Draft Constitution Eighteenth Amendment Bill: finalisation

Meeting report

Opening Remarks
The Chairperson noted that there were no apologies and that Members of the African Christian Democratic Party (ACDP), Economic Freedom Fighters (EFF) and Inkatha Freedom Party (IFP) were not in attendance.

He stated that it was a historic day as the Committee was meeting to formally adopt the third draft of the Constitution Eighteenth Amendment Bill, which was the product of protracted engagements by all political parties inside the Committee and through bilaterals, involving the political principals of parties represented in the Ad Hoc Committee. The revised Bill was the product of public participation, which was enjoined by the Constitution. Members had complied with the Constitution, Rules of Parliament and Judicial interpretations of the constitutional imperative of public participation.

On 27 August 2021, the Committee unanimously adopted the report on the submissions made during the three week extension period, which ended on the 13 August 2021. On 1 September 2021, the Committee considered substantive issues raised in the report and the impact thereof on the Bill. Taking into account the impact of the report, the Committee effected the necessary changes to the Bill. After reaching agreement on the changes, the Committee instructed the Parliamentary Legal Services to effect the changes and bring the final draft for formal adoption.

The Committee’s task during the meeting would not be to open any debate on substantive issues but to consider the technical/drafting issues before formally adopting the Bill. After the adoption of the Bill, the Committee would instruct the Administration to prepare a report for the National Assembly. The final report would be tabled before the Committee on 8 September 2021 for consideration and adoption.

Consideration of the Draft Constitution Eighteenth Amendment Bill
Adv Charmaine van der Merwe, Senior Legal Advisor, Parliament Constitutional and Legal Services Office, presented the third draft Bill to the Committee. She highlighted the changes made to the Bill based on the Committee’s previous meeting.

Amendments made to the long title
Adv Charmaine van der Merwe noted that the reference to ‘communal land’ was removed from the long title of the Bill. The long title was otherwise the same as advertised during public participation

The Chairperson called for Members to indicate if the amendments reflected the requested changes at the previous meeting.

Prof A Lotriet (DA) stated that the Democratic Alliance (DA) did not support the long title.

Mr S Gumede (ANC) suggested that before the Committee adopted the amendments, it should be agreed if the requested changes had been effected.

The Chairperson agreed that the Committee should do what Mr Gumede had suggested. The Committee should differentiate between the changes made and the adoption of the long title.

Prof Lotriet stated that the DA did not agree with the long title, as the DA did not support the principle and the amendment that was effected. She stated that either way the DA did not support it or agree.

The Chairperson stated that Prof Lotriet’s statements were ‘too general.’ He asked if Prof Lotriet agreed that what was agreed to at the previous meeting had been effected?

Prof Lotriet stated that she would not comment at present. It was up to the Chairperson and other Members to decide if it was in line with the proposals made at the previous meeting. The proposal was not made by the DA.

The Chairperson  stated that the Members could all agree that the Parliamentary Legal Services had effected the changes that they were instructed to. He asked if any Members disagreed that it had been done. As there was no one that disagreed, he asked that Members adopt the changes to the long title.

Prof Lotriet repeated that the DA did not support the long title. The DA had two voting Members, herself and Adv G Breytenbach (DA), both of whom were present.

Dr C Mulder (FF+)  stated that the his party did not support the long title.

The Chairperson asked if Dr Mulder agreed that the changes that were decided upon in the previous meeting had been effected, regardless of supporting it or not.

Dr Mulder stated that in his experience, the Parliamentary Legal Services did exactly what the Committee asked of them. He had no reason to believe that the Parliamentary Legal Services had not done their job.

Mr C Xaba (ANC) stated that the long title captured what was agreed to at the previous meeting.

Mr Gumede moved to adopt the long title.

Ms K Mahlatsi (ANC) seconded the move to adopt the long title.

The Chairperson asked if there were any counter-proposals.

Prof Lotriet stated that she found the process ‘somewhat strange.’ The DA objected to the long title.

Dr Mulder asked that the objection of the FF Plus be noted. If the Chairperson were to put it to a vote, the FF Plus would vote against it.

Vote on the long title
The Chairperson asked for Members to indicate who supported the long title.

He noted that Mr Gumede, Ms Mahlatsi and Ms N Ntobongwana (ANC) supported the long title and two Members opposed it.

Prof Lotriet stated that more than two Members opposed the long title. There were three Members who opposed it, herself, Adv Breytenbach and Dr Mulder.

