Draft Constitution Eighteenth Amendment Bill: public hearings day 2

Meeting report

Opening remarks

The Chairperson welcomed Members and expressed his gratitude to the Committee for giving an opportunity to all who had something to say and had indicated so. The Committee was not dealing with a party political project; it was dealing with a South Africa project as the outcome would affect SA as a whole. He appreciated the full participation of political parties in Parliament.

The Chairperson noted the diversity of the country and remarked that people would hold different views in such a diverse country and that meant that Members should tolerate all views and not insult one another because the Forum did not belong to them but to the people of SA. He thanked Members for their continued disciplined tolerance for the project.

The Catholic Bishops Conference was especially welcome because the missionaries were the first to arrive in the country, even before colonisers, so they knew the land story and its dispossession quite well and they had the best records, from even before colonisation.

The Chairperson was also pleased to welcome the House of Traditional leaders to the hearing. COSATU had spoken the previous day of dispossession of land and so he was happy that the National House of Traditional Leaders would present that day as they would have the opportunity to speak for themselves on the matter of dispossession.

He reminded Members that the presentation was about listening to people and asking questions of clarity. Discussion would come later within the Committee. He also informed Members that the hearings were being broadcast and so Members should conduct themselves with decorum.

Submission by Southern African Catholic Bishops’ Conference (SACBC)

Adv Mike Pothier introduced himself as a lawyer who had worked for SACBC for many years. The matter was far too complex and nuanced for a religious body to state categorically that it was for or against expropriation without compensation, but it had considered how the legislation would have an impact on those people who had suffered loss.

The SACBC strongly supported the clause that stated that a court would make decisions.  He noted that there was a great deal of anxiety and that the intervention had powerful repercussions. SACBC did not support a government department making those decisions. Unless there was an agreement that there was no compensation, the matter had to be decided by a court.

The SACBC could not support Clause 1(a) which referred to “land and any improvements thereon” and provided that both may be expropriated without compensation. That appeared to be a departure from the position up to that point, which had been that it was land, not land plus improvements, which might be subject to expropriation without compensation. Taking improvements without compensation did not have the same moral force as taking land without improvements without compensation. There needed to be a separation between land and improvements. There was no legal difficulty in making that differentiation. In general, improvements were almost always paid for by the landowners.

Adv Pothier raised the matter of the Expropriation Bill, currently before Parliament and which would be the legal vehicle under which expropriation could take place. In that Bill, taking land without compensation was not presented in the same way as in the Section 25 amendment. The Bill did not specifically refer to land reform being the reason for expropriation without compensation. There seemed to be a lack of alignment between the two pieces of legislation.

The SACBC suggested that expropriation without compensation should be considered on a case by case basis.

Discussion

The Chairperson opened the floor for questions of clarity, not debate. He had personally expected that the Bishops’ Conference would deal with land owned by the Church because, when land was taken away from the indigenous population, much of it was given to the various churches in SA. Churches had played an important role in the communities. He asked if the SACBC had any ideas as to how that matter could be addressed without forcing the government to expropriate church land.

Adv Pothier agreed land had been given by authorities to the Church; sometimes those were indigenous authorities and sometimes colonial authorities. The Catholic Church no longer had large tracts of land, farms and institutions in the countryside, although some dioceses owned land. He did not have exact numbers but, in many cases, the land had been alienated, especially in the last 30 to 40 years. For example, around Springbok the Catholic Church had handed over large farms to the local community after negotiations. It had been a voluntary hand-over.

The Catholic Church was open to talking about the land to the government should specific tracts of land held by the Church be earmarked for expropriation, but would obviously need to do research into how the land had come to the Church and what it was used for. He informed the Committee that churches held very little land in the country and especially the original condition. The churches were not significant landowners in the country and he believed only a small percentage could be earmarked for expropriation.

Dr M Ndlozi (EFF) was interested in clarifying the submission that the Conference “did not support or oppose the Amendment.” What caused that ambiguity, seeing that there was an acknowledgement that the expropriation had not come about as a result of an uncontrollable desire for power or taking people’s land; it came out of an acknowledged crime against humanity in which missionaries were implicit in and involved in macabre murder and dispossession. How could the Church remain indifferent to an injustice out of which a crime against humanity was spawned? He found it hard that the Church would come with an ambiguous position. The Church should have atoned, should be unambiguous and not stand on the fence. The Church should support the Amendment and hand over the land to avoid instability and a struggle for the land. He found it bizarre.

Mr S Gumede (ANC) noted the support for the role of the courts but what would be Mike (Pothier)’s take on endless appeals by people who were not in favour of the expropriation process and would flood the courts to challenge a decision that would have been taken politically.

The Chairperson asked Adv Pothier to respond to Dr Ndlozi’s question of the Church’s involvement in crimes against humanity.

Adv Pothier replied that the Church did not hold an ambiguous position where it did not mind one way or another. What it was trying to was to avoid a simplistic position. The Church wished to avoid sloganeering. There would be cases where the expropriation was obvious to everyone that it was the right thing and there would be other circumstances where it would not be so obviously clear that it was the right thing.

He added that if, by simply expropriating land without compensation there would be land reform, there would be little debate. Taking land without compensation did not guarantee that that there would be land reform and a resolution to the great injustice done to the people. Unfortunately, history since 1994 had shown that there had been little done in the way of land reform and that was not because of the “willing buyer, willing seller” principle or that land could not be taken without compensation. There had been plenty of money paid out for land and there was plenty to pay for land.  It was the lack of proper planning beforehand and the lack of support afterwards. The Church was definitely not ambiguous but it was not going to come down on one side or the other simply as a matter of ideology and to put out a slogan. In the Church’s experience land reform had not happened despite the amount of land and money available.

Adv Pothier said that declaring that missionaries had murdered people was overstating the matter but the Church did take responsibility for involvement in colonialisation and had appeared before the Truth and Reconciliation Commission and had admitted its involvement in colonialisation and had begged forgiveness and it had returned land where possible. The Church had tried to find ways of redressing the situation and had given land to the people where it could, but it was not giving a simplistic response to a complex, and somewhat contested, topic.

He agreed with Mr Gumede that the courts were slow and overloaded, but if there were to be administrative decision-making, everyone who was unhappy with the decision would simply go to court to take the decision on review. That added another layer to the resolution of the process. To go directly to court for a decision was an attempt to shortcut the process.

He had responded to the Chairperson’s comments, but he assured him that the Church had acknowledged its role in the crimes against humanity in colonialism and during apartheid. There had been opposition by the Church during the years of apartheid but it acknowledged its wrongdoing.

Dr Ndlozi wished to address the Church on what he found it strange, which was that the presenter said that the process of expropriation was sloganeering. He wondered if it did not come close to a patronising attitude towards the entire process. During colonialization the Church did not hesitate to take the side of the conquerors. What did they have to do to show that land was taken. That was what colonial dispossession meant. African people were dispossessed of their land and the dignity to call SA their home. The Church had not returned the land and had resolved the historical injustice to African people. That was what Parliament was busy with. It was not a slogan.

