Behind the scenes of public policy and law-making in South Africa (where views are expressed, they are my own and do not in any way reflect those of Juta Law or the editors of publications to which I contribute) Follow on Twitter @SaxbyPam
Parliamentary legal adviser Charmaine van der Merwe was instructed last Wednesday, 13 November, to begin drafting the necessary Constitution Amendment Bill. Her work will be underpinned by themes that emerged during a constitutional dialogue on land reform held by the ad hoc committee to which she reports on this matter. On Wednesday 13 November, political parties represented in the committee were given two days to comment on Van der Merwe’s presentation on these themes.
Contrary to the opening sentence of a DA media statement issued on 15 November, political parties were not required to meet a ‘deadline’ that very day for submitting their input on ‘the draft section 25 amendment Bill’. No such document exists. There appears to have been a misunderstanding, despite the final sentence of a committee press release on Wednesday’s meeting clearly giving political parties ‘until Friday (that week) to make further submissions, if any, on the themes of the constitutional dialogue’. This misunderstanding was communicated more widely in last Saturday’s edition of The Star.
Both the DA’s statement and The Star leave nobody in any doubt about the leading opposition’s position on amending the Constitution to more explicitly provide for land expropriation without compensation, Unfortunately, however, they have misinformed the public on the process being followed by the committee.
Anyone questioning the accuracy of this account of last week’s events should listen to a Parliamentary Monitoring Group sound recording of the meeting, which is freely available to members of the general public.
This article appeared in the 8 November edition of Legalbrief’s Law Society of SA weekly newsletter
For information on the process to be followed in amending the Constitution to provide explicitly for land expropriation without compensation, please refer to the previous article (immediately below this one)
Two possible options for amending section 25 of the Constitution (property rights) will be considered by the ad hoc parliamentary committee tasked with initiating and introducing the legislation required to make explicit what is already implicit in section 25 regarding land expropriation without compensation. This was confirmed in a recent committee media statement following its constitutional dialogue on land reform, when ‘experts and stakeholders’ shared their ‘insights’ on issues of concern. However, a Parliamentary Monitoring Group sound recording of the workshop at which these proposals were presented does tend to point to minor inaccuracies in the statement. Parliamentary legal adviser Charmaine van der Merwe has recommended that either sub-sections 25(2)(b) and 25(3) be amended – or that they remain as they are and that a new sub-section is inserted.
She envisages the amended sub-section 25(2) reading: ‘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, 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, possibly reading: ‘Notwithstanding
the requirement for compensation contemplated in subsections (2), (3) and (4),
for the purposes of instituting land reform and in order to redress the results
of past racial discrimination, land may be expropriated without the payment of
any compensation as a legitimate option for land reform’. Van der Merwe
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. In her view, this would
need to be combined with one of the two options proposed.
This article appeared in the 28 October edition of Legalbrief Today, under Policy Watch, and was not reserved for subscribers only
For information on proposed amendments to section 25 presented to the parliamentary committee concerned on 6 November 2019, please refer to the article immediately above this one
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 the following Monday.
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 that 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.
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.
to Parliamentary legal adviser Charmaine van der Merwe, the three-week period
officially allowed for comment from members of the general 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.
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
The thinking behind Parliament’s decision to hold provincial public hearings this year on the National Health Insurance (NHI) Billhas not been clearly communiciated in the mainstream media. A Parliamentary Monitoring Group (PMG) sound recording of the meeting at which National Assembly Health Committee chair Sibongiseni Dhlomo announced what is envisaged confirmed that several stakeholders have already approached the committee for more time to prepare detailed written submissions and, subsequently, to present their views during parliamentary hearings. Given the importance of allowing committee members enough time to study these submissions and others already received, according to Dhlomo it seems likely that parliamentary hearings will only take place next year – possibly also allowing more preparation time for those requiring it.
Meanwhile, members of the general public will air their views during provincial hearings scheduled to begin on 25 October in Mpumalanga . Hearings in the Northern Cape province will follow on 1 November. Although dates for the remaining provinces have yet to be announced, four days have been allocated to each province thus far. According to the PMG recording, Dhlomo believes it is important that committee members have an opportunity to hear first-hand the perspectives, concerns and expectations of ordinary South Africans before considering those of stakeholders with the resources to make more detailed written submissions and travel to Parliament to present them in person.
A presidential health accord signed in July maps out what needs to be accomplished during the next five years if NHI is ever to get off the ground. Among other things, the compact entails ‘engaging the private sector’ on improving healthcare service access, coverage and quality.
