation with nil compensation in the context of improvements to land (the committee was asked to consider the possibility of removing these references, which would be in line with the Constitutional Review Committee report)

  • the need for clarity on the decision-making role of the courts, and

  • whether the Bill should include a closed list of circumstances in which land expropriation for nil compensation would be justifiable.

In Halley-Starkey’s view, concerns that the proposed new piece of legislation breaches SA’s obligations under international law are unfounded. With that in mind, she unpacked and refuted arguments in some written submissions opposing the draft Bill based on:

  • the Universal Declaration of Human Rights, Article 17 (property)

  • UN Resolution 1803 (1962) (permanent sovereignty over natural resources)

  • UN Resolution 3281 (1974) (Charter of Economic Rights & Duties of States)

  • the Southern African Development Community Treaty, Article 4(c) (human rights, democracy and the rule of law)

  • the UN Conference on Trade & Development series on issues in international investment agreements

  • the US African Growth & Opportunity Act

  • the European Convention on Human Rights, Protocol 1 (protection of property), and

  • the International Convention on Civil & Political Rights.

Halley-Starkey also argued that, contrary to allegations in some written submissions, the draft Bill neither seeks to undermine the rule of law and the supremacy of the Constitution nor to ‘oust the jurisdiction of the courts’. However, she chose not to comment on concerns expressed by some stakeholders that the draft Bill could be in breach of section 10 of the 2015 Protection of Investment Act (dealing with the legal protection of investment). In her view, given its policy implications, this falls outside the mandate of parliamentary legal services.

As a ‘living resource document’, the public participation process report will only be adopted once it has been amended to reflect input heard by way of oral submissions.


12 March 2021

The Constitution 18th Amendment Bill and related committee report are now expected to be adopted on 14 and 21 May respectively in anticipation of being tabled in the National Assembly. This, reports Pam Saxby, was provisionally agreed on Friday at a meeting of the ad hoc committee tasked with amending section 25 of the Constitution to provide explicitly for expropriation without compensation for land reform purposes. However, the House has yet to be approached for permission to proceed as proposed and to meet as required during the upcoming parliamentary recess. Meanwhile, members have agreed to recommendations from committee support staff that 21, 24 and 25 March be set aside for oral submissions on the draft Bill – and 19 March for presentations from three national departments. According to a draft revised programme supporting the committee’s request for a third extension to the deadline by which it should complete it task, these are the Departments of Public Works & Infrastructure, Agriculture, Land Reform & Rural Development and Justice & Constitutional Development.

The agreements reached on Friday have since been broadly confirmed in a media statement also referring to formal requests to appear before the committee received from certain organisations during the draft Bill’s public commentary period. However, according to committee support staff only the Banking Association of SA, AfriForum and Cosatu asked for an opportunity to make oral submissions. The statement’s reference to Black Land First, AgriSA and the Congress of Traditional Leaders of SA appears to have been made in the context of input from members, some of whom recalled having noticed requests from these parties while perusing the written submissions. This is noting the committee’s decision to hear oral evidence only from stakeholders who – during the extended public commentary period – expressed an interest in appearing before the committee.

Against that backdrop, the list of interested and affected parties expected to make oral submissions this month will be finalised once the committee’s support staff have cross-checked records of formal requests to do so with a list the DA’s Annelie Lotriet believes was compiled early last year, when a programme for the remainder of the committee’s work at the time was adopted. Lotriet has mentioned the list before. However, while there are no official minutes of the meetings to which she referred, her recollection of proceedings appears to differ from that of committee support staff, who can find no such list. The minutes of parliamentary committee meetings tend to be considered and adopted in batches, and Covid-19 lockdown measures may have interfered with this process.

According to Parliamentary Monitoring Group audio recordings of committee meetings on the 30 January and 4 February 2020 (when the revised programme to which Lotriet referred was discussed and adopted), no list was mentioned. However, to ‘facilitate discussions’, committee secretary Vhonani Ramaano did propose on 30 January that 17 to 22 March 2020 be set aside for oral submissions in Parliament. In the context of a decision that day to extend the deadline for written submissions from 31 January to 29 February 2020, on 4 February it was envisaged that 17 March would be reserved for the South African National Interfaith Council and the following two days for other stakeholders wishing to present oral evidence. This was noting that a final decision would be informed by the number of requests received. After the 4 February meeting, the committee focused on public hearings in the provinces – which were suspended when the Covid-19 State of Disaster was declared. They resumed in October and were concluded in November 2020.

Legalbrief Today subscribers are advised that – although the extended deadline for written submissions on the draft Bill was reported in Policy Watch at the time – recent updates on the committee process have referred to the original 31 January 2020 deadline. Instead, they should have referred to 29 February 2020. We apologise for any confusion this may have caused.


18 March 2021

The ad hoc committee established to initiate and introduce legislation amending section 25 of the Constitution to provide expressly for expropriation without compensation for land reform purposes now has until 31 May to complete its task. This was confirmed in the minutes of Tuesday’s National Assembly plenary but, at the time of writing, had yet to be officially announced by the committee itself. According to a Parliamentary Monitoring Group record of proceedings when the committee last met on 12 March, it was agreed that the timeframe for oral submissions should not go ‘beyond 25 March’. This is noting that they will be heard only from stakeholders who, during last year’s public commentary period on the draft Bill, requested an opportunity to present oral evidence. A programme provisionally adopted during the meeting earmarked 31 March for parliamentary legal services to ‘respond’ to issues raised in the oral submissions – and 14 April for members to consider a report on the entire public participation process, which will be revised to incorporate input made by way of oral evidence, reports Legalbrief's Pam Saxby.