How could the Church say 25 years after the TRC that it was not taking sides? Why was the Church saying that they were sloganeering? Why was the Church not taking sides when Parliament was trying to address historical wrongs and crimes against humanity? Parliament had not yet arrived at a Bill with the mechanics of doing it; Parliament was just establishing a principle. Everyone had to be prepared to let go of their land without compensation. He found it strange that the Church in the name of God could not take sides.

The Chairperson told Adv Pothier not to enter into debate as that had just been a request for clarification on the Church’s position.

Adv Pothier stated that the Church did take sides and he had made that clear in the beginning of his presentation.  The Church approached the question from a prospective of justice, historical redress and the common good for the country as a whole in the current time. In principle, and that did not necessarily apply to land expropriation, it was always possible that in an attempt to do good in relation to historical circumstances, one could do more harm than good in such a process. He was not saying that it would such in that case. He would not say that land should be expropriated wholesale, but he was not saying that expropriation was wrong. There lay the sloganeering by those who were in favour and those against. The Church position was more nuanced so that progress could be made in the country.

The Chairperson thanked Adv Pothier and the SACBC.

Presentation by AfriForum

Mr Ernst Roets, Head of Policy and Action for AfriForum, began by quoting Fanon on colonialism. 31 years had passed since apartheid and laws had been rescinded. Hopes and dreams had not materialised. Could one really say that SA was really free when more than 34% of the workforce was unemployed? People were free to vote but were they really free?

It was good to have discussions but the problem was that the Amendment and the Bill would not promote freedom, justice, equality and curtail employment. The country needed more empirical pragmatism and he quoted various statistics on conditions in the country, noting that the Art of Economics consisted of not looking only at the immediate, but also at the long term impact.

Mr Roets raised 11 issues in his presentation, beginning with whether there was a need for a Constitutional Amendment at all and the scope of the Parliament’s Review Committee enquiry and recommendation. He addressed the Amendment itself and why it exceeded the recommendations of the Review Committee. He said that it transgressed SA’s international law obligations and referred to the likely impact on the African Growth and Opportunity Act (AGOA). He dealt with sections 2 and 36 being unconstitutional and why the Preamble to the Amendment was misleading. Finally, he warned that the legislation could be used against the poor and vulnerable in the future.

He stated that similar policies elsewhere in the world had been a failure and the transformation of half-baked socialism into full socialism would lead from partial failure in the country to full failure.

Discussion

The Chairperson noted that the Freedom Charter said that the people of SA as a whole were entitled to the right to determine their own destiny, and that, in the Harare Declaration, the South African people, with the backing of the African Union, had developed a process for addressing their own issue without foreign intervention. Did he believe in the capacity of South Africans, both black and white, to find solutions for their own problems? If so, could he explain why he had rushed to the United Nations to raise concerns about processes in the country before South Africans themselves had sat, as they were then sitting, to deal with those issues?

Dr Ndlozi was fascinated by AfriForum’s reliance on Franz Fanon and Hannah Arendt. Where had Fanon spoken about the superiority complex of the colonised? He was quoting Mr Roets’s statement and he wanted to know from which work by Fanon the quote had been taken.  Was he aware that Fanon had said in “The Wretched of the Earth” that, if possible, the colonised should fight violently for the return of the land? The return of the colonised land was not negotiable and had to be returned to the native. Did he believe in Fanon or was he being patronising in his reference to Fanon? Fanon was uncompromising that the land belonged to African people. Was he aware that land belonged to the African people? And what was his response?

In the “Origins of Totalitarianism”, Hannah Arendt had said that the absolute dependence on the work of others and the complete contempt for manual labour was what had transformed the Dutchmen into Boers and had given their concept of race a distinct economic meaning. The entire Boer economic policy was dependent on contempt for labour and productivity in any form. Hannah Arendt’s entire take on the historic development of the Boer lay in that statement in “The Origins of Totalitarianism” that said the Boers were dependent on the natives for labour. Arendt would tell him and everyone else, unequivocally, that the land had to be returned, not bought. It was taken through an authoritarian system which she had characterised as a crime against humanity.

Mr P Moroatshehla (ANC) said the presenter had educated the Committee on unemployment but did Mr Roets agreed that the land was illegally taken from the indigenous African peoples? If he agreed, but he had to agree as there was no other option, how was the government supposed to address the problem where the land was illegally taken? Had he any proposals as to how the land could be given back to the people? He had heard all that Mr Roets had said about other things, such as corruption, but what could he say about giving back to Caesar what was Caesar’s?

Mr S Gumede (ANC) said that he was really disappointed as it looked as if Mr Roets was turning history around. So he would put forward his view.

Dr C Mulder (FF+) called for a point of order stating that Members were aware that they were meant to ask questions for clarity, and not debate the presenter’s views. Mr Gumede was out of order. Members were not interested in Mr Gumede’s theories.

Dr Ndlozi stated that he was very interested in Mr Gumede’s view of history.

An argument took place and Dr Ndlozi said those who did not want to listen had to shut up.

The Chairperson told Dr Mulder that people had different ways of approaching things and Mr Gumede was entitled to his way of doing things as long as he was aware that the Committee was asking questions and not debating. His approach was perfectly in order.

Mr Gumede said that Mr Roets had put his point of view in the presentation, so he was entitled to put his point of view. It was his preamble. Mr Roets was wrong that there was no hunger for land. He was suggesting that people’s desire for land was just a myth. He had said that a survey had shown that only 1% of people believed that acquisition of land would improve their lives. The questions put to people in the survey were distorted questions. It was wrong to believe that only people in urban areas wanted land. People all over the country wanted land. Did Mr Roets believe that land was taken away from black people? He came with figures that distorted the reality of the matter. How had the researchers asked such questions to get those answers? The government was trying to avoid people fighting violently for land, otherwise people were prepared to do it.

The Chairperson asked Mr Roets to address the questions on illegal dispossession of the land. That dispossession had been violent and Parliament was trying to avoid a violent resolution to the problem.

Mr Roets responded to the question about confidence in South Africans to resolve issues. He said that AfriForum had confidence in people in SA but did not have confidence in the people who represented the people of SA in Parliament. A study had been done - it might have been the Institute for Justice and Reconciliation that had polled politicians - about what their priorities were and it turned out that education, for example, was number 16 in those lists, on average. If one interviewed people in SA and asked them what the biggest problems were that needed to be resolved and one then flipped that list upside down, one would find the priorities of most of the people who were in Parliament. So, AfriForum did not have confidence in the people in Parliament.

Mr Roets stated that Dr Ndlozi had misheard him. He had not quoted Franz Fanon as saying the colonised had a superiority complex. He had pointed out that Fanon was right about the consequences of the superiority complex that went with the liberal enlightenment thinking, i.e. the superiority complex of those doing the colonising. It was a reality and AfriForum had to concede that that was wrong.

