Draft Constitution Eighteenth Amendment: deliberations

Meeting report

The Chairperson stated that in 1990 political organisations were unbanned and allowed to come together to find a peaceful political settlement to the South African conflict. Leaders of the South African people, both Black and White, came from the apartheid regime, Bantustans, Robben Island, prisons, exile, the underground and the Mass Democratic Movement (MDM). Many of these people did not know one another. Some were born in exile and were seeing their mother land, South Africa, for the first time after the unbanning. All these people, who included racists, communists, conservative and progressive African nationalists were united by a single purpose, to dismantle the apartheid state and its Bantustans and tricameral parliaments to establish a united non-racial, non-sexist, democratic South Africa. South Africans from diverse backgrounds met and produced the 1993 interim Constitution, which laid the foundation for the 1994 democratic breakthrough. They worked together regardless of their backgrounds. South African leaders produced the Constitution Act 108 of 1996 which contained and entrenched the judicially enforceable Bill of Rights, of which section 25 was part. This Constitution laid down rules and procedures for any changes to the Constitution to ensure that whoever governed the Republic did not do so arbitrarily. Unlike the mothers and fathers of the Constitution, they have lived together for the past 25 years and have come to accept one another as South Africans, as it was envisaged in the 1996 Constitution. As South Africans, they had been given a ‘big log of wood and instructed like sculptors to carve out a beautiful statue.’ This instruction compelled them to work together to produce a beautiful statue for all the people of South Africa, both Black and White. In carrying out this instruction, they had no choice but to work together, like the mothers and fathers of the 1996 Constitution.

As the Chairperson, he would treat all members of the Ad Hoc Committee equally and attach equal importance to all contributions regardless of the size or history of the party that members came from. In his determination of the merits or demerits of the contributions, he would be guided by superior arguments given. It would therefore not advance anyone’s cause to insult those that they disagreed with. Differences should not make them enemies. He suggested they engage in a battle of ideas without insulting one another.

He suggested they make inputs informed by their Party mandates and reserve comments on rule issues. Where they had no mandate, they reserved the right to go back to their principles for further mandates before the next sitting of the Committee. The people of South Africa would judge for themselves, who were the ‘builders’ and who were the ‘spoilers’ of the South African statue that he had referred to.
 

He called on the Parliamentary Services to present a Draft Constitutional Amendment Bill for their consideration.

Adv Charmaine van der Merwe, Senior Legal Advisor, Office of Constitutional and Legal Servicers, stated that Parliamentary Legal Services was not made aware that they needed to present anything. She offered to take members through the Bill as it was– she asked whether this was what the Chairperson had in mind.

Mr V Xaba (ANC) raised a point of order. The Committee had not received the agenda for the meeting.

The Chairperson stated that the agenda was what was stated previously. It was a historic day on which they would begin to deliberate on the Draft Bill. That was the agenda. After all the discussions, it was incumbent on the Parliamentary Legal Services to reconsider the draft considering the inputs by the members. That was why he had afforded them that opportunity. If they had nothing to add, it meant that he would open the floor to Members to begin deliberations on the Bill. Members were given until 3 May 2021 to go to their political parties and seek mandates. They would now depart on the premise that they were all ready to engage.

Discussion
Dr M Ndlozi (EFF) stated that as a matter of principle, and as a point of departure, they needed to refresh their memory of the mandate that was initially bestowed upon them by Parliament who established the Ad Hoc Committee. It was specifically stated that they should give special consideration to amend section 25 of the Constitution to make the matter of expropriation of land without compensation explicit. There needed therefore, to be a consideration of the entire section to make it coherent. By implication that did not limit them to some of the subsections. He suggested that they go through each subsection and agree on what needed to happen in each one. The Bill only had one line that it proposed, if he was recalling correctly. They would discuss the whole section. Then they needed to hear the proposal. Thereafter the Chairperson needed to take them through it section by section. They would then agree on what every subsection needed to read like.

They had two interests as a matter of principle. The first related to the subsection that should explicitly state ‘may be expropriated without compensation only in terms of the Law of General Application for a public purpose or in public interest.’ They also had an interest in the reformulation of some of the subsections and the removal of subsection (3) with the replacement of ‘the State should be the custodian of all South Africa’s natural resources inclusive of land, mineral resources and water. Relevant legislation should be passed to contextualise the custodianship of natural resources.’ They believed that subsection (7) needed to be removed. As it stood, it limited the consideration of land reform to 19 June 1913. This was a historic revision because the colonial dispossession, that the subsection spoke about, did not start in 1913, in fact in 1913 it was concluded. After 1913 ‘cosmetic’ removals took place and the expansion and emergence in urban areas of ‘spaceless spaces,’ they called townships. The redrafting of geographic lines and borders occurred in 1913. There should not be a limitation in this regard. Accordingly, they believed that it should be replaced to state that ‘no provision of that section may impede the State from taking legislative and other measures to achieve land, water and related reform in order to redress past racial discrimination, provided that any departure from the provision of that section was in accordance with the provision of section 36, subsection (1).’ Parliament must enact the legislation referred to in subsection (6).

He read out the wording of the section as they envisioned:

Subsection (1) ‘the State including Parliament, Executive and Judiciary carry the obligation to redress imbalances of the past through the enactment of laws that would achieve redress and equitable redistribution of land of all resources.’

Subsection (2) ‘Property may be expropriated without compensation, only in terms of the Law of General Application for a public purpose or in the public interest.’

