Section 25 review: progress update & selection of oral submission participants

Constitutional Review Committee

22 August 2018
Chairperson: Mr V Smith (ANC)
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Meeting Summary

Constitutional Review Committee Meets to Finalise Participants for Oral Submissions

The Joint Constitutional Review Committee met to discuss a preliminary report on the written submissions and a preliminary report on the public hearings that took place all over the country.

Prior to this, the Committee discussed the media reports that preliminary report on the written submissions was leaked to the ANC NEC. It was confirmed that the reports were inaccurate and the report was not leaked.

The report on emerging trends from public submissions on the review of Section 25 of the constitution was compiled by a service provider but presented by one of the Co-Chairpersons.

The emerging trends showed that of the 149 886 submissions, 60 157 indicated that Section 25 of the constitution must be reviewed while 89 327 indicated that Section 25 of the Constitution should not be reviewed. There were 402 submissions that were undecided. This showed that 59,6% thought that the Constitution should not be reviewed, 40,14% thought that the Constitution should be reviewed while only 0,27% were undecided. 

The high line trends for those that do not want the Constitution to be reviewed speak to the fact that the Constitution in its current form already allows for expropriation without compensation. With regards to socio-economic issues, the arguments used mainly talk about the fear of loss of investment and donors, possible job losses, threats to food security and shortages and the risk of junk status.

Another view that was expressed is that this whole exercise is dividing the nation instead of uniting it.

Some trends showed that instead of amending the Constitution, alternative solutions to Land Reform should be found.

Other issues raised took into consideration the fairness of the process taking into consideration that people had invested in the properties, they had bonds, others had paid taxes and rates and the injustice of losing the property that they own.

The first trend on the side of those who supported the review of the Constitution was the view that there needs to be a recognition of the historical injustices. The current land owners acquired such land unfairly and that requires rectification.  The submissions felt that there should be amendments to solve of the empirical difficulty in determining the fair and legal ownership of land through the history of South Africa. To whom does the land belong? Does it belong to the Khoi-san people or the rest of everyone else?

Another trend was that the constitution must be amended in its current form because it was in fact an impediment to Land Reform. The Constitution must be amended so that those injustices can be fixed.

Those in favour talked about the legal entitlement of farm labourers to keep possession of land they have lived on and owned over years. The illegal forced removal of farm workers by new farm owners also featured in the trends.

Proponents argued that land expropriation promoted nation building and equality. It would restore the dignity of the people that lost their land and reclaim the people’s cultures.

Some committee members felt that the service provider’s report was unfairly biased towards the view that the constitution should not be reviewed. They asked about the service provider’s composition, what terms of reference was given to it, about the vetting of its staff and who was monitoring its work. The Committee agreed to call in the company to account for all the issues raised by Members and requested that written submissions be forwarded to all Members.

The second document was presented on the qualitative information that had been received from the public hearings.

Many people stated that there were high levels of landlessness among the majority of Africans, a legacy of apartheid and colonial dispossession.  Patterns of land ownership in South Africa were mainly skewed towards the white people. The participation in agriculture and related value-chains was only skewed towards the White people and against the majority of Africans.

There were also divergent views in relation to expropriation without compensation as a mechanism to speed up redistribution.  There was the view that government needed to redress the injustices of the past at a lower cost to the state and also bring more people in the mainstream of SA economy through land reform.

There were concerns about the unintended consequences to the economy which were mainly job losses and investment stagnation (lack of investment in the economy).

There were also views that found that the constitution should be amended because under the current provisions, it would be very difficult, if not impossible, to achieve expropriation without compensation. 

Another view was that the redistribution should give private property rights through title deeds

With regards to the traditional councils, there were contrasting views - some want them to own land and others reject that view stating that chiefs never owned land.

Redressing the inequitable land distribution patterns must result in restoration of rights and dignity for blacks in general.

The Committee raised concerns about the second report as well. Members felt that the views described were not a true reflection of what had transpired in the oral submissions made during the public hearings. A lot of comments that were made at the public hearings were left out in the public hearings report. The Committee also asked for all the electronic recordings of the public hearings in all the provinces. This would help it compile substantial and comprehensive reports which would help augment the lacking public report on hearings presented to them.

The Committee discussed the persons and groups that would be invited to make oral submissions.  The list included religious groups, academic institutions, the private sector, advocacy groups, civil society, the agricultural sector, professional bodies and cultural movements. The Committee decided not to open up new requests for oral submissions. The Committee agreed that no political party and government department would be invited to make oral submissions.

 

Meeting report

Opening Remarks and Agenda

Co-Chairperson Nzimande greeted the Members, colleagues and everyone. The Parliamentary members were given the opportunity to consider the agenda and make recommendations.

No recommendations were made.

Co-Chairperson Mr Nzimande asked for apologies.

Mr E Inkosi Buthelezi and Ms G Breytenbach had submitted apologies.

Mr F Beukman and Mr J Malema would be running late.

Co-Chairperson Nzimande stated that the next matter on the agenda would be an update report on the service providers that were compiling and summarising the written submissions. Co-Chairperson Smith would give the background and context of the item on the agenda and make the presentation on the report.

Alleged leak of preliminary report

Dr A Lotriet (DA) asked if the Committee could discuss the allegations that the report was leaked to the ANC NEC. She thought the Committee should not proceed without clarity on who had received the report and whether the NEC had seen the report before the Committee.

Ms D Carter (COPE) said that the Committee was told that this was a procurement process and thus asked what process was followed to select the service providers.