He stated Dr Ndlozi’s interpretation of Hannah Arendt was wrong as she was against totalitarianism and she certainly was not in favour of replacing one totalitarian system with another. Dr Ndlozi had spoken about Afrikaners being dependent on “natives” (and that was a word that Dr Ndlozi had used) and he agreed that it was one of the mistakes of the Afrikaner in history - to become dependent on black “native” labour. However, what was happening in Parliament was that its policies were increasing the dependence of people on the government. If the intention was to combat dependency, then those policies should be abandoned. He knew that the EFF and many politicians believed that government /the state should own the land. The policy was not about returning the land to the people; it was about the state acquiring the land. AfriForum knew that from what many people had said about the policy and it knew that from empirical evidence. Only 6% of government-acquired land had been transferred back into private ownership. If the point had been to give the land to the people to increase private property ownership, that would be something that AfriForum could support. AfriForum could not support a policy in which the intention was for the state to own the land.

Mr Roets stated that Mr Moroatshehla and Mr Gumede’s questions were exactly the same and the answer was both ‘yes’ and ‘no’. One had to become very careful about taking a one-dimensional view of history. Policy could not be built on a two-sentence view of history. There were atrocious incidents in which land was taken from people in ways that could not be justified in any sustainable way. There were some terrible instances where land was taken, but there were some cases where people bought land. People who had owned the land had sold that land and one could not accuse someone who had legitimately bought the land of being an illegitimate owner of that land. That was part of the problem with the process. There was an intermingling of the idea that people who had been dispossessed had to be given back the land with the idea that if one was white and owned land one was an illegitimate owner of that land. The fact that those ideas were frequently intermingled was precisely why it was such a destructive policy. That meant that it was not about correcting historical injustices but about giving the state more power by pushing an underlying racial agenda.

The Chairperson appreciated the fact that AfriForum members had participated in the public hearings because the Committee wanted to all opinions. He thanked Mr Roets for coming.

Ms K Mahlatsi (ANC) asked to follow up on some of Mr Roets’ answers. He had indicated that the people of SA were not well represented in Parliament. Therefore, this process, in his insinuation, was not a proper process, so why was he engaging in such a process? Clearly, he did not believe in what the Committee sought to achieve.

Ms Mahlatsi stated that her second question was not based on his own presentation or his response but on numerous public hearings across the country, there had been minimal participation by AfriForum. Why were members of AfriForum not on the ground in all nine provinces where a meaningful process had taken place?

Were they fearful of what the black people would say on the ground or did he think oral and written submissions were sufficient?

The Chairperson noted that there was a diversity of opinions but her question was valid. Mr Roets had to say why was he engaging in a process that he believed was invalid.

Mr F Shivambu (EFF) said that he had made the observations several times. The process was transparent and democratic so why did the Committee allow racists to come and speak in Parliament and say that the process was not legitimate? (inaudible)

Dr Mulder rose on a point of order, saying that he thought he had heard Mr Shivambu calling the presenter a racist. If so, the remark was unparliamentary and Mr Shivambu should apologise and withdraw his terrible remark.

Mr Shivambu stated that it was a general remark and the Committee had been allowing kids and racists to come and make remarks. It was nonsense and absolute rubbish. Was he saying that Parliament was not legitimate because it was not a white-owned Parliament? Black people had to be banished to small pieces of land. If he was saying that a black majority Parliament was not representative, what other mechanism did he want? What kind of nonsense was that and then the Committee still had to hear it? But he would listen to the white boy.

The Chairperson informed Dr Mulder that it was not wrong to make an inference that certain conduct was influenced by racism which that was why he could not rule Mr Shivambu out of order. He had not said anyone was a racist.

The meeting degenerated into an altercation with several Members of Parliament shouting at Mr Roets.

Dr Ndlozi said that the Committee should not miss the opportunity to put its foot down. Empirical surveys could not compete with the factual accuracy of voting. Parliament had to invoke its authority because they did have it. Whoever did not believe in Parliament should not talk to them! They were not scared of him! Parliament was not scared of him because he could not do anything! Who went around talking to illegitimate people? It was wrong! He stated unequivocally that it was racial patronisation that informed AfriForum. The Chairperson asked him why AfriForum had gone to the UN when there were legitimate structures in SA. He answered that he did not believe in the legitimacy of Parliament Who were they to say that! Why talk to us? AfriForum was wrong! AfriForum as an organisation was racist! Roets was racist!

The Chairperson said that Members should not waste time on unfounded statements or opinions that Parliament was not legitimate. It had been elected by the majority of SAs, both black and white. That statement had to be dismissed with the contempt that it deserved. He instructed Mr Roets to address the Committee.

Mr Roets noted the disagreement in the EFF about racism: Floyd Shivambu disagreed that AfriForum and he were racist but Dr Ndlozi said it was racist.

Mr Shivambu interjected saying that Mr Roets should not put words in his mouth. He was a racist fool!

The Chairperson informed Mr Roets that he should not interpret the words of Members but answer the questions.

Mr Roets stated that he was not sure why Ms Mahlatsi said that AfriForum had not participated in the meetings as the organisation had participated in virtually …

Ms R Lesoma (ANC) interjected. She informed the Chairperson that Mr Xaba’s hand was up.

The Chairperson told him to put his question before the presenter continued.

Mr C Xaba (ANC) found it disappointing that Mr Roets would come to Parliament and say that he did not recognise Parliament and yet expected Parliament to take him seriously and to apply its mind to his presentation. Why should a body as big as AfriForum be taken seriously when Mr Roets said that the organisation did not recognise them?

Mr Roets clarified that he had not said that AfriForum did not recognise Parliament and that Parliament was illegitimate. He had said that AfriForum had no confidence in the politicians who, generally, were out of touch with the people and they did not represent people properly. If one asked many people in Parliament, although surely it was not all of them, one would see that their priorities were completely different from those of people on the ground. To say that he had said AfriForum did not recognise Parliament was a strawman.

He informed Ms Mahlatsi that AfriForum members had spoken at virtually all the meetings. He himself had spoken at two of them. They had participated in virtually all meetings.

Ms Mahlatsi interjected saying that Mr Roets was incorrect as there had been no virtual hearings.

The Chairperson asked that the speaker be allowed to speak.

Mr Roets stated that AfriForum did believe that it should participate in the process. The issue was that AfriForum believed that the push for land reform and expropriation without compensation (EWC) did not take cognisance of the realities on ground level. If there was a problem with the statistics that he had quoted, they could be reviewed. It was not an argument to say that one’s statistics were wrong without saying why they were wrong. If they were wrong, there had to be proof that they were and not because one disagreed with them.

He said that anyone could say that people in SA loved their politicians and the people in Parliament but that did not distract from the humour and irony in that a corruption connoisseur is trying to lecture him on how to run a country.

Mr Shivambu interjected

Dr Ndlozi shouted out that the Committee was not going to listen to the racist boy.

The Chairperson instructed Mr Roets to withdraw the statement and complete answering the questions.

Mr Roets asked the Chairperson if it was fair that Members could make atrocious remarks about him, AfriForum and its members but he could not respond.

The Chairperson said that the questions put to him were very clear. He should focus on answering the questions and not speak of other things.