They believed that subsection (3) should be removed. It should be replaced with ‘The State should be the custodian of all South Africa’s natural resources, inclusive of land, mineral resources and water and relevant legislation should be passed to clearly define and contextualize State custodianship natural resources.’

Subsection (4) (a) ‘The public interest includes the Nation’s commitment to land reform and reforms to bring about equitable access to all South Africa’s natural resources and properties not limited to land. (b) Property is not limited to land.’

Subsection (5) ‘The State must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.’

Subsection (6) ‘A person or community whose tenure of land is legally insecure as a result of past racial discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.’

He suggested the removal of subsection (7), he had read this out previously.

The EFF was open to changes relating to the terminology in terms of dispossession. They cautioned that the stage they were at should not involve debate as the amendment would be followed by an Act. The Act would then deliberate and detail the details thereof. They were not persuaded at all that the responsibility of land redistribution and the tools thereof should be put in the hands of the courts. That would result in judicial overreach. It was also a statement of no confidence in the executive that was democratically elected and empowered by the people. The role of courts in a democracy was not to govern. The role of courts was to resolve whatever disputes in relation to the land and law which would otherwise have been agreed to by Parliament. They could not give the courts the governance responsibility - to be responsible for land distribution. It must sit with the Executive.

Mr N Shivambu (EFF) fully endorsed what was said by Dr Ndlozi in terms of the amendment. As part of their mandate as the Committee, they were given a clear instruction that they should have regard of the work done and recommendations, as contained in the reports of the Constitutional Review Committee and previous Ad Hoc Committee, in terms of section 25 of the Constitution. It would be fool hardy for them to only discuss the draft Bill as it was proposed without taking into consideration the submissions that were made in relation to the entirety of section 25. The people on the ground already gave an opinion in terms of what they should do to all the subsections that were under section 25.

In terms of the submission made by the Department of Justice that they should not speak to other aspects (with the exception of the Draft Bill) – that was entirely problematic. It was not consistent with how Parliament functioned. It would render the public submissions to be futile. The people had already given a perspective in terms of how they needed to proceed. They had an obligation to look at the entire section 25 and then propose it to Parliament for adoption.

Prof A Lotriet (DA) referred to the commentary made about it being a very ‘historic day.’ It was also historic in the sense that they were celebrating 25 years of a very progressive Constitution but they were starting a process where people’s property rights were being put in jeopardy. It was ‘historic’ in a different sense. It was important, following the previous inputs, that they proceed with absolute clarity about their mandate. Any discussion would need to refer back to the Committee’s mandate. They could not add things as they felt like, as a Committee. There was a very clear process in Parliament – that should they want to go beyond their mandate, they had to go back to the National Assembly for approval.

She read out the Committee’s mandate, ‘Amend section 25 of the Constitution to make explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation as a legitimate option for land reform.’ Nothing more, nothing less. It would therefore be a futile exercise for them to go into long deliberations on different clauses of section 25, if they were not in line with their mandate.

Dr C Mulder (FF Plus) noted that the Chairperson had opened by saying that it was a historic day. That was indeed the case. It was the first time in 25 years, since the adoption of the current Constitution, that any Committee of Parliament was going to attempt to amend the Bill of Rights. That was historic and it obviously had huge implications. That was why the Constitution had specific provisions in terms of how one should or could amend the Constitution as well as, specifically, the Bill of Rights. They needed to operate within those provisions of the Constitution. They were not only dealing with section 74(2) of the Constitution, which dealt with the Bill of Rights. When they amended chapter 2, they also needed to take cognizance of chapter 1, which dealt with the founding provisions of the South African democratic State. Section 1(c) referred to the supremacy of the Constitution and the Rule of Law. The Rule of Law meant much more than being procedurally correct. Internationally if one considered what the Rule of Law meant, one would find that it also had specific interpretations in terms of the law of owning property. They were trying to achieve the right to own property by certain citizens of the State. That could never be, in terms of the Rule of Law. There was a huge distinction between expropriation, as provided for in the current Constitution, or in any other Constitution, in terms of the Law of General Application, everyone understood that. The intention here was to deprive certain people of property in total, and to do that at nil compensation. One should not mistake expropriation without compensation for ‘confiscation.’ If one took away people’s property arbitrarily, this would be considered confiscation.

He agreed with Professor Lotriet, that they were bound by the mandate which she had read out. They did not have any other mandate. It seemed as if some people were trying to interpret the mandate in a different way, because they had different views. That was definitely not the mandate of the Committee. It was not the mandate they were given by Parliament. If they tried to change the mandate during the process they were busy with, it would have huge implications. He referred to section 1(c) which was the founding provisions and implications of what the Rule of Law really meant. Section 74(1) expects Parliament to amend with a 75 percent majority. That was where this would end. They were breaching the principle of the Rule of Law.

If they did not abide by their mandate they would have a procedural problem, which would ensure that the exercise would fail purely on procedure, regardless of the content one was trying to change. If one went outside of the mandate, they would fall foul of the process. There was a whole public participation process and provisions, findings and judgements of the Constitutional Court in line with their mandate. The public was not asked to comment on the things that were now being proposed – including the re-writing of the whole of section 25 and that the ‘State should take control of all National resources.’ If they went outside of their mandate, he reiterated, they would fall foul procedurally. He therefore asked that they stick to their mandate.