At the time of writing, no copy of the programme was electronically available. However, if its dates for oral submissions are not changed, they could clash with hearings on the revised Expropriation Bill – for which the National Assembly’s Public Works & Infrastructure Committee has earmarked 24 and 25 March, according to the latest parliamentary committee meetings programme. How this will be managed remains to be seen. The draft Constitution 18th Amendment Bill does not prescribe the circumstances in which land expropriation for nil compensation would be deemed justifiable. The revised Expropriation Bill does. When the most appropriate location of a list of these circumstances was last discussed by the ad hoc committee (in December 2019, before its draft Bill was gazetted for comment), DA and FF Plus representatives indicated a preference for it to be included in the Constitution 18th Amendment Bill, as Legalbrief Today has already reported. At the time, the DA’s view was that – since amendments to the Constitution require the support of two-thirds of the House, while only 50% is necessary for the adoption of national legislation – locating the list in national legislation could allow property rights in respect of land and improvements to be whittled away over time by way of piecemeal amendments.

In a written reply to questions from DA KwaZulu-Natal representative in the NCOP, Timothy Brauteseth, Public Works & Infrastructure Minister Patricia de Lille recently expressed concern about the extent to which ‘material facts about the Bill have been twisted and the truth ... distorted’. In her view, ‘the perpetuation of lies has become a consistent mechanism used by opponents of land reform’ to describe ‘nil compensation and no compensation as tantamount to old style land grab(s)’. In fact, ‘nowhere’ does the Expropriation Bill ‘talk about land grabs ... (or) prescribe expropriation’. Instead, it provides for ‘rigorous procedures and processes to arrive at nil compensation and no compensation’. The Minister added that it would make ‘no sense’ for a democratic government to ‘revert to (the) apartheid style practice of taking homes or business premises away from people’. ‘Surely, no court would agree to this either’, she said.


24 March 2021

The Department of Agriculture, Land Reform & Rural Development will be asked to respond to concerns about the entire land reform process expressed during yesterday’s hearings on the draft Constitution 18th Amendment Bill. This was the only concrete outcome to emerge from yesterday’s meeting of the National Assembly ad hoc committee tasked with preparing legislation to amend section 25 of the Constitution to provide explicitly for expropriation without compensation for land reform purposes, reports Legalbrief's Pam Saxby. According to a presentation on a submission from the Helen Suzman Foundation, these concerns include the slow pace of restitution; ‘corruption, inefficiency and incompetence’; a ‘minimal’ budgetary provision; and poor departmental capacity. In the foundation’s view, if they are not addressed, the land reform programme will not succeed and the inevitable ‘legal proceedings will bring the process to a halt’. In his hard-hitting summary of a submission from Sakeliga, CEO Piet Le Roux warned that, by attempting to ‘conceal’ what amounts to ‘confiscation’ in the ‘formality’ of an amendment to the Constitution providing for land expropriation without/for nil compensation – thus evading ‘the full inspection and constrictions of law and constitutionalism’ – Parliament will ‘trigger certain obligations’ to set in motion a ‘sustained campaign’ to restore constitutionality. Le Roux alluded to heightening ‘tension’ between SA’s ‘various communities’ in that context.

During yesterday’s proceedings, the committee also heard oral evidence in support of written submissions received during the public commentary period from Cosatu, the South African Property Owners Association (Sapoa) (with Annexure B elaborating on the technicalities of its proposals and A explaining their overarching rationale), AgriSA and the Black Management Forum (BMF). While Cosatu expressed its unconditional support for the proposed new piece of legislation – drawing attention to the perils of ‘knee jerk opposition’ to the draft Bill in a climate of rising frustration over ongoing land hunger – the BMF would like to see land ‘returned’ without interference from the courts. However, although decisions should be made by way of administrative action, they should emerge from a representative structure tempering the powers of the Minister. The organisation also called for the protection of ‘land occupants’; and land allocation on a ‘use it or lose it’ basis to optimise agricultural production and deepen food security.

The Helen Suzman Foundation, Sapoa and AgriSA were adamant that, since the Constitution already provides implicitly for land expropriation without/for nil compensation, an amendment to section 25 is unnecessary. The courts should make the final decision informed by circumstances unique to each case, with the burden of proof resting on the state. Furthermore, in the view of AgriSA, no ‘individual group’ should be expected to ‘bear the brunt’ of – or be ‘punished’ for – what happened in SA’s past. Since ‘international best practice on compulsory acquisition and various international human rights instruments … protect property rights’, amending section 25 could be perceived by potential domestic and foreign investors as likely to lead to changes to other fundamental rights – sending ‘negative signals’ and exacerbating already high levels of uncertainty. By contrast, the BMF argued that ‘tip toeing’ around the issue is precisely what has undermined investor confidence. This will only be restored once clarity is provided in the Constitution and prospective investors are obliged make the necessary adjustments.

No discussions took place on the merits or demits of any opinions expressed by yesterday’s presenters, the purpose of the hearings being to ‘persuade Parliament one way or the other’, as committee chair Mathole Motshekga repeatedly explained when members attempted to go beyond simply asking ‘questions for clarity’. The next round of oral evidence will be heard today – in tandem with a separate virtual meeting of the National Assembly’s Public Works & Infrastructure Committee, which will begin hearing oral submissions on the revised Expropriation Bill. The two pieces of proposed new legislation being inextricably linked, this is unfortunate but nevertheless tends to underscore the sense of urgency driving the process of finalising the Constitution 18th Amendment Bill. Yesterday’s meeting did not feature in the most recent parliamentary schedule – while a statement alerting media representatives to the hearing was only posted on Parliament’s website that morning – despite being dated 22 March. However, a draft committee programme submitted to the National Assembly when the committee approached the House for more time to complete its task did refer to hearings between 21 and 25 March. The extension subsequently granted (31 May being the new deadline by which the Bill should be ready for tabling in the House) has yet to be formally announced.