Mr N Masipa (DA) interjected and asked permission to speak. He explained that he spoke on behalf of all the presenters, including those to come. He understood that Members should engage with presenters and get clarity on the presentations that they were making but he was concerned that the Chair was allowing Members to express their views of people and organisations. The Chairperson had to take control of the situation otherwise he was making the public hearing a challenge for the Members. The Members were there to listen, take notes and ask questions for clarity. When the Members went into Committee, they would deliberate and determine what was fact and what was not fact. They would then debate on the Bill itself. He asked the Chairperson to allow presenters to present and Parliamentarians to ask questions of clarity and not to instil their views on presenters or argue with the presenters.

The Chairperson responded that he had said precisely that from the beginning. The questions were clear and straight forward and Mr Roets sould answer those questions and should not debate the opinions of the Members.

Mr Roets stated that he had responded to all the questions.

Mr Moroatshehla reminded the Chairperson that Mr Roets had been instructed to withdraw, but that it was okay. He had a follow-up question.

The Chairperson stated that 15 minutes had been allocated for questions. To take longer would disadvantage other presenters. The Committee had got what it wanted from that man and the Committee should allow him to go.

A voice shouted out that they didn’t want to hear the … racist.

The Chairperson informed Ms Mahlatshi that Parliament had good staff and they had kept records of the participation in public hearings, so the Committee did not have to rely on what that man was going to say about attendance.

Dr M Gondwe (DA) said that someone on the platform named Tambo had used a profanity and had called someone racist. She was not entirely sure who he was referring to.

The unnamed person said that it was Roets who was racist.

Mr Moroatshehla objected to the Chairperson giving audience to Dr Gondwe when he had not been allowed to speak.

The Chairperson said that Dr Gondwe had not previously spoken but what she was raising was, in any case, irrelevant. She did not even know who to whom the remark was directed so he could not entertain the point.

Dr Gondwe said that the person had to withdraw his remark.

The Secretary asked the Chairperson to inform members of the public not to participate in the meeting.

The Chairperson stated that it was well-known that Members of the public could observe but not participate

Mr Shivambu informed the meeting that it had been Mr S Tambo (EFF) who was a Member of Parliament.

The Chairperson thanked him for the information and asked the Secretary to proceed with the next presenter.

Banking Association of SA (BASA)

Ms Bongini Kunene, Managing Director, BASA, began with the statement that the Banking Association was fully supportive of the state’s initiatives to rectify past racial injustices, to correct current land ownership patterns, to reduce inequality and alleviate poverty. It remained committed to playing a role in working with key stakeholders, including the State in finding all-inclusive solutions to that and other economic challenges to create a better life for all South Africans.

South Africa, as a member of the G20, was obliged to implement the Basel regulatory frameworks. A marked decrease in the value of land-based property, caused by either an amendment to legislation and/or market uncertainty, and the resultant reduced appetite from property buyers could destabilise the banking sector, and have a negative impact on the credit rating of the sector and the country. The current exposure banks had in relation to land-based property was approximately R1.613 trillion in the form of mortgages. That quantum excluded other types of non-mortgage loans afforded to borrowers premised on their net worth, where their land-based property constituted much of their net equity base and provided support to lenders for such loans in the event of default

Many banking crises around the world had, as their starting point, the decline in land-based property and the impact that that had had on market confidence. An example was the 2007-2008 global financial crisis which started from the downturn of land-based properties in the United States of America. It was therefore important that South African land reform initiatives, to the greatest extent possible, be implemented in a manner that limited any potential destabilisation of the financial markets.

Regrettably, both the proposed amendment to Section 25 and the Expropriation Bill (in particular) were vague/silent in a number of areas, and most importantly in the areas of definitions, especially defining what is meant by the arbitrary deprivation of property and a definition for land reform.

Ms Kunene recommended a new insertion into the Bill, i.e. a clause which provided that parties with registered and unregistered rights be provided with a State guarantee that they would not experience a loss

in the event that expropriation compensation levels are lower than the registered rights owner/s’ exposure to the expropriated owner, provided that did not exceed the market value of the expropriated property.

She said that the state needed to prioritise land reform/agricultural sector transformation and re-align its resources accordingly.

Discussion

The Chairperson reminded Members that they were not there to debate the reasons for the submission. He did not want the meeting to degenerate.

Dr Mulder noted that BASA supported the nil compensation. Under which circumstances would that be acceptable?

Ms Mahlatsi asked what had informed BASA’s decisions to rely on the courts to determine the compensation. Why should the courts make the decision? Why not the administration? She noted that banks were there to make money. How much profit was the banking sector making and was BASA willing to share those profits with the marginalised? How much were they prepared to give to the process?

Mr Shivambu asked how many houses had been repossessed from black people? What was the racial compensation of those whose houses that had been repossessed?

The Chairperson said the question asked about the role of courts related to what the law called ‘separation of powers’. Her suggestion would affect the power of the Constitution. She must answer that question clearly and also the questions asked by Mr Shivambu.

Ms Kunene responded to Dr Mulder’s questions. She said the circumstances would be determined by the courts. BASA adhered to the law of the country and the banks would adhere to any ruling by the courts that there had to be zero compensation. One could not conceive all permutations.

Why go to courts? Ms Kunene asserted that it was the current way in SA. There was no law in the country that could not be challenged in the courts. R1.6 trillion in mortgages included agricultural, residential and commercial property. Home owners accounted for about R1.3 trillion of those mortgages. In March, banks declared profits but for the first half of 2020/21 there had been a 48% decline in profits. She would have to see at the end of the process, what profit banks had made.

She added that every year BASA shared with the marginalised in the community and would submit those details in writing. She would also submit the answer to Mr Shivambu’s last question in writing.

Presentation by Council for the Advancement of the South African Constitution (CASAC)

Mr Lawson Naidoo, Executive Secretary, CASC, stated that CASAC had forwarded a written submission and he would merely highlight some aspects of that submission. The submission had been drafted by Advocate Tseliso Thipanyane who was a member of the CASAC Council and CEO of the SA Human Rights Commission.

Mr Naidoo stated that CASAC supported the redistribution of land. There was an assumption that the Constitution did not allow expropriation without compensation and CASAC believed that assumption was incorrect. CASAC did not believe in amending the Constitution and did not believe that the process would correct land possession in the country. That change to the Constitution would not resolve the situation. Corruption had to be addressed and any Amendment to the Constitution had to be based on the rule of law.

The Commission responsible for restoration and restitution of land rights needed a new mandate, and additional resources. There had to be a focus on corruption and looting in land reform as there were many indications that land had also become a site of corruption. Capture of the land reform programme by the elite presented a danger as great the failure to distribute land to those who needed it the most.

Mr Naidoo noted that a final feature of the Amendment was the importance of the rule of law. The centrality of courts as arbiters of disputes in society was entrenched in the Constitution. Not only was the law supreme, judicial pronouncements were final and binding on other organs of state. The amendment affirmed this. Only a court might decide whether or not nil compensation was to be paid. Recently, the Constitutional Court, had accepted that the failures in land reform had to be placed squarely at the doors of the government, not the Constitution. Mr Naidoo quoted the Court’s summary of the findings of the Motlanthe Panel.

With Mr Naidoo going two minutes over his allocated time, the Chairperson was obliged to remind speakers to keep within the time limit.