The Chairperson asked whether they should take into account what the public had suggested. If they did not take it into account it would mean that it was not necessary to have public opinions - It would affect the issue of their mandate. When they dealt with the issue around the Rule of Law in Africa and the ‘third world,’ there was a history dating back to the report of the International Commission of Jurists of 1951 and of the sixties, where the Rule of Law was defined in the African context. One had to take into account the historical context in which the Rule of Law had to be applied. He recognised Mr Xaba, he was impressed with the contributions of Dr Ndlozi, Mr Shivambu, Professor Lotriet and Dr Mulder. They all understood why they were there. He hoped that those who came after them would take their example and get to the issues straight away.

Mr Xaba stated that he disagreed with Dr Mulder that the process of amending section 25 implicated section 1(c) of the Constitution – and thus the majority required to pass the Bill was 75 percent of the members of the National Assembly. When he started, he cautioned them against imposing their own individual views on the process. This was his interpretation of what the Rule of Law meant in that regard. He suggested that they do not get bogged down about the majority required – whether it was 75 percent or a two thirds majority. Parliament would make that call at the right time. They needed to produce a Bill that would come and serve before Parliament. They did not have much time, they were given until 31 May 2021 to complete the process and submit their report with the proposed Bill to Parliament.

He advised against debating the matter of the majority required at this stage, as they were not called upon to do that. Parliament would make a call when it had to deal with the Bill. He agreed with Professor Lotriet, that they needed to have the mandate of the Committee at the back of their minds each time they engaged with the different provisions of section 25. In the previous meeting they had agreed that the Chairperson’s team would retrieve the mandate so that they did not have different interpretations of the mandate. It was very clear and written in plain language. They needed to use it as the point of departure. The Administration had done that. They had seen the first resolution. He had also seen the resolutions of the Constitutional Review Committee, whose report gave rise to the Ad Hoc Committee. He did not think they were far away from what they had been mandated to do as an Ad Hoc Committee on section 25.

They had facilitated public participation. The Constitution had mandated them to do that. What was the point of public participation if they did not listen to the views of the public? They would be accused of ticking the box. The money Parliament paid for them to undergo the process – it was so much that they could not risk being accused of not doing justice to the process.

They should go back and deliberate. They would be guided by Parliament’s Legal Team. Right from the beginning – what did the Bill say? What did the public say? What did they say? From the first to the last clause. The Legal team would advise them if they touched on a clause that was not in the public Bill – in terms of what the process was that needed to be followed. This would allow them to stay within the framework of the law.

He disagreed with Dr Ndlozi. They were dealing with the property clause; they were not just dealing with section 25 – it was not about land. It was about property in general. One could not overnight say that people had lost their right to property of whatever nature. That would be robbery. He suggested they confine themselves to the issue at hand. Land was property, but ‘property was not just land.’ ‘Property was more than land.’ As they discussed it, they needed to have that in their minds that in section 25, they needed to be clear, in terms of their proposals so that they did not go beyond the issue in hand. 

The Chairperson stated that they needed to proceed with an understanding of their mandate. Their mandate said that they needed to make explicit what was implicit in the Constitution. Should they read section 25 as a whole or should they focus on particular sections? He suggested they keep that in mind as they engaged – until they agreed or disagreed. Whether or not they were exceeding their mandate – they could not be judges in their own case. He suggested they focus on the text. In the event that they exceeded their mandate ‘they could not judge themselves.’ Parliament would call them to order and redirect them. They were all seeking to persuade one another and that was how democracy functioned, or should function.

Ms K Mahlatsi (ANC) stated that prior to the release of the Bill, the African National Congress (ANC) made specific inputs into the Bill. In that meeting, Parliamentary Services indicated that there was general compromise in terms of how the Bill needed to go out. The Committee agreed that the Bill should go out, but it would take cognisance of the inputs that were made by all political parties in that particular meeting. She was a bit surprised that the same Parliamentary Legal Services came and said that they needed to confine themselves – over and above the fact that they would not be doing justice not to listen to the public participation processes. She suggested that Parliamentary Legal Services should provide clarity. The political parties had previously made inputs in terms of what they wanted to see in the Draft Bill. The inputs made, at the meeting referred to, were on record. She requested clarity from Parliamentary Legal Services in that regard.

The Chairperson echoed the points raised by Ms Mahlatsi in terms of them publishing a ‘compromised’ Bill to be able to kick start the process. The views of all the political parties were not taken into account at the time. He was not sure that they should ask clarity from the Parliamentary Legal Services. It was for them, as political parties to decide – as they had allowed the compromise.

Mr P Moroatshehla (ANC) stated that the Chairperson’s opening remarks and the views of the majority of political parties was taking them where they needed to go. Their mandate was never given to any other person except the Committee. Any other person who came with advice was simply a view that they could note. They would speak to the mandate they were given. He supported Ms Mahlatsi, Dr Ndlozi and Mr Shivambu’s views. They needed to go through the section, subsection by subsection, to arrive at their mandate to make what was implicit explicit.

The Chairperson stated that they were ‘interpreting’ the Constitution, the law of interpretation, said that when one read a document, one read it as a whole. Their mandate was to make explicit what was implicit in section 25. That meant that the subsections of section 25 needed to be read together because they were intertwined and mutually reinforcing. He agreed with the suggestions made by Dr Ndlozi and Mr Shivambu in that they would read the section as a whole. If at the end they found that it was wrong to read it as a whole, it would be ‘their decision.’ Let them not compartmentalise the subsections at the beginning of the discussion.