The Chairperson noted this. He further stated that himself, Mr Gumede, Ms Mahlatsi and Ms Ntobongwana supported the long title. He stated that it would carry.

Amendments to the Preamble
Adv van der Merwe indicated that in the first paragraph of the Preamble, there had been a request that the phrase ‘dispossessed were of the view that little was being done’ be removed. The amended phrase read ‘especially as the hunger for land amongst the dispossessed is palpable and very little is being done to redress the skewed land ownership pattern.’ No changes were made to the second and third paragraphs. In the last paragraph there was a request to remove the issue of participation and ‘something productive done on the land.’ ‘Other land reforms’ was added. The word ‘productive’ was removed and the words ‘and other’ was included in front of ‘land reform.’ Those three changes were made to the Preamble.

The Chairperson called for Members to indicate if the amendments did not reflect the requested changes at the previous meeting.

There was no indication from Members.

The Chairperson called for Members to adopt the amendment.

Ms Mahlatsi moved to adopt the amendment to the Preamble.

Ms R Lesoma (ANC) seconded the adoption of the amendment to the Preamble.

The Chairperson asked if there were any counter proposals to the adoption of the preamble.

Prof Lotriet stated that the counter-proposal was that the DA did not support it, due to the changes that would reflect in the rest of the Bill. She noted that she was speaking on behalf of herself, and Adv Breytenbach.

Dr Mulder stated that the FF Plus did not support the amendment.

Ms Ntobongwana indicated that she supported the adoption of the amendment.

The Chairperson noted this, and noted the support of Ms Mahlatsi, Ms Lesoma, Mr Gumede and himself. There were five Members supporting and three opposing. He stated that the Preamble was carried by the majority.

Clause 1 of the Bill
Adv van der Merwe stated that clause 1 of the Bill consisted of a number of paragraphs. In the previous meeting a proposal was made to remove the words, ‘and any improvements.’ Members decided against that proposal in the previous meeting. Thus, it had remained in the Bill. There was a proposal to refer to paragraph 3(a), as subsection 3(a) was not being amended that inclusion could not take place. It had therefore not been included. There was a proposal to include a reference to ‘communal land,’ - that had been decided against in the previous meeting. Paragraph (a) remained unchanged from what was advertised, as decided in the previous meeting.

She noted that there were no proposals made to paragraph (b). In paragraph (c), there was a proposal for the inclusion of ‘is’ to become ‘may be.’ That had been decided against and it was therefore retained as advertised. In paragraph (d) there was a proposal for ‘land’ to be extended to include ‘natural resources,’ that was decided against. Paragraph (d) would remain as was advertised. In paragraph (e), there was a proposal to refer to ‘transitional measures,’ that was decided against. Paragraph (e) remained as advertised.

All the proposed amendments to clause 1 were rejected in the previous meeting; it would therefore stay the same as was advertised.

The Chairperson asked if there were any amendments proposed at the previous meeting that had not been effected.

There was no indication from Members.

The Chairperson suggested that this meant there was agreement.

Mr Gumede moved to adopt clause 1 of the Bill.

Ms Lesoma seconded the adoption of clause 1 of the Bill.

The Chairperson asked for any counter proposals.

Prof Lotriet indicated that the DA did not support this. The counter proposal was that it should not be accepted. She indicated that there were two DA Members present.

Dr Mulder asked that the objection of the FF Plus be noted.

The Chairperson stated that Mr Gumede, Ms Mahlatsi, Ms Lesoma, Ms Ntobongwana, Mr P Moroatshehla (ANC) and himself supported it. He noted that the clause was carried by the majority.

Discussion
Mr Gumede proposed that the approach be taken that five Members of the Ad Hoc Committee agreed and four Members disagreed rather than saying that the ANC, DA and FF Plus.

The Chairperson agreed with Mr Gumede.

Ms Lesoma requested clarity about who the voting members were on the platform that represented each party, as the Committee needed to ensure the proper process was followed.

The Committee Secretary indicated that from the ANC there was the Chairperson, Ms Lesoma, Mr Gumede, Mr Bongo (who was not in attendance), Mr Moroatshehla, Ms Mahlatsi, Ms Ntobongwana and Inkosi Z Mandela (ANC). Mr Bongo and Inkosi Mandela were alternate Members. From the DA there were three voting Members, Prof Lotriet, Adv Breytenbach and Dr M Gondwe (DA), who was an alternate. The EFF had one voting Member, Mr F Shivambu (EFF), who was not in attendance. He stated that the other parties had one voting Member. Dr Mulder was representing other parties.