It could take as long as two years to implement the 2019 National Credit Amendment Act, according to Department of Trade & Industry officials. Briefing members of the National Assembly’s Trade & Industry Committee on Tuesday, they emphasised the importance of avoiding any ‘unintended consequences’ identified during a socio-economic impact assessment concluded in May. One could be that credit providers ‘implicitly’ draw a distinction between higher- and lower-risk low-income earners applying for credit – creating a ‘dual credit system’ and pushing the very people the Act seeks to assist away from legitimate credit providers into unregulated, informal markets.
Signed into law last month, once operational the Act will make long-term debt intervention accessible to consumers with a monthly income of R7 500 or less and unsecured debt not exceeding R50 000. However, regulations will need to be developed, released in draft form for public comment and finetuned before the Act can be implemented. In addition, the National Credit Regulator and National Consumer Tribunal will need additional resources to deal with what will inevitably be an increased demand for their services. That said, Trade & Industry Minister Ebrahim Patel made it very clear that the expectations of low-income consumers will need to be carefully managed. The Act will not ‘write-off’ their debt.
LAND EXPROPRIATION WITHOUT COMPENSATION:
The process of developing a Bill to amend section 25 of the Constitution – specifying the circumstances in which land may be expropriated without compensation – could take longer than expected. During Wednesday’s meeting of the ad hoc committee established by Parliament to draft the Bill, it was agreed that, while every effort should be made to meet the 31 March 2020 deadline for tabling it in the National Assembly, constituency work and demands on the time of members chairing other committees may well cause delays.
In keeping with the constitutionally enshrined principle of public partifcipation in the process of drafting new legislation – not to mention the Rules of Parliament – a draft Bill will be released for comment and public hearings held in the National Assembly, NCOP and provincial legislatures.
Before beginning the drafting process, the committee intends holding a workshop at which it will be briefed by experts and key stakeholders on the thinking behind recommendations in a broader report produced by former President Kgalema Motlanthe’s high-level panel, as well as a more recent report compiled by the presidential advisory panel on land reform and agriculture. However, while these recommendations will inform the process of developing the Bill, they are not binding.
Committee members (courtesy of the Parliamentary Monitoring Group): Click on each name for additional information.
This site provides reliable, accurate information on public policy and law-making issues of concern to ordinary South Africans. The mainstream media tends to sensationalise new developments out of context. Journalists rarely if ever take time to read the documents available to them or to develop a sound understanding of new policy and legislative proposals. As a result, misinformation abounds.
Until recently, the site was used for archived articles published in Legalbrief Today under Policy Watch. It was linked to Twitter alerts designed to promote the product. That has changed. In future, information posted here will draw on the author’s observations in Parliament but will not replicate Legalbrief Policy Watch articles, unless otherwise explicitly stated.
The author’s observations will not include personal opinions but will focus on facts supported with documentary evidence cirulated by Parliament itself. That said, they should not be construed as representing the views of Juta Law, which publishes Legalbrief Today and CompliNEWS – to which the author continues to contribute as an independent contractor.
The site is not designed to field comments or answer questions. Its purpose is to make reliable information on contentious issues freely available. With that in mind, for the foreseeable future it will focus on:
national health insurance (NHI)
land expropriation without compensation (EWC)
the role of the South African Reserve Bank
hate crime and hate speech
The site will be updated only when new information on these topics becomes publicly available. If nothing has been posted recently, it is more than likely that no new information has been officially released by Parliament or government. The author does not have access to any other reliable source material on public policy developments and does not use unsubstantiated mainstream media reports.
This article appeared in the 30 August edition of Legalbrief Today, under Policy Watch
An opinion document on the constitutionality of the National Health Insurance (NHI) Bill presented orally to members of the National Assembly’s Health Committee before a briefing from Health Minister Zweli Mkhize was withheld from journalists – despite reportedly having been made available for copying and public circulation well before the meeting. Prepared by the Office of the State Law Adviser and read verbatim to the committee by acting head Ayesha Johaar in the presence of media representatives and health sector stakeholders, the document was only distributed to committee members after lunch, by which time Johaar had left. Her presence at the meeting was apparently requested at surprisingly short notice. When the morning session ended and committee chair Sibongiseni Dhlomo was approached for permission to make copies available to members of the public, he declined – claiming not to have seen or read the document.