Dr Ndlozi stated that they should not be selective when they read what their mandate was. He wanted to read it out. ‘Establishes an Ad Hoc Committee in terms of Rule 253, the Committee to initiate and introduce legislation amending section 25 of the Constitution. Have regard to the work done and recommendations as contained in the Constitutional Review Committee Report. Consists of 11 voting members and 14 non-voting members and exercise those powers as set out in section 167.’ That was the entire resolution that established them. How they must be, what they needed to discuss and so on. If one had regard to what was contained in the Constitutional Review Committee Report, one would know that it was a very thick report, that was written after public consultations. Here was the report, they had already agreed. They could not go back. The Constitution was being amended, to make explicit expropriation of land without compensation. There were public submissions that wanted to review that decision – they did not have that mandate – regarding whether or not to amend the Constitution. There was a Committee that had that mandate, that Committee wrote a report, which went to Parliament and was adopted. They made the decision to setup a Committee to amend the Constitution for the expropriation of land without compensation. The debate about ‘human rights’ had already taken place. They were currently dealing with the wording etc. They could not keep going back to the same questions and queries regarding the process.

When they spoke of land reform, there was a time when crimes against humanity occurred. This lasted for a couple of centuries in which there was racial or racist, dispossession of land by the apartheid and colonial regime in favour of white people. That was what they were trying to correct. They were not trying to make people ‘property-less.’ They were trying to correct a crime. They were trying to ensure that the future was not exclusionary to Black people in relation to the ownership of the land. This notion was not inconsistent with the Rule of Law – that argument should be dismissed as dishonest. The Rule of Law was a principle that all of them must be subjected equally to the law. Groups could not arbitrarily conduct themselves with disregard to the general laws of the Country. They were setting up a law that they would all be subjected to. They had held public participation processes; it was done democratically through a democratically elected Parliament. It would be subjected to the courts of the law – it could be taken to a court to check if it was consistent with the Constitution or not. They could amend the Bill of Rights. They needed to ‘expropriate land – for the correction of a crime against humanity’ – historical dispossession of land from Black people by White people. They were not making an arbitrary law.

In relation to property, they were going to expropriate property because it was dispossessed. They would take it and redistribute it equally to people – in favour specifically of those that it was dispossessed from, Black people. The laws about the protection of property should not protect the dispossessed status of Black people. If they left things as they were – in terms of not being able to touch the question of property because it would be a violation of rights – it was denial that there were those amongst them who lived under the conditions of dispossession. How did they include them, without touching property? There were not a lot of White people who owned land in the Country, there were only a few that did, ‘the tip of the iceberg at the top of White society.’ When they redistributed the land and 80 percent belonged to Africans, there would be a lot of White people in the nine percent of the population who would benefit – who at the moment did not have land. It would not be a racist distribution – that was a desperate attempt to stop a process that would anyway correct a greater problem. They needed to be unapologetic. At the time they had agreed that they would release the Bill. People had made submissions subsection by subsection and he thought they should move in the direction as indicated.

The Chairperson stated that they should not reinvent the wheel; the debates about human rights and the Rule of Law had already taken place. The debate about forceful dispossession as a crime against humanity had been dealt with. They were now dealing with the text. He did a master’s degree at Harvard University in the United States (US) on human rights. He did his doctorate in law on the concepts of law and justice in the African context. He knew that there were different interpretations of those concepts. This was not an academic exercise to define concepts. Their mandate was to formulate the amendment of section 25 to make explicit that which was implicit.

Dr Mulder stated that he had listened to what Dr Ndlozi had said. He had an issue with the building of arguments based on ‘myths’ which did not necessarily make them true. It did not help. The Chairperson mentioned that they had already discussed the issue of Rule of Law and the Bill of Rights – he was not sure when those things were discussed. He had attended most of the meetings and he did not recall them being discussed. It was also highlighted that the Chairperson studied at the University of Harvard and his familiarity with certain issues with regard to law. If it assisted, his own doctorate was also in law, it was in Constitutional Law. Therefore, if he said something about the Rule of Law, it was because he knew certain things about the Rule of Law. They could all have a different interpretation. In the end a Constitutional Court would interpret the Rule of Law in terms of the whole process.

He referred to the Constitutional Review Committee and the report that was drafted that contained certain recommendations. More than 500 000 written submissions were ignored by the Constitutional Review Committee – submissions against the whole process. This would not go away – that would resurface when the case went to the Constitutional Court. They all knew that. Therefore, they could not just refer to the report – the report was likely flawed as well as the process thereof – but time would tell.

The current mandate said that they should have regard to the recommendations. Why did the Chairperson read the mandate every meeting and then stop at a certain point? Professor Lotriet correctly read the entire mandate. They should make explicit what was implicit ‘with regard to’ and then it clearly stated what they should do. The Chairperson could rule that it applied to the whole of section 25 – that was not their mandate. That would be the Chairperson’s interpretation – but it would not be in line with the decision taken by Parliament nor the mandate that they had. Did they inform the public when they participated that it was a compromised Bill? That they would ‘listen to the public but the Committee would then, all by itself, amend section 25.’ Take it subsection by subsection and go right through it from the beginning to end.

Dr Mulder stated that Dr Ndlozi had referred to the whole question of land dispossession. Should they then discuss who dispossessed the Khoi and the San of their land? They should go way back and look into that as well? It was not so simple as to make it a ‘Black and White’ issue. He asked Dr Ndlozi what his position was with regard to traditional land being occupied/owned by the traditional leaders in South Africa. Was that also part of this process? Were they talking about all property? This dealt with the issue of the right to own property. Unlike what Dr Ndlozi thought, the property and land in South Africa did not belong to a few individuals. There were a couple of million Black people who owned property in South Africa. It was not that simple. It may fit a certain narrative but it was not the case.