Ms Lesoma stated that the voting alternates were only able to vote if the principal Members were not in attendance.

The Chairperson said that he agreed with Mr Gumede that they should discuss the votes in terms of how many Members voted for or against and not their party affiliations.

Ms Mahlatsi suggested that, as stated by Ms Lesoma, Ms Ntobongwana should come in place of a permanent Member of the Committee. An alternate could not vote when permanent Members were part of the meeting.

Clause 2 of the Bill
Adv van der Merwe indicated that clause 2 included the short title and commencement. No changes were made to this. It simply read the name of the amendment Bill, which once passed would be an Act, and the commencement date.

The Chairperson stated that it stood as it was.

Memorandum on the Objects of the Bill
Adv van der Merwe stated that the Memorandum on the Objects of the Bill had not changed. The changes were only made to the Bill. The Memorandum spoke about the background to the Bill, it included the Constitutional Review Committee process and it referred to the establishment of a committee. It outlined the various consultations that took place, such as the Committee’s consideration of matters of custodianship of land. It spoke of the Objects of the Bill to provide that land would expropriated for land reform. It stated that compensation could be nil and that it was a legitimate approach to land reform to address past wrongs. It spoke of participants in ownership and other land reform programmes. It then spoke of the contents of the Bill. It outlined that national legislation needed to provide circumstances, the insertion of subsection 4(a) to allow for land to be the common heritage of citizens and the amendment of clause 5 indicating that conditions should be fostered to enable state custodianship. It included mention of clause 2 providing for short title and commencement. The financial implications were indicated as nil, because the Bill intended to make explicit that which was implicit. It was indicated that the Committee consulted with experts and a workshop was held. There were also consultations with the public, extended hearings were done in all provinces and various departments were consulted. The parliamentary procedure proposed was that the Bill amended Chapter 2 of the Constitution and should therefore be dealt with according to the procedures established by Section 74(2) of the Constitution. The Bill needed to be referred to the National House of Traditional Leaders, which it was.

Adv van der Merwe indicated that the Memorandum needed to be voted on and then the Committee needed to take a vote on the Bill as a whole.

The Chairperson reminded Members that the Parliamentary Legal Services completed their work on time and that the Bill and the Memorandum were circulated. The Committee would take them as having been read. He asked if there was a proposal for the adoption of the Memorandum.

Mr Gumede moved to adopt the Memorandum.

Ms Lesoma seconded the adoption of the Memorandum.

Prof Lotriet stated that the DA could not support the Memorandum as the DA did not support the Bill. The Memorandum contained a reference to ‘no financial impact to the State,’ which was ‘far from the reality.’ She indicated that herself and Adv Breytenbach did not support the Memorandum.

The Chairperson noted that the Memorandum was carried with a vote of six Members of the ANC.

Adoption of the Bill
Ms Lesoma moved to adopt the Bill and Memorandum as presented to be tabled to the House.

Mr Moroatshehla seconded the move to adopt the Bill and Memorandum.

Dr Mulder asked that the objection of the FF Plus and the vote against the Bill, in its totality, and Memorandum be noted.

Adv Breytenbach stated that the DA and its two voting Members did not support the submission of the Report, Memorandum or Draft Bill to the National Assembly. The DA did not support the Bill or its contents – it was misleading.

The Chairperson noted the Members that supported the adoption, being Mr Gumede, Ms Lesoma, Mr Moroatshehla, Ms Mahlatsi and Ms Ntobongwana. The motion for the adoption of the Bill as a whole, including the Memorandum was carried.

Way forward
The Committee Secretary stated that the next step would be to meet the following Wednesday so that the Committee could adopt the Report.

The Chairperson confirmed that the next meeting would be held the following Wednesday. He requested that the Administration ensure that the Report was completed by Tuesday and communicated to the Members.

Dr Thulisile Ganyaza-Twalo, Unit Manager, Parliament, asked that the Committee consider adopting the minutes of previous meetings in the Committee’s next meeting.

The Chairperson Dr Motshekga agreed and asked that the minutes be circulated in advance of the meeting to Members. He stated that the minutes and report would be adopted at the next meeting.

The meeting was adjourned.