Dhlomo adopted this stance is not clear. Underpinned by provisions in sections
27 and 146(2) of the Constitution, as well as sections 3 and 25 of the 2003
National Health Act, Johaar’s opinion is that the Bill is ‘constitutionally
sound’. Section 27(1)(a) of the Constitution makes access to health care
services a universal right. Section 146(2) spells out the conditions in which
national legislation uniformly applicable ‘to the country as a whole’ prevails
over provincial legislation. Section 3 of the Act deals with the
responsibilities of the Minister, the national department, provincial
departments and local authorities in providing healthcare services. Section 25
sets out the general functions of provincial departments in that context.
A committee media statement issued two days before the briefing – refuting allegations that the Bill had been ‘suspended’ because of concerns about its constitutionality – also noted that, having met ‘one of the state law advisers’ to discuss the matter, Dhlomo was ‘comfortable’ with the advice he received. Johaar is the adviser to whom he was referring. However, widely publicised reservations by some stakeholders about government’s capacity to fund NHI, manage it financially and deliver quality services – not to mention speculation about the future role of medical schemes – may explain Dhlomo’s obvious distrust of media representatives. This is especially given the extent to which some journalists tend to sensationalise issues without scrutinising the documents on which they report. The indignant tone of DA Evelyn Wilson’s input during the meeting probably did little to smooth already ruffled feathers. She has much to learn from party colleagues Siviwe Gwarube and Haseena Ismail, whose equally candid approach was noticeably more deferential.
that backdrop, the Minister, his deputy Joe Phaahla, Health Department DG
Precious Matsoso, deputy DG Anban Pillay, presidential adviser Olive Shisana,
NHI office head Nicholas Crisp and other departmental officials fielded an
avalanche of questions about the Bill and NHI in general from the DA, FF Plus
MP Philippus van Staden and the EFF’s Naledi Chirwa – but did little to assuage
their fears. Neither the model to be used in implementing NHI nor the mix of
options available to fund it are cast in stone. However, conceding that
government ‘will need to invest strongly’ in improving the standard of public
healthcare services and facilities, Mkhize said that, where there is evidence
of ‘neglect’ it ‘must be corrected’. ‘We are at such a low level of quality
that we will have to fight hard to improve it,’ he told the committee,
referring to NHI as a ‘vision’ and an opportunity to ‘up the game’. According
to Pillay, the need for ‘robust’ monitoring and evaluation was simply confirmed
by the pilot phase.
the Deputy Minister’s view, while NHI promises to be a ‘disruptive
intervention’ – especially for the 15% of citizens able to afford private
healthcare – ‘fear of the unknown’ cannot be allowed to prevent government from
moving forward with plans to honour not only its constitutional obligations but
also binding international commitments. While Phaahla did not elaborate on the
role of medical schemes under the NHI system and little was said on the issue,
Pillay confirmed that it will be spelled out in regulations. References by
Shisana to presidential health compact partnerships and by Crisp to the
introduction of NHI as ‘a journey, not an event’ were vague – tending to point
to a long road ahead, albeit with ample opportunities for public consultation.
Funding proposals will be the focus of a separate draft money Bill.
This article appeared in the 2 August edition of Legalbrief Today, under Policy Watch
Neither Finance Minister Tito Mboweni nor his deputy, David Masondo, was present when the National Council of Provinces (NCOP) considered and passed the 2019 Appropriation Bill on Wednesday (Fin24) – tending to suggest that the final leg of its passage through Parliament was merely a formality. While NCOP member and former National Assembly Finance Standing Committee chair Yunus Carrim ‘stopped short’ of saying as much (SABC News), by drawing attention to the Minister’s absence from the House when it voted on the ‘important’ Bill, he might just as well have done so. Without Mboweni or his deputy, there could be no debate before the vote took place (Business Day).
Approved by the National Assembly on 23 July, the Bill’s ‘B’ version reflects the R17.7bn allocation to Eskom in April, which Finance Minister Tito Mboweni requested be factored into the version tabled on 20 February but not processed by the time Parliament rose for May’s elections. Having been revived on 3 July, it was subjected to public hearings just under two weeks later at a joint meeting of the NCOP and National Assembly Finance Committees. According to Parliamentary Monitoring Group records, Carrim used the opportunity to remind members that, despite capacity constraints, they have a ‘huge responsibility’ to ensure that the funds appropriated are ‘used productively’. Yet after the hearings, each committee met only once – to adopt the Bill.
A perception in some circles that it was ‘rushed through Parliament’ is therefore hardly surprising. In the view of DA leader in the NCOP, Cathy Labuschagne, not only has neither House ever made ‘significant amendments’ to an Appropriation Bill; the ‘right to debate’ its contents is being gradually eroded (Business Day). This despite provisions in the 2009 Money Bills Amendment Procedure and Related Matters Act apparently requiring what her colleague, Dennis Ryder, described as ‘thorough interrogation’ during deliberations in both committees (Fin24). Given the ‘austere measures’ imposed by the 2019 Appropriations Bill, Ryder believes the three-week process fell far short of these requirements.