The Chairperson also requested Members to pose all the questions that they had in the first round of questioning as he was not going to permit Members to engage with the responses provided by the presenters and to debate with the submitter.

Discussion

The Chairperson asked if CASAC was aware that in June 1913, black people only had 7% of the land in SA and its natural resources. That percentage was increased to 13% in 1936. What was CASAC’s view of the suggestion, in the light of that information, that section 25(7) should be removed? Secondly, in 1951, the International Court Commission of Jurists demanded that the formulation of the rule of law in the colonial context should move away from the liberal concept of the rule of law which favoured the colonialists and not the colonised. That had led to a progressive concept of the rule of law which had led to documents like the Human Rights documents. Did that not suggest that SA needed an African-centrist rule of law when dealing with the land question? There were different interpretations of the rule of law.

Ms Mahlatsi said that CASAC had suggested there should be an internal appeal mechanism in the expropriation process. Provision was made for that. In paragraph 64 of its submission, CASAC said that the power to decide whether expropriated property or land should be paid should lie with the court and not government. What was CASAC’s understanding of the authority of the Executive Authority in relation to the executive functions of the state which were not in the realm of the courts, bearing in mind that the Constitution provided for judicial review?

Regarding the circumstances in which expropriation could happen, she noted that Mr Naidoo had indicated that one of the circumstances was where labour tenants were occupants of the land without title deeds, did he not believe that instead of that being one of the circumstances where expropriation should happen, such land should just be converted and the occupants be give title deeds.

Ms Mahlatsi stated that Minister Thokozile Didiza had said that there was a challenge in relation to state capacity. She put it to Mr Naidoo that one of the challenges in relation to state capacity was in the area of research for the restitution process. In her view, the process of EWC could assist the state to provide land and to deal with the other challenges. The intention was to redistribute land and not restitution. It was impossible to find the rightful, original legal owners of the land, making restitution a challenge. Expropriation would distribute land fairly without needing to go through the restitution process. Did he not think that EWC was the right way to go to deal with capacitation issues?

The Chairperson commented that a hundred lawyers would give a hundred different legal opinions. Other lawyers would have different opinions from Mr Naidoo’s view.

Mr Naidoo said that he had tabled the view of CASC with the intention of enhancing the process. He agreed that a system of land restitution would acknowledge the historic dispossessions of the past, including the 1913 Land Act and the other elements of dispossession that he had referred to. CASAC’s view was very clear: the need for land reform was long overdue and urgent but had to be done in a holistic, sustainable manner. The rule of law and the legal framework had to provide legal certainty and ease of knowing what one’s rights and obligations were.

He explained to Ms Mahlatsi that Section 64 in the CASAC submission said that the Executive, the government, would take the decision whether to expropriate or not. That was the matter that lay within the domain of the executive, but the decision regarding compensation did not lie with the executive. That was a matter for determination by the courts. That was where CASAC saw the separation of powers and where the decision on compensation should take place. He did not disagree about the question of labour tenants - it was a question of mechanics and he did not see how the land could be transferred without it first being expropriated.

Mr Lawson differed with Ms Mahlatsi’s comment on state capacity and research. The reason that he had highlighted the Minister’s comments the previous day was really to point out that there was a serious skills deficit within government, and especially in the Department of Agriculture, Land Reform and Rural Development, where there was a lack of state capacity to implement the current land reform processes. Adding another layer to that list would only create further confusion and ineffective implementation. The bottle necks, budgetary constraints and problems had to be identified. The Courts had continually stated that the state was underspending on land reform so, if budget was not an issue, there had to be an evaluation of why land reform was not happening.

He emphasised that CASAC was not against expropriation of land but it could be done without an amendment to the Constitution and could be done in the current context of the Constitution.

Presentation by Black First Land (BLF)

Mr Andile Mngxitama, President, BLF, stated that BLF had made a written submission and he would merely highlight some aspects of that submission, including some new developments. He stated that he recognised all the Members of the Committee but that, ideologically, he could not address them as “Honourable” because he did not know that the leaders of landless people, 26 years after democracy, could claim the title of being “Honourable”.  The people remained landless in their own country.

The Chairperson informed Mr Mngxitama that he did not want controversy. Parliament had rules which had been adopted democratically and all Members of that Committee were Honourable Members of Parliament and should be addressed as “Honourable”.

Dr Ndlozi interjected. He asked that Mr Mngxitama should be allowed to critique the question of not using the title of “Honourable” and remaining landless. He was not saying that he was oppressed and was going to break the rules but, Dr Ndlozi said, laughingly, it was a good assessment of the situation.

The Chairperson reminded Mr Mngxitama that the BLF had been invited to address its written submission. Whether he was right or not was not a matter to be considered at that time.

Presentation by BLF cont.

Mr Mngxitama was pleased that Dr Ndlozi agreed with him and hoped that he would also agree on the substantive questions.

He noted that the Department of Public Works had already started the process of changing the legislation and there would be nil compensation only where white people did not want land or where they donated land. Parliament had entered into a conspiracy and it had nothing to do with returning the land.

Having given examples of unacceptable situations and of people whose views were unacceptable, Mr Mngxitama stated that in 2017 BLF had submitted the Anti-Racism Bill of 2017 to Parliament and BLF had proposed certain provisions from that Bill should be incorporated in the amendment of section 25 of the SA Constitution and the new Land Clause, so as to realize land return without compensation to the black majority:

Repeal of Section 25 of the Constitution and the new land clause

Section 25 of the Constitution shall be repealed in its entirety and the following shall be used instead:

a. All the land held by whites in South Africa is stolen property.

b. The primary purpose of the redistribution of land to the black majority is for historical redress.

c. All black people have a right to land in South Africa without any payment.

d. The eviction of farm workers and poor people from land is illegal (in this regard there must be an end to the strange distinction between legal and illegal evictions)

e. A new department, which shall be called the Department of Land Redistribution, must be established.

f. A process must be outlined where land ceilings shall be effected in accordance with the soil capacity of each of the regions and provinces.

h. The value of mortgage bonds must be adjusted to a value that excludes land in determining housing price because land must be offered to all for free.

i. Land occupation by the landless is lawful.

j. That constitutionally determined targets be set and the responsible Minister be held accountable. To this end we propose that in the next five years 80% of the total land be redistributed to black people".

Mr Mngxitama stated that the Amendment was a betrayal of the landless people of SA. The Bill was shocking as it departed from the intention of the motion of land expropriation without compensation for which 81% of Members of Parliament voted. If the Bill was approved would the land revert to black people? The answer was “No”! Parliament was involved in fraud; Parliament had betrayed the people who desired land.

In conclusion, Mr Mngxitama stated that all land in the hands of white people was stolen property and all land had to be restored to its rightful owners. All land in the hands of white people had to be expropriated. Land held by Ingonyama Trust and other land in the hands of black people could not be expropriated. The Act had to be finalised within six months.

Discussion

Mr Masipa asked for clarity whether BLF believed in non-racialism. If so, how was the organisation going to achieve non-racialism?