Mr N Shivambu (EFF) stated that before the meeting the Co-Chairperson requested submissions on the agenda. Members did not raise any additional issues. If there are additional pressing issues, they must be submitted in the agenda. There was a process of finalising the agenda. Members should not want the Committee to discuss issues that were not on the agenda. The agenda was already adopted.

Ms Carter clarified that her question was item number three on the agenda.

Co-Chairperson Nzimande stated that the Co-Chairperson Mr V Smith would also cover the responses on the report.

Co-Chairperson Mr Smith asked to deal with the second item, the procurement. He thought that Ms Carter would have been aware that public representatives should not get involved in procurement processes. This is exactly what happened - Public representatives did not get involved in the procurement. He thought that if there were queries with the procurement, they should be taken up with the parliamentary administration. Nobody in the parliament got involved in the allocation and awarding of contracts. “Everyone heard about it in the field”.

On the matter of the leaked report, he stated that no document was leaked. The first time the report was made public was yesterday when the parliamentary members received it electronically. He declared that if the media had evidence, it should produce it. There was no report that had been made public to anybody.

Mr S Swart (ACDP) referred to Mr Smith’s statement – that the details about the procurement were “heard in the field”. However, the matter about the procurement pertaining to the election of an outside service provider had been discussed by the committee in previous meetings. He was concerned that the Committee was not given time to apply its minds on the submissions. It merely received information. He requested that the question of how the Committee would apply its minds on each submission be discussed as the report was progressed.

Co-Chairperson Smith did not understand what the problem was with the awarding of an outside service provider because if the PFMA stated that the public representatives could not get involved in the process and if indeed the Committee had taken a decision that politicians would get involved – discussing the procurement process would have been inconsistent with how the Committee goes about serving the people of South Africa.

Mr Swart clarified the in the previous meetings information was merely given. The Committee did not apply its minds. Parliament was just told that an outside provider would be provided through a procurement process.

Co-Chairperson Nzimande responded that they had reported to the Committee from management on how the procurement process would unfold and the Committee endorsed it. He did not understand what Mr Swart meant by saying that the committee did not apply its mind.

Mr Swart clarified that when he spoke about applying their mind as a Committee, he was referring to the submissions and not the awarding of the contract.

Co-Chairperson Nzimande stated that the only format of the Committee applying its mind was the consideration of submissions - this was still going to happen. He requested that the Co-Chairperson Mr Smith continue.

Presentation on the Report on Emerging Trends from Public Submissions on the Review of Section 25 of the Constitution: Trends.

Co-Chairperson Smith opened the presentation stating that he was not going to speak on every page of the document as it was still a work in progress. The first two pages of the report talk about the mandate the Committee had adopted.

He indicated that the report was based on 149 886 submissions that had been processed thus far, by the end of the previous week. These were submissions from across the board.  This was the work that was done by the service provider. The remainder of the submissions were being analysed and would hopefully be completed by the end of the month. The actual number of submissions would only be determined after the remainder had been analysed.

He reminded the Committee that it had taken a decision that submissions that could not be traced would be discarded. That exercise had been done. 

The emerging trends showed that of the 149 886 submissions, 60 157 indicated that Section 25 of the constitution must be reviewed while 89 327 indicated that Section 25 of the Constitution should not be reviewed. There were 402 submissions that were undecided. This showed that 59,6% thought that the Constitution should not be reviewed, 40,14% thought that the Constitution should be reviewed while only 0,27% were undecided. 

The demographic information per province could be viewed on slide 8 and slide 9. 775 submissions came from outside the country.

What the report tried to do was to pull out the trends that were raised by the analysis of the submissions and analyse them in two groups – those that wanted the Constitution to be reviewed and those that did not want the Constitution to be reviewed.

The high line trends for those that do not want the Constitution to be reviewed speak to the fact that the Constitution in its current form already allows for expropriation without compensation. With regards to socio-economic issues, the arguments used mainly talk about the fear of loss of investment and donors, possible job losses, threats to food security and shortages and the risk of junk status.

Another view that was expressed is that this whole exercise is dividing the nation instead of uniting it.

Other trends highlighted is that the Land Reform Process should be transparent.

Others felt that if there was going to be land expropriation without compensation, the priority of Land Reform Process should be government-owned land.

Another trend was that this whole process was a tactic to garner election votes.

Some trends showed that instead of amending the Constitution, alternative solutions to Land Reform should be found.

Other issues raised took into consideration the fairness of the process taking into consideration that people had invested in the properties, they had bonds, others had paid taxes and rates and the injustice of losing the property that they own.

Other issues raised in the submissions were the Security of Tenure – the legal entitlement of the current owner to keep their land and the inalienable right to property.

There were also concerns about the risk of corruption and land grabs by those who are subsequently placed in positions to do so.

There was a thinking that maybe the matter needs further investigation before any decisions could be taken.

The last matter raised by those submissions that were against the Constitutional Review was the matter of custodianship of land. This questioned the ability of the new recipients of land to adequately and effectively utilize land in order to prevent a range of socio-economic impacts.  They made references to failure of land reform processes in countries such Zimbabwe and Venezuela.

The first trend on the side of those who supported the review of the Constitution was the view that there needs to be a recognition of the historical injustices. The current land owners acquired such land unfairly and that requires rectification.  The submissions felt that there should be amendments to solve of the empirical difficulty in determining the fair and legal ownership of land through the history of South Africa. To whom does the land belong? Does it belong to the Khoi-san people or the rest of everyone else?

June 1913 was in fact an inhibitor to certain sectors that felt that the injustices that the constitution needed to correct for occurred way before 1913.

Another trend was that the constitution must be amended in its