LAND REFORM LEGISLATION: Clarity needed on public participation obligations

Last week, perceived shortcomings in the draft Constitution 18th Amendment Bill public participation process prompted the DA’s Annelie Lotriet to issue a media statement. In the DA’s view, it was ‘unconstitutional’ for committee chair Mathole Motshekga to ‘deny’ any requests from organisations from whom written submissions had been received to substantiate them by way of oral representations. Yet, as a Parliamentary Monitoring Group (PMG) report and audio recording of the meeting clearly indicate, Motshekga repeatedly made the point that the committee itself had already agreed to a programme in which no provision is made for oral evidence.

Lotriet was present at the 10 February meeting (PMG) held expressly to consider and adopt the programme. At no point in the proceedings did she or the DA’s other principal representative on the committee, Glynnis Breytenbach, suggest that the programme should include an opportunity for oral representations. Instead, they focused on the availability of the written submissions themselves – requesting an opportunity to access them, which was granted. The following week, Lotriet and her colleague Werner Horn stated that their party had only recently received a report on the public participation process circulated in October 2020 and apparently received by other members of the committee* (see footnote). Against that backdrop, Lotriet requested and was granted more time to compare the report’s summary of written submissions with the documents themselves, which she said had only reached her two days earlier.

According to a PMG report on the committee’s 19 February meeting (PMG), it was only then that Lotriet, Breytenbach and relatively new DA representatives on the committee Thandeka Mbabama and Noko Masipa expressed interest in engaging with the authors of written submissions during more public hearings. By then, it seems, they had accessed the written submissions and may well have noticed requests for an opportunity to give oral evidence, although this is not clear. However, since the meeting had been called to consider the report itself, no further discussions on the matter took place until a week later, when Mbabama raised it once again.

The 5 December 2019 committee media statement calling for comment on the draft Bill made no reference to oral representations. Traditionally, where public hearings in Parliament itself are planned, the committee statement calling for input asks stakeholders interested in appearing before the committee to indicate this in their submissions. On the committee’s instruction, a list is then drawn up and the appropriate arrangements made. Where the likely level of public interest in a Bill is unpredictable, a committee tends simply to call for written submissions without referring to the possibility of hearings – but may nevertheless choose to hold them should it receive sufficient requests to do so.

National Assembly Rule 286 (the process of inquiring into a Bill) requires a committee to apply certain ‘separate formal stages’ ‘as far as possible’. These include hearings. Sub-rule 286(6)(c) states that, ‘if deemed necessary’, an ‘invitation for further public comment and submissions on the substance of the Bill’ should be issued, ‘followed by the hearing and examination of such or other oral submissions’. It is not clear if the same applies to a draft Bill prepared by a committee. When a Bill is passed by the House and sent to the NCOP for concurrence, the committee concerned tends to follow the same process as its National Assembly counterpart when deciding on public hearings. In the case of section 76 Bills affecting the provinces, hearings may also be held by the provincial legislatures.

Bills amending the Constitution appear to follow the same processes when before National Assembly and NCOP committees. However, as far as can be ascertained, all previous Constitution Amendment Bills have been drafted at the request of and tabled in Parliament by a Minister of Justice & Constitutional Development or – in the case of the Constitution 5th, 4th, 3rd, 2nd and 1st Amendment Bills – by former Provincial Affairs & Constitutional Development Minister Valli Moosa. It is not clear if they were subjected to public consultations during the drafting process. The Constitution 18th Amendment Bill is the first to have been prepared by a parliamentary committee, which took a decision in October 2019 to call for comment on the draft Bill and subject it to nationwide provincial public hearings. There appears to be no hard and fast rule on the public participation process followed when a committee prepares a Bill.

This notwithstanding, PMG records point to a process consistently followed when a Bill has been prepared and introduced by the executive. In the case of the Constitution 14th, 15th and 16th Amendment Bills, public hearings were held in Parliament by the National Assembly and NCOP committees responsible. Given the speed with which they were passed by both Houses (usually within six months), no hearings appear to have been held in the provinces. The Constitution 17th Amendment Bill was withdrawn – and there are no PMG or other electronic records available of the process followed in respect of earlier Constitution amendment Bills.

The National Assembly Rules are not clear on whether the ad hoc committee tasked with preparing and tabling legislation amending section 25 of the Constitution (to explicitly allow expropriation without compensation for land reform purposes) is constitutionally obliged to provide an opportunity for oral representations from those who have already made written submissions on the draft Bill. Section 74 of the Constitution (Bills amending it) prescribes the procedures to be followed in each House and by the person or committee intending to introduce it. In that regard, sub-section 74(6) requires the Bill to be tabled with ‘any written comments received from the public and the provincial legislatures’. These are included in a report expected to be adopted soon.

When the draft Bill was gazetted in December 2019 for public comment, it was sent to the provincial legislatures. As far as can be ascertained, it has also been sent to the National House of Traditional Leaders.

Perhaps Parliament’s legal services will be able to throw light on requirements in respect of opportunities for oral evidence this evening, when they are scheduled to brief members on matters raised in the submissions with legal and drafting implications. The committee is expected to meet again tomorrow morning to continue discussions on their input.

Footnote: * FF Plus representative on the committee, Corné Mulder, received the report in November 2020. He made this clear in a meeting of the National Assembly’s Programme Committee, of which he is also a member. The DA’s chief whip, Natasha Mazzone, is a member of that committee and was present. Given that it was decided by the National Assembly’s Programme Committee to extend the deadline by which the ad hoc committee should table the Constitution 18th Amendment Bill in Parliament, Mazzone probably notified her colleagues of the report’s availability. If they had not yet received it, they should have queried this with the committee secretary. Had they also asked for access to the written submissions, there would then have been ample time to scrutinise them over the December/January break. The issue of opportunities for oral representations could then have been raised on 10 February, when the committee programme was considered and adopted.