He noted that some presenters had spoken about corruption having derailed the land reform. Did the BLF believe that changing the Bill was sufficient to address the challenges of land because there were really serious issues of capacity in the institution to deliver on some of the legislated framework?

Mr Shivambu said that in terms of the processes, what that Committee was engaged in was the Amendment of the Constitution. Once the Constitution had been amended, all other legislation would have to be aligned. No other legislation could override the process that the Committee was engaged in. He asked whether, instead of confiscation, Mr Mngxitama should not say repossession. Everyone agreed that the land had been stolen from black people through colonialism and apartheid and all forms of dispossession. Should they not be saying that all land that was wrongfully in the hands of white colonialists and their descendants …?(inaudible) Was it not more simplistic and correct to define it as repossession?

Mr Shivambu was more interested in what he understood about confiscation versus possession. Mr Mngxitama had been in the EFF previously and he knew that the EFF policy was to repossess all the land in SA and then to determine how a certain legitimate process would deal with redistribution. He did not know how BLF wanted to achieve it in a different context.

Ms Mahlatsi said that, in his presentation, Mr Mngxitama had indicated that expropriation should only happen to a particular race but not to black SAs. There was land owned by black SAs that might be redistributed to accommodate the landless. That land should be used for profitability issues but the fact was that the majority of black South Africans were landless. Should Parliament not look holistically at the issue of expropriation to support restitution?

Mr Mngxitama was unhappy that the question was posed around BLF’s reading of the Bill, i.e. that it did not address the main question. The question of whether there would be land redress once the Bill had been passed had not been answered.

Mr Shivambu interjected, saying that was how deliberations happened. The text on the draft Bill was not final. The public hearings were part of the process of consolidating the final wording so nothing was final at that point and the presenter could not ask MPs questions as the Bill was not finalised. He should just make his submissions as to what he thought should be in the final version. There was no final product showing what the Constitution should look like.

The Chairperson thanked Mr Shivambu for the appropriate intervention and asked Mr Mngxitama to deal with the questions put by Members.

Mr Mngxitama said his was a black conscious movement; there was no non-racialism in such a movement. He informed the “DA Member” that non-racialism was not something that one fought for; it was an outcome of a process of justice. The problem that the DA had was that it had not addressed the colonial problems and yet it declared itself non-racial. Black people were excluded in the DA and white people without appropriate education were running around as leaders. One could not have 30 000 white people in a country of 59 million owning 80% of the land stolen from black people! That was the mother of all corruption! If they were serious about corruption, they would align with the call for the land to be given back to its rightful owners.

He said that Mr Shivambu raised some interesting points of semantics around “confiscation” or dispossession. He had thought that as radicals, they should look at land distribution in 1917. The Russian Revolution was a great example of what was done with land: the Russian decree was that one “confiscated”. You take it and it made no difference whether white people claimed that they had rightful ownership of the land or not! He was only interested in the mechanism that took the land from white people and gave it to black people! They could call it repossession but Mr Shivambu should show him where in that particular Bill it was expected to appropriate land, where were the procedures for that repossession? It did not exist! What the Committee had said about nil compensation was for certain parts of the land, which were so small that it did not address the land question!

The Chairperson attempted to get the attention of Mr Mngxitama but was ignored.

Mr Mngxitama dropped his voice slightly and continued, declaring that the land belonged to the people, not to the state. The state should see that black people had land. Regarding the Ingonyama Trust, he had not heard Mr Shivambu say that it was wrong for black people to own land. He spoke of tenure arrangements but that was a secondary question. He raised his voice again saying that he and Mr Shivambu and Dr Ndlozi were landless and tenants in their own country! The primary problem of land dispossession had not been resolved! Land held by white people! That question had to be resolved first!

The Chairperson called for Mr Andile (Mngxitama)’s attention. He explained that Mr Shivambu had correctly said that the process was not yet completed. The Committee had not taken a final decision. The Committee was there to take a final decision. He would allow only allow Dr Ndlozi to speak as he had deferred earlier.

Dr Ndlozi asked Comrade Andile (Mngxitama) about his constant reference to Blacks. What did he mean by Blacks as that would be an issue of huge contention? If he could say what he meant, that might disabuse views of racism.

The Chairperson noted that it was a very fair question.

Mr Mngxitama said that BLF was a black conscious organisation and it had taken the definition from Steve Biko and in terms of that definition, it was Africans, so-called Coloureds and so-called Indians of SA descent. There was an important qualification in respect of Indians: it was only Indians of SA decent. But, as Dr Ndlozi would know, to be black, it was not enough to simply have pigmentation! One had to take a position which was called black! Mr (Minister) Gordhan would be considered non-white. All those Indians who had not aligned with the black majority would not be considered black! When it said black, the BLF was referring to all the people who had been oppressed: Africans, Indians and Coloured, were all those that had been disposed and who qualified it by taking a position for blackness!

The Chairperson thanked him on non-racism. He had explained that black meant Coloured, Indians and African. That was enough.

Mr Mngxitama shouted at the Chairperson that that was not enough! One had to take a position for blackness! It was not enough to be pigmented black, including Mr (Minister) Pravin Gordhan and others. 

 

The Chairperson stated that he had answered the question.

Mr Mngxitama responded that the Chairperson had to make sure that he changed the Constitution: what was in the Bill was not enough!

Freedom of Religion for SA (FORSA)

Ms Danielle Ellerbeck, Legal Advisor, FORSA, noted that the Constitution protected the fundamental right to religious freedom, which included the right to practise one’s faith in a community. It was a right that could not be denied.

FORSA proposed that the sections of the Bill be more narrowly drafted, i.e. that a closed list of criteria for EWC be included in the Constitution itself; alternatively, that a clause containing land which was exempt from EWC be inserted. FORSA proposed the following: “Land that is owned and used in connection with the exercise of the constitutional right to religious freedom and the rights of religious communities, is hereby exempted from the applicability of section 25(2).”

Discussion

The Chairperson asked whether she could confirm or deny that certain religious organisations had been given land for collaborating with colonists.

Ms Ellerbeck stated that she would need to do research on that and get back to him on that as she was not in a position to respond to him factually at that point.

Dr Ndlozi interjected, stating that the NGK (Nederduitse Gereformeerde Kerk) had been given land for having collaborated with colonialism.

The Chairperson stated that Ms Ellerbeck had requested an opportunity to research the matter and the Committee should allow her to undertake that research.

Dr Ndlozi stated that he was doing the homework for her. The NG Kerk was an example of a church being involved in corruption and dispossessing their land.

Mr Moroatshehla noted very little had been said about section 25 to which the Committee was confined. Her background was in sections 15 and 31. She ended up saying that FORSAR oobjected to section 25. He asked her (Ms Ellerbeck) to make a statement as to whether she believed that land had been dispossessed from the black people. The Chairperson had already cited that the churches had taken land from the black people but he wanted her to come to the party and tell the Members whether the land was illegally taken from the indigenous black people of SA.

Dr Ndlozi thought that there would be a complex look at the centrality of the land in African spirituality. A lot of the disruption that came with land dispossession caused a disruption in the ways in which black people practised their spirituality. The speaker should speak to that question. The relationship between African spiritual practices and the fact that Africans had no land because it had been taken away from them because of the colour of their skin. For 500 years that relationship had been violated.