This article appeared in the 13 June edition of Legalbrief Today, under Policy Watch
The capacity of National Assembly committees to adequately hold the executive and state institutions to account is finally being brought to the attention of ordinary South Africans in the context of the commission of inquiry into state capture. This is noting recent allegations that SA’s fifth democratic Parliament failed to ‘prevent the looting of tax payers’ money’ despite having been alerted by ‘senior’ South African Reserve Bank officials to ‘cases’ of money laundering clearly requiring ‘urgent’ prosecution (SABC News). Commission chair Deputy Chief Justice Raymond Zondo has confirmed that ‘part of his job’ is to ‘establish a task team to assess how Parliament’s oversight structures dealt with issues of state capture, and whether there were elements of … (it) within portfolio committees’ ( Fin24).
Zondo’s pronouncements on the ‘capacity problems’ possibly experienced by National Assembly committees during the country’s fifth democratic Parliament (SABC News) have drawn attention to a long-standing concern about the quality of administrative support. By way of example, it may take weeks for the minutes of a meeting to be produced and approved – leaving committee members and interested stakeholders dependent on recordings and reports made available by the Parliamentary Monitoring Group. It is not uncommon for several sets of long-overdue minutes to be read and adopted during a meeting with a packed agenda involving other pressing and often far more complex matters. In such circumstances, is it reasonable to expect members to remember with any degree of accuracy what was discussed and decided weeks before? What becomes of any action items identified during a meeting is anybody’s guess.
Against that backdrop, it is frequently left to departmental officials or
parliamentary legal advisers to tactfully remind committee members of
information made available to them on which decisions have already been made.
That said, documents sent to a committee secretary well before the meeting at
which they are to be considered may only be circulated the evening before. It
has even been known for them not to be circulated at all – just as it is not
uncommon for departmental officials to table documents at the very meeting
convened explicitly to discuss them. Yet despite members’ obvious unfamiliarity
with the contents of such documents, the process continues. This is especially
worrying in the case of proposed new legislation. Combined with an apparent
lack of commitment on the part of many MPs to study documents that are made
available timeously, this level of inefficiency leaves many observers wondering
if the ‘engine rooms’ of Parliament are working. Perhaps Zondo’s task team will
uncover more ‘capacity problems’ than can be dealt with by the commission
This article appeared in the 4 June edition of Legalbrief Today, under Policy Watch
The ‘naming and composition’ of Parliament’s new National Assembly committees is expected to be discussed tomorrow at a meeting of the House Rules Committee, when the process of assigning MPs to these and ‘various other bodies’ could also begin. According to a media statement released yesterday, a joint meeting of the National Assembly and NCOP programme committees will follow, focusing on matters related to President Cyril Ramaphosa’s State of the Nation Address on 20 June, the ensuing debate and the President’s reply. Once the dates for debates in both Houses on other ‘key issues’ have been identified, the programme committee of each House will finalise its ‘law-making and oversight’ schedule for the remainder of the year.
an ongoing MPs’ induction programme will include ‘information and discussion
sessions’ on their constitutional mandate and responsibilities, ‘interests,
ethics and code of conduct’, and ‘participation’ in National Assembly and NCOP
plenary sittings and committee meetings. It will also deal with the
parliamentary budget office, law making and public participation, security on
the parliamentary precinct, relations with the media and MPs’ ‘facilities and
benefits’. Given the poor attendance record of most members of SA’s fifth
democratic Parliament and their apparent reluctance to familiarise themselves
with the nuts and bolts of many Bills before them, something is hopefully being
done to avoid a repeat performance.
theory, responsibility for such matters lies with party whips whom –
yesterday’s statement notes – not only ‘assist in organising party business’
but are also expected to ensure that party representatives ‘attend committee
meetings and debates in the House’. While it is not clear from the statement
what is meant by ‘parliamentary business’, party whips are required to keep MPs
suitably informed. Last year, when things fell apart in the National Assembly’s
Trade and Industry Committee as it attempted to come to grips with the
Copyright Amendment Bill, an ANC whip was brought in. Sadly, this made no
difference whatsoever to the quality of input from committee members during
ensuing deliberations. Perhaps tomorrow’s meeting of National Assembly chief
whips will mark the beginning of a new era of well-informed, robust committee