His concern was that it was obvious that certain political parties had taken the initiative throughout the whole process since day one. The Economic Freedom Fighters (EFF) had brought the first motion in 2018 – the ANC then followed. They were the ones that formulated the resolution in the Constitutional Review Committee, the ANC had followed. It was quite clear in the current process that the EFF was taking the lead and the ANC was following. He understood that if one worked in terms of the two thirds majority, in terms of section 74 (2), the ruling party needed a two thirds majority. The only party, it seemed that could give the ruling party that two thirds majority was the EFF. The ANC was in need of 37 votes in Parliament, and the EFF had 44 votes. How far would they go to try and accommodate the ideas of the EFF. The EFF had made their ideas clear by saying that ‘all property should belong to the Sate – and the State should be the custodian of everything.’ Was that the view of the ANC? If that was the view of the ANC, then they should go ahead with the whole process and implement that. If it was not the view of the ruling party, he asked that they clearly state that it was not their view. They would then know that the two thirds majority would be a problem. The Rule of Law would not be swept aside. If they started reviewing each subsection, they were outside their mandate and should undertake a whole new review process.

The Chairperson stated that it was not the duty of the Chairperson to repeat the mandate all the time. It was not a Black and White issue; it was a South African issue. They were tasked with finding solutions to the historical problems they had. They would not think away the Khoisan or pretend they did not exist.

Mr N Masipa (DA) agreed with what was stated by Dr Mulder. The mandate of the Committee was to make explicit, that which was implicit in the Constitution, regarding the expropriation of land without compensation, as a legitimate option for land reform. With the argument put before them, they needed to make explicit what was implicit. It was not so much an amendment as a clarification of how to expropriate land without compensation. If the majority of the Committee felt that they needed to go beyond the mandate they were given, they would need to go back to Parliament and ask permission to do so. Otherwise, they would be in breach of what they were given as a Committee. They had gone to the people with a clear understanding of asking their input in making explicit what was implicit in the Constitution.

The Chairperson asked that they allow him to guide the proceedings. He had said repeatedly that they had reached a stage when they needed to deal with the text of the Constitutional amendment. The other issues and debates ‘were no longer relevant.’ If they formulated the amendment, and in the process exceeded their mandate, when they presented their report to Parliament, it would be determined whether or not they had exceeded their mandate. It was not for them to stall the proceedings on the suspicion that they may or may not be exceeding their mandate. He would allow Members to deal with the text and not other ‘side issues.’

Dr Ndlozi stated that there were ‘direct provocations’ to them. He felt it would be fair for them to respond to them. He had started with the text and stuck to the text. He had made his proposal. He wanted to repeat, that if the Members were to read the resolution, it asked them to follow or take consideration of the Constitutional Committee report. If one considered that report, one would know that the issues around the Bill of Rights and Rule of Law were ventilated.

The Chairperson interrupted him and directed him back to the fact that they would be dealing with the text.

Dr Ndlozi stated that they were well within the mandate of Parliament to consider section 25 and make explicit all of it, to achieve land reform.

Prof Lotriet stated that she realised the Chairperson had provided some direction to the meeting but she concurred with what Mr Masipa and Dr Mulder had previously said. She did not agree with the Chairperson’s interpretation of their mandate – in terms of exceeding it and only then going to the National Assembly to discuss whether it was exceeded. She referred to an example of a Committee where he was the Chairperson, also an Ad Hoc Committee, where they had to amend the Powers and Privileges and Immunities of Parliament and Provincial Legislatures Act after a Constitutional Court judgement. In that process, they realised that as an Ad Hoc Committee they were in fact going beyond their mandate. They had gone back and got approval to proceed. That was how they should be approaching this. If they did discuss the Bill as gazetted – as that was what the public commented on – she would suggest proceeding with the discussion and partake in it. If it was an open discussion where they included things not in their mandate. The mandate was specific. An Ad Hoc Committee did not have unvetted rights to do anything they wanted to. They worked on the mandate of the National Assembly.

The Chairperson stated that Professor Lotriet was correct in saying that when they dealt with Powers and Privileges Act, they were not sure whether or not they were exceeding their mandate. They had gone back to seek guidance. That was a unanimous decision of that Ad Hoc Committee. In this meeting there were differences of opinion.

Mr Shivambu stated that he though the issue of the mandate had been clarified. It would be wrong if they did not refute sometimes the ‘continued destruction of their history’ and the continued ‘colonial stratification of indigenous Africans.’ They were all indigenous here, they did not ‘come from Europe, they were not settlers there….’

The Chairperson interrupted Mr Shivambu and stated that he was right that that matter must be dealt with. In the amendment of section 25, they needed to deal with the position of Khoisan, indigenous Africans and so on. It did not need to be debated. They needed to formulate the section.

Section 25 subsection (2)

Mr Shivambu referred to section 25, subsection (2), it stated that ‘property may be expropriated only in terms of the Law of General Application.’ Subsection (2)(a) stated ‘for a public purpose or in the public interest and (b) subject to compensation, the amount of which and manner of which have either been agreed to by those affected or approved by a court.’ Where was the explicit expropriation Bill? There was nothing implicit about expropriation without compensation in the current framework. It said that if one was going to expropriate property, it must be subject to compensation in terms agreed by those who were exchanging the ownership of the property or by a court of law. It was a problematic notion to suggest that the current Constitution provided for expropriation without compensation. It did not. That was why the formulation proposed by Dr Ndlozi was the correct one of rephrasing subsection (2) of the Constitution.