Ms Ellerbeck stated FORSA included African spiritual churches. Over 18 million people had been represented by FORSA during the pandemic. She apologised for not knowing about the Dutch Reformed Church; she was not a member of the Dutch Reformed Church. She agreed that people had the right to use land for spirituality purposes and that they had to be given access to such land. Most of the organisations she represented rented land and hence had had no place, such as school halls, to meet in during Covid. She explained that she had not said that land should not be expropriated but had simply said that when land was being used for spiritual purposes, Parliament should not further limit the ability of people to worship by taking their land. Perhaps the Committee could include an exemption in the Amendment that land used for spiritual purposes, for example, a field used by people for worship, should not be expropriated.

National House of Traditional Leaders (NHTL)

Nkosi Sipho Mahlangu, Chairperson, NHTL, acknowledged the legacy of exclusion of the land. He was glad that Parliament had finally seen the need to amend the Constitution. He was adamant that the traditional leaders were the legitimate owners of the land, not Communal Property Associations, etc. The NHTL was insistent that the Bill had to clearly state that communal land, that was land owned by the community under traditional leadership, was exempted from expropriation.

The NHTL said that had to be no set cut-off date for land that had been dispossessed and that the state had been tardy and ineffective to date in implementing land reform.

The National House of Traditional Leaders (NHTL) called for clarification of the definitions in the Expropriation Bill, because in terms of the Bill, property was not limited to land and included a right to other property. That definition could include mining rights, movable property and unregistered customary and other land use rights.

Mr Mahlangu accused Parliament of pussy-footing on the land question, saying that the land had to be returned to its rightful owners or they would have no choice but to stand up and fight.

Discussion

The Chairperson said that there was a school of thought that people in communal lands should be given titles to the land. What was Mr Mahlangu’s take on that?

Mr Shivambu accepted that the submission by the House of Traditional Leaders supported the Bill, particularly clause 7. In December 2020, the Department of Agriculture, Land Reform and Rural Development (DALRRD) had advertises a list of agricultural land. The state was in the process of auctioning that land to those who wanted to perform agricultural functions. That land was currently under the custodianship of chiefs, so how did the NHTL align with that proposal?

Mr Shivambu appreciated the point that the Zulu royal family was the custodian of the 2.8 million hectares of land in the Ingonyama Trust but the obvious limitation in the real redistribution of that land, as indicated in the hearings, was that the majority of Zulu chiefs were refusing to allocate that land to females. They said that in terms of African traditional culture, females were not allowed to inherit the land. They could not even inherit the land when their husbands passed away. The custodianship of land by traditional leaders had always had disparities of gender discrimination. There was no consistency in how traditional leaders allocated land. Some traditional leaders allocated the same piece of land to different groups for different amounts. What would be the best model of land administration that would be more democratic and much more equitable?

Mr Moroatshehla had expected the NHTL to respond on the point that land that had already been given to black people should not be tampered with. Could the NHTL clarify its position on that point? That took them back to the land given to churches. Should there not be an inquiry to establish if that land had been given honestly and fairly? Had weak black people not been dispossessed and their land given to other black people? Sometimes there had been incorrect distribution. They were fighting dispossession but he wondered where there had been dispossession of blacks by other blacks. For example, women seemed to discriminated against? Should blacks keep land even if there had been unfair practices?

The Chairperson said that would also raise the question of whether land given to black people who had acquired land through unfair and foul means. That was a good observation.

He would allow further questions after Mr Mahlangu had responded.

Nkosi Mahlangu responded to the views that the traditional leaders were not giving land to women. He knew that when there were public hearings that people who represented the new liberal view came up with that view, even making references to things from 1960 when apartheid was in its prime and women were treated like children. The sector had really transformed. Traditional Leaders had not been giving land to people who were not married but they had realised that it was not the decision of women as to whether they got married. Women had children and wanted their own space. The NHTL had women participating in all structures in the House. They were transforming very fast and had had a number of discussions on transforming the sector and making sure that women were empowered. He wanted examples of such cases where women had been discriminated against and such a traditional leader would be dealt with as it was against policy.

He responded to the issue of land taken from one sector and given to another and the advertisement by the Minister. The NHTL had already told the Minister that it did not agree and discussions had been held. Traditional leaders did not own 13% any longer. DALRRD had been giving permission to private developers and to people to develop shopping centres and had been giving them title deeds. Even once traditional leaders had given people land to occupy, it still belonged to the traditional leaders but some people had gone behind the community’s back to “monopoly capital”. Those shopping centre developers had acquired the land through collusion with the Department and it had to be given back to traditional leaders and communities.

Nkosi Mahlangu stated that the position of the NHTL remained that communal land should not be titled because untitled land gave traditional leaders the opportunity to allocate land for poor people. The House would deal with anyone who was not following customary law. He was pleased that the Traditional and Khoi-San Leadership Act had been passed. Some people who were not traditional leaders were allocating sites on the very same piece of land where the traditional leaders were allocating sites and that had to be stopped.

He said that communities could decide on a tenure system in conjunction with the traditional leader. The tenure system had to be strengthened to give people security of tenure. A lot of people were afraid that traditional leaders would arbitrarily remove them from land that they had been given. However, the NHTL opposed the issue of title deeds. Although that was considered the panache of all the problems in the country, it was not the only answer. He would rather have people being trained on the meaning of land and teach them to value the land and not to leave land lying fallow. The system had destroyed people’s understanding of the value of land and the traditional leaders were attempting to re-instil those values.

Land and Accountability Research Centre (LARC)

Ms Zenande Booi, Land Lead Researcher, LARC, stated that she would deal with a single broad issue:

that the requirement, with the insertion of subsection (3A) in section 25 of the Constitution, that national legislation must set out the “specific circumstances” in which a court may determine that the compensation

payable be nil, was likely to be an unconstitutional limitation of the power that the state had in terms of section 25, as it stood, to constitutionally expropriate property for the purposes of land reform.

Section 3A was an unconstitutional requirement. As the Constitution stood, expropriation was permitted but adding, “with nil compensation under certain circumstances” limited the powers of the Constitution. That was inappropriate.

The intended subsection (3A) as it stood, with the internal limitation, would prevent any substantive enquiry into the reasonableness of nil compensation in circumstances that were not part of the closed list. Doing so would take away opportunities to explore and develop what was constitutionally permissible.

Discussion

The Chairperson thanked Ms Booi for a brilliant analysis of the Constitution.

Mr Shivambu could not hear (understand) what she was saying. Was her submission that the Committee should amend the constitution or what? She had to be specific. What was her view about section 7? What was her submission about 1913?

Ms Booi said she had made her presentation on the basis of understanding that a decision had already been taken. The phrase “specific circumstances” limited the power of the Executive Authority, Parliament and the Courts in respect of “specific circumstances”. That was limiting the power of the Constitution and was narrowing the power of the Constitution. If the Committee were to amend the Constitution, it should not be in a way that limited the Constitution. It was up to Parliament to pass legislation indicating “those circumstances”.

