PARLIAMENTARY BLUNDER: Has it compromised the EWC public participation process?

Media statements issued last week following oral submissions on the draft Constitution 18th Amendment Bill and the revised Expropriation Bill may have strengthened the position of interest groups opposing land expropriation for nil compensation and doing their level best to discredit the legislative process.

The ad hoc committee responsible for preparing the draft Constitution Amendment Bill released a statement expressing concern about public hearings on the revised Expropriation Bill having been held prematurely. It was followed by a statement from the National Assembly's Public Works & Infrastructure Committee, conceding that holding hearings on the two Bills simultaneously had been 'unfortunate', should have been 'avoided at all cost' and 'might have led to unnecessary confusion' - possibly preventing parties 'interested' in both Bills from participating fully in the parallel proceedings.

The draft Constitution 18th Amendment Bill seeks to amend section 25 of the Constitution (property rights) to provide for expropriation for nil compensation for land reform purposes where this might be deemed just, equitable and in the public interest. Sub-clause 12(3) of the revised Expropriation Bill proposes the circumstances in which this might be so.

In 2019, certain political parties represented in the ad hoc committee indicated a preference for locating a list of these circumstances in the final Constitution 18th Amendment Bill - and not in the enabling national legislation. At the time, they argued that - since an amendment to the Constitution requires support from two-thirds of the National Assembly's members (and national legislation only 50%) - including the list in section 25 of the Constitution would avoid the piecemeal erosion of property rights by way of amendments to the enabling legislation. They were nevertheless persuaded to support the release of the draft Bill in its present form (without a list) for public comment - on the understanding that the list and its location would be discussed at the end of the public participation process.

As the envisaged enabling legislation, the revised Expropriation Bill (differing from its 2015 'D' version only in respect of sub-clause 12(3), as a press release at the time confirmed) was eventually tabled in the National Assembly in October 2020.

Strangely, its implications for the work of the ad hoc committee appear to have been overlooked by members until last week, when legal advice sought by the Department of Public Works & Infrastructure was presented to the committee. It formed part of a submission requested in terms of National Assembly Rule 275(b) but was dismissed as 'unhelpful' because it referred to relevant aspects of the revised Expropriation Bill. Only during ensuing discussions (when the nature of the brief was clarified) were committee members made aware that parallel hearings on that Bill had been held the previous day and were continuing.

The ad hoc committee statement described hearing oral submissions on the revised Expropriation Bill as 'a bit like putting the cart before the horse'. 'Our process should inform what should be in the Expropriation Bill', it explained.

During provincial public hearings on the draft Constitution 18th Amendment Bill, the majority of participants expressed wholehearted support for 'land expropriation without compensation' - as they did during a 2018 public participation process on the merits of amending section 25 of the Constitution to expressly provide for this measure (Parliamentary Monitoring Group). This is just one of many statements on the 2020 public hearings process illustrating sentiments articulated at the time.

Expectations have therefore been raised - possibly unrealistically, since it has never been clear how well South Africans unfamiliar with the legislation itself understand the limitations on what will be allowed in practice. Should last week's procedural blunder further delay the passage of these Bills through Parliament, the consequences could be far-reaching - especially given increasing levels of frustration and anger (BBC) about the slow pace of land reform.