Section 25 subsection (3)

In terms of subsection (3), it referred to the time and manner of payment etc. The aspect that said the ‘history of acquisition’ – already supposes that those that occupied the land had acquired it through legitimate means. This was not the case. It was a colonial, barbaric, racist dispossession of the land – but here one was told to look into the history of acquisition. There was no history of acquisition. The majority of them were descendants of the original colonial settlers. They needed to put this into a clear context. That was why that entire subsection needed to go. There was no history of acquisition that defined settlers relationship with their land currently. That was why they needed to rephrase that subsection completely. If they effected any amendment and left subsection (7) as it was, that would be the most foolish thing to do. It would have been a waste of time to then say, they would only consider the land that was dispossessed post 1913 – the indigenous Africans only had seven percent of the land at that time. Subsection (7) must be deleted, if anyone suggested otherwise – they were not committed to the process they were currently engaged in. If the ‘White political parties’ thought they could contest the issue around the mandate – let them debate it in Parliament, if they wanted to go to court, they could go to court – they would justify that it was within their mandate. He did not think it was a problem – let us not be in a ‘merry-go-round’ debating the same issue time and again.

The Chairperson stated that he was not aware of White or Black political parties in this parliament. All parties had members from all races. That was not the issue. It was suggested that they go section by section

Mr Moroatshehla agreed.

Dr Mulder disagreed, he expressed that this would be outside of their mandate.

Dr Lotriet also disagreed with the proposal to go through it section by section. They should go through it clause by clause, as they had it today, but as what was presented to the public. That was the mandate of the Committee. In terms of the Rules of Interpretation the most sensible thing to do was to consider the whole of section 25.

Mr Xaba referred to clause (1). Clause (1) read ‘No one may be deprived of property except in terms of the Law of General Application, and no law may permit arbitrary deprivation of property.’ He proposed that the clause remained as it was.

Dr Ndlozi stated that it would not help Dr Mulder to be a ‘historic denialist…’

The Chairperson interrupted to state that Dr Ndlozi had provided leadership and stated that they should deal with the text. They had begun to deal with the text. If he followed what Dr Mulder was saying, Dr Ndlozi would derail himself from that task. He suggested Dr Ndlozi follow the matters at hand.

Dr Ndlozi wanted to persuade Members on the issue of a democratic state. From time to time they had used the example of the Mineral and Petroleum Resources Development Act (MPRDA), it did not create any problems. A lease was a form of property – a legitimate property right. It could be protected so that in future no race or group could repeat what happened before. Not through brutal strength nor financial strength could anyone ever take them back to the situation they were in. The majority of people did not have access to something as simple as settlement land. The democratic state from time to time would be able to make sure that there was this access to dignity of settlement/agricultural land. This was extremely wise with the history of South Africa and the ‘correct’ history of dispossession. The land would in the end always belong to a future generation. Therefore, they were borrowing it as this generation. It must always be under the custodianship of the democratic state. The democratic state included traditional leadership – they were part of the executive arms of the democratically arrived at State. They would administer on behalf of the people. It must explicitly state who was responsible. Custodianship needed to be introduced later – being in the hands of the democratic State. The mandate of subsection (1) should read ‘The State including Parliament, Executive and Judiciary, carry an obligation to redress imbalances of the past through enactment of laws that will achieve redress and equitably redistribute all resources.’

Prof Lotriet stated categorically that the process they were following, discussing the sections of section 25 one by one and not confining themselves to the Bill, as presented to the public and to the Committee, was outside of their mandate and it was not procedural. They would therefore not be a part of this discussion. They would be part of the discussion within the mandate of the Committee – and that was to discuss the Bill. She requested that this be noted in the minutes.

The Committee Secretary stated that what they had before them presently was the Bill as advertised. They should be looking at the comments and give instructions to Legal Services. They should factor in the proposed amendments that came from members of the public. He indicated that, in terms of Rule 274(2), they were not required to publish a Bill in its final form, therefore members were free to still propose amendments that were not in the Bill, as advertised. He suggested that they deal with text that was published and then if Members felt that they also wanted to amend other sections that were not advertised, they could do that. He did not think they should be going through the section – that was not what they had before them. If there was a need to amend other clauses or subsections that could be raised. He suggested they be guided by what was published.

The Chairperson stated that what the Committee Secretary had suggested ‘was not in conflict with what they were doing.’ The Committee Secretary had said that they were not confined to the Bill as advertised. They could consider other things if they thought it was necessary. He had ruled that they go section by section departing from the Bill as advertised without compartmentalising the speakers. He suggested they proceed clause by clause bearing in mind that the Bill was the point of departure.

Mr Masipa echoed what Prof Lotriet had said. If the Committee wanted to add additional amendments, it needed to go back to the National Assembly. It would need to go back to the public. Their mandate was very clear. They had a Bill that was published that was before them. They were not there to talk about ‘nationalising the Country nor the land.’ They were there, as sent by Parliament, to make explicit what was implicit in the Constitution.

The Chairperson stated that Mr Masipa and Prof Lotriet did not have veto powers. The Committee would not proceed on the basis of the opinion of only two of its members. Not everyone agreed with Mr Masipa. If he did not want to express himself on a certain clause, he should just abstain.

Mr Shivambu wanted to emphasise the point that the issue around ‘mandate’ had been dealt with. If the other political parties felt that the process was not what they thought it was, they had the right to withdraw. Withdrawal in Parliament was ‘a form of participation.’ It was a form of saying that one did not agree with the process.

The Chairperson stated that they could ‘not be judges in their own courts.’ The final arbiter in these matters would be the National Assembly itself. He suggested they focus on the text.