Mr Shivambu still did not understand. He said that he would ask translation services.

Presentation by Ndifuna Ukwazi

Ms Mandisa Shandu, Co-Director and Head of Law at Ndifuna Ukwazi, stated that Ndifuna Ukwazi was supportive of the use of expropriation, with or without compensation, as a means of achieving land reform and combatting spatial inequality. Expropriation, if properly utilised, was one of a variety of tools that could broaden access to well-located urban land to people currently excluded from land markets, especially poor and working-class residents.

The Constitution had never presented a barrier to land reform. The constitutional property clause – particularly sections 25(5) to 25(9) – provided the basis for progressive land reform programmes.

Ndifuna Ukwazi was concerned about comments that the Executive should make the final decision. The courts should not be ruled out of the process. The current language of the Bill reserved an oversight role for the courts. However, Ndifuna Ukwazi was concerned about various comments about limiting the role of the courts in determining the amount of compensation in cases of expropriation for the purposes of land reform made by Members of Parliament (MPs) during the meetings of the Ad Hoc Committee. In particular, the Chairperson of the Ad Hoc Committee MP Mathole Motshekga, had mentioned that the role of the courts should be limited to administrative review when it came to expropriating land and landed property in the public interest.

The organisation maintained that court oversight was essential and that it would be deeply problematic to give any member of the executive the primary oversight function in relation to determining in which circumstances compensation for expropriation could be nil. There are two key reasons why the primary power to determine compensation in cases of expropriation for land reform should vest in the judiciary and not in the executive.  First, land reform and spatial transformation is not a political project that could be subjected to the priorities and/or policies of the government of the day. It was a long-term project that was likely to extend over multiple successive governments. Second, limiting the role of the judiciary to a review function might, ironically, delay the land reform project more than by giving the courts more wide-ranging powers to determine the amount of compensation or to determine appeals, due to the fact that judicial review could only take place after an administrative decision had been taken and all internal remedies had been exhausted. The effect would be that an official in the executive branch would make a decision, which could still be subject to judicial review, which would delay the process.

Ms Shandu was concerned that the Land Reform Bill was in process in Parliament and those public hearings had been heard without a full understanding of the proposed Constitution Amendments. The Constitution would provide an enabling framework that ought to be defined by national legislation. She recommended the speedy enactment of legislation to specify the circumstances under which EWC would be applicable and would give, in effect, provide a list of principles that would guide just and equitable compensation. 

Discussion

Ms Mahlatsi asked Ms Shandu for her  understanding of the process that Parliament was undertaking, if she considered it misinformed, based on the needs of the country. Why would Parliament undertake such a tedious process if it were misinformed?

She noted the reference to financial implications and capacity constraints. What did Ms Shandu mean? If the legislation went through, and expropriation was without compensation, why would there be financial constraints? The “willing buyer, willing seller” principle had not worked and that had always been explained as being a result of capacity restraints related to restitution and not to restoration.

Ms Mahlatsi asked why Ms Shandu thought that the courts should be involved when people had voted for the government. They had voted for a particular government, so why take the process away from the voted representatives? Did she think that the judiciary was sufficiently transformed to deal with such a process?

Mr Shivambu asked about the background to her organisation (Ndifuna Ukwazi). Where did they come from and who was on the board? Who were the funders?

The Chairperson told Ms Shandu that other presenters had informed the Committee about their background, etc. so Mr Shivambu’s question was a good one.

Ms Shandu stated that she had not gone into details because the background to the organisation had been explained in detail in the written submission. Ndifuna Ukwazi was an activist law centre, based in Cape Town, that undertook litigation, research, advocacy and community organising. Its purpose was to seek urban land justice so that land be unlocked in urban areas that would challenge the inequalities of apartheid land allocation across SA, but particularly in Cape Town as the challenge of continuing spatial inequality was particularly evident in Cape Town. Board members were listed on the letterhead in the written submission (Shuaib Manjra (Chairperson), Ruth Hall, Phumeza Mlungwana, Mercy Brown-Luthango, Michael Evans).

Basically, Ndifuna Ukwazi was funded by a combination of local and international donors and smaller contributions from individuals.

Mr Shivambu asked for the names of the funders.

Ms Shandu could forward a list of funders but off the top of her head she could mention the South Africa Development Fund, the Raith Foundation, the Clause Leon Foundation, the Open Society SA and the Ford Foundation, Comic Relief Fund.

Mr Shivambu stated that when he heard those names it made sense to him.

In response to Ms Mahlatsi, Ms Shandu stated that it was not her position that the process was misinformed. Ndifuna Ukwazi was not against the process of land reform; there was a need to accelerate it. She had stated that the process was misplaced in the sense that the Constitution already allowed for expropriation without compensation as a tool. It might even be just and equitable to offer compensation of R1. She envisioned a situation where there was a land occupation by people who were landless, and that land could be expropriated from a landowner which then would allow authorities to build services on that land.

Regarding financial constraints, Ms Shandu had stated, not that it would not be an overly financially burdensome process, but that there had to be an assessment of the current financial restraints that limited land reform. She supported the urgent need for it and that more resources were needed. The “willing buyer, willing seller” point related to her initial point that it was the policy of previous governments to ensure a fair buying and selling process but that had never been established in law. If the country wanted to move away from that policy, was it appropriate to amend the Constitution to ensure that a policy position was not dominant? She did not think so.

Ms Shandu stated that the issue of the court was related to the separation of powers. Given the heated situation in which the process was taking place, she believed that the courts would give more support if the criteria were set out in ordinary legislation so that would guide the courts. It was better aligned with the concept of the separation of powers and would not be at the whim of whatever political party was in power at a time. She appreciated that Parliament had taken the land question a long way forward and her comments were not intended to negate the work of Parliament but to ensure that the process would long outlive the cycle of a political party.

Presentation by Legal Resources Centre (LRC)

Ms Wilmien Wicomb, Attorney at the LRC stated that decisions about expropriation of land without compensation should not be restricted to the courts; it should be an administrative decision as a judicial review was always a right following any administrative decision. She recommended the removal of the reference to the decision by the court in the Amendment to the Constitution.

Legislation had to include the circumstances under which nil compensation would apply, but it should not be included in the Constitution which should just refer to the fact that there would be named circumstances in the legislation, otherwise it would be a long and expensive process. That would not solve everything but it was important. It appeared that the debate centred around the concerns of white people when, in reality, it was that big companies that were depriving black people of their land for mining, etc. She presented several examples where the Courts had recognised common law property rights. However, she referred to communities that had been successful in ascertaining that their land could not be used for mining, but the Minister of Mining was appealing that decision by the Court.

Ms Wicomb suggested that the country needed African jurisprudence around the land rights. The Courts were stuck in an old school approach to land.

Discussion

The Chairperson appreciated the insightful contribution. He asked for her presentation to be submitted to the Committee Secretaries as she had referred to actual examples.

There were no questions for Ms Wicomb.

Closing remarks.

The Chairperson noted that the Committee had completed its work for the day.

 

The meeting was adjourned.