Ms Mahlatsi stated that it was important that Members voiced their views on the process to so that it did not seem as if there were few people who supported the approach that was being undertaken. If Mr Masipa and Professor Lotriet did not agree, they were in the confines of the law to feel as such. The Committee would follow the process as proposed. In the Agricultural Bill they were of the opinion that the holistic approach be taken. It was unfortunate that when they came to section 25, some Members had a different perspective on the issue. They were Constitutionally allowed, given the mandate of the Committee, to continue in this fashion. If they disagreed, they were more than welcome to watch the Committee proceed.

Dr Mulder stated that he agreed with what was stated previously by the Committee Secretary.

The Committee Secretary suggested that they proceed with it in two stages…

Mr Xaba raised a point of order.

The Chairperson stated that a point of order could not be raised on half sentence. Let the speaker finish.

The Committee Secretary proposed that they deal with it in two stages. First, to look at the Bill that was advertised and take into account the amendments that were proposed during the public participation process. Once they had unpacked that – Members could express themselves regarding the bill as it was, or whether they wanted to propose further amendments.

Mr Xaba stated that the Chairperson had ruled on the matter. He had not understood why the Committee Secretary would insist that they start with the Bill and deal with other clauses later. They could combine the two processes.

Mr Shivambu concurred with Mr Xaba’s proposal.

The Chairperson stated that they would continue in that manner and seek legal opinion on the validity or otherwise of Rule 274(2). When they came back, there would be a legal basis for the argument.

Mr Xaba stated that they should go through the sections in order. The sections were mutually reinforcing.

Dr Ndlozi agreed with Mr Xaba; it was not hard to disagree with the logic of his proposal. He stated that the Chairperson was zig-zagging – he had previously ruled on the way forward. The Committee Secretary’s proposal was not contrary to what was previously proposed.

Mr Masipa stated that he was worried about Mr Xaba, whom had agreed with them initially and was now not going according to what he had previously said. Mr Masipa emphasised that they should take the Committee Secretary’s point – as he was there to advise them.

The Chairperson stated that wise men and women changed their minds.

Mr Moroatshehla wanted to allay the fears of Mr Masipa. If they went subsection by subsection, they had not excluded people from making mention of the Bill with regard to those subsections. He suggested they approach it holistically.

Dr Mulder stated that if he was not mistaken the discussion for that day, was meant to be on the Bill. He had been convinced by the Committee Secretary that they should follow that course of action and discuss the Bill. If Members wanted to refer to other subsections of section 25, that was something else. He also agreed with Prof Lotriet, the process would be wrong if they did it as proposed.

The Chairperson stated that the Committee Secretary had suggested they start with the Bill and deal with other sections later. The other Members were suggesting they adopt an integrated approach, a holistic approach, and not two stages, because the two stages were not mutually exclusive.

Section 25 subsection (1)

Mr Xaba referred to the structure of section 25. He maintained that they were dealing with one section, not too many sections, it was just that there were nine subsections within it. The holistic approach as applied to that was appropriated. The section had four components in it. The first component was the section 25 component that dealt with deprivation. Deprivation was different from expropriation and they needed both in section 25. The second component was expropriation which was provided for in subsection (2) and (3). The third category was subsection (4) which dealt with the interpretation of the provisions of the property clause. The last category from 25 (5) to 25 (9) dealt with the promotion of land reform. This was where they saw the land reform process prominently stated.

He went back to the issue of deprivation and expropriation. If one considered section 25 holistically, it provided two ways in which the State may interfere with property rights. The property rights they were talking about were not absolute property rights. Within section 25 it stated there was a transformative character that needed to be taken into account. Its primary function was to protect existing property rights. It was aimed at achieving social transformation in accordance with Constitutional values. It was critical that they approached this with the objective of section 25 in mind. The clause relating to deprivation should be retained as it was. It authorised a limitation in the use, enjoyment or disposal of property for the sake of promoting a public good without compensation. The right in land may be terminated with no requirement for the State to pay any compensation, as opposed to expropriation. Expropriation occurred around the world – it was legally expected that there be some compensation. When they considered expropriation they needed to look at how they approached it in such a way that they achieved the objective of ‘having land without paying a cent.’ He therefore suggested they did not get rid of the other instrument, deprivation, that was provided for in the Constitution. The State could invoke this when they needed to deal with the issue of deprivation.

Section 25 subsection (2)

Dr Ndlozi stated that their proposal was the following:

Subsection (2) ‘property may be expropriated without compensation (a) only in terms of the law of general application, (b) for a public purpose or in public interest.’

In the public submissions, there was a very powerful suggestion to state that property be ‘repossessed without compensation,’ taking into account the actual conceptual weight of the word repossession. They agreed with that.

Remarks relating to subsection (1)

The Chairperson stated that silence on subsection (1) must have equated to consent.

Mr Masipa stated that was not the case. They did not consent. They did not agree with the flawed process.

Mr Shivambu stated that he had not understood Mr Xaba’s proposal. The State had a responsibility to redistribute resources equitably. That was the context in which they were proposing a different phrasing. He referred to the issue around ‘deprived’ given the historical context of people being dispossessed of their land. The piece-by-piece method of land redistribution would be frustrated by that component. He suggested they pay attention to what the Minister of Public Works spoke to, she said that when there was an attempt to take land for public purposes to be used for Eskom’s electricity power lines, the process lasted more than seven years. That was supposed to benefit a lot of people. Farmers said they did not want power lines passing through their farms. They could open the Constitutional Amendment with an affirmative viewpoint to the distribution of land equitably. That section in its current form was going to become part of the problem.

The Chairperson suggested they park the issue regarding ‘deprivation’ as Members may not have given it attention yet – Members should inform themselves about deprivation versus expropriation. They would come back to the matter the next time. It did not need to be finalised that day. 

Remarks relating to subsection (2)

Mr Xaba stated that the EFF, he had read their submission, it said ‘Property may be expropriated without compensation.’ Was it their position that all property may be expropriated without compensation? He did not want to read too much into it, if that was not what they meant. ‘Property’ could mean anything that was defined as property – i.e it was not limited to land.

Dr Ndlozi read the current formulation. It stated that ‘property may be expropriated only in terms of Law of General Application (a) for a public purpose or in public interest (b) subject to compensation, the amount of which and time and manner of which had either been agreed to by those affected decided or approved by a Court.’ One was amending a formulation that already referred to ‘property.’ He repeated their previous proposed changes. Therefore, they would not have a need for subsection (d) that related to compensation.

Mr Xaba understood what Dr Ndlozi had stated regarding the current and proposed wording. However, in terms of the current wording – it provided for the compensation of the dispossessed. When one spoke of nil compensation, one needed to be specific about what exactly was meant.

He proposed that it read ‘property may be expropriated only in terms of the Law of General Application for public purpose or public interest and subject to compensation, the amount of which, and time and manner of payment of which may either be agreed to by those affected or decided or approved by a court, provided that in accordance with subsection (3).’

This empowered government to determine circumstances under which nil compensation may be paid – subsection (3)(a). One was essentially separating the expropriation of land from property in general. The one provided for circumstances under which such expropriation may attract a nil compensation.

The Chairperson stated that the key element in the Rule of Law was that no action should be arbitrary. They did not want to rush anybody.

Dr Ndlozi stated that he could not appreciate all of Mr Xaba’s logic. He suggested that it might be beneficial to see it in writing, as it was not clear. He wanted to address the question of ‘nil’ – he did not agree with the use of the word ‘nil’. They wanted to be very clear by saying ‘without compensation.’ In terms of the formulation in the current Draft Bill – there were problematic aspects, for instance the inclusion of the court. The public engagements had been clear. He stated that he may have misinterpreted Mr Xaba’s suggestion – was it different to the Draft Bill’s formulation. There would still be legislation, thus he suggested that they should not re-write legislation at this level.

The other question dealt with the arbitrariness that the Chairperson had referred to. The Law of General Application was the guarantor of non-arbitrariness. When they stated that ‘only in terms of the Law of General Application be for a public purpose or in the public interest.’ They had in mind that there would be an Act, which spoke to the detail of those things. They would only need to qualify it in terms of the Law of General Application in terms of public purpose or public interest. At this level they needed to be completely unequivocal, otherwise one would be caught in long processes of litigation i.e. in relation to the power lines.

Mr Shivambu stated that it would be helpful for suggestions to be written down, as they had done. This would allow them to consider the phrasing and deletion of clauses. It bordered on cowardice that the ANC had not done so. Why did they not just say what they wanted so that they could deliberate on that basis? When they went into the elections, this was promised – why were they not doing so – nor clear of what they wanted?

Ms Mahlatsi stated that Mr Shivambu should not pre-empt what the ANC ought to do. They had their own mandate. Mr Xaba had provided a framework on how they wanted to phrase the content of the Bill. If they were to take the route of making submissions per clause, they should be given an opportunity to do so. They were not alone, there was public that was listening. They needed to provide context to the content - that they were informed by particular policy imperatives. If they were given an opportunity to submit to the Committee per clause – let it be. This would allow them to discuss it holistically.

Mr Xaba stated that he was covered by Ms Mahlatsi. At the next meeting they would have a more thorough constructive discussion relating to the text. He thought it would be useful if the parties could decide where they stood in terms of bilateral agreements – so that the next time they met they would have isolated issues and could address issues of disagreement and alignment.

Mr Shivambu stated that they had worked on the phrasing a number of times before. Both the Constitutional Review Report and the report they were meant to deliberate from had the proposed phrasing per party. They were not averse to the bilateral engagements. If it required that, to reach consensus.

The Chairperson stated that the bilaterals would be important so that some of those issues could be dealt with – so that when they came to the committee, they could deal with the most essential things. There needed to be engagement on the issue of deprivation versus expropriation and nil compensation. The circumstances that needed to be dealt with were in terms of the Law of General Application which could also be discussed there.

Dr Ndlozi stated that they were not in any position to dictate to the other parties, they were merely appealing to them to know what the position of the ANC was on this matter. They did not know. It was only fair to request it in writing. He asked that the other political parties should also provide their positions on the issue.

Closing Remarks

The Chairperson stated that he agreed with them all and the request. The new formulation that Mr Xaba presented, the EFF wanted it to be clarified in writing. He requested that Mr Xaba should do that. The bilaterals would take place and the topics, he had previously indicated, should be discussed there. With respect to the clauses they had dealt with, there were various issues that were highlighted that needed to be clarified in the bilaterals. They would park those issues. When they came back next time, they would proceed clause by clause. When all the issues that went to the bilaterals were dealt with. They would come back and go through it from clause (1). They should conclude the process timeously. He requested that the bilaterals take place before the following Friday and that they should not confine themselves to the clauses they had already dealt with. They could also venture to exchange ideas on the other clauses, so that when they came back the following week, they were able to make substantive progress.

The meeting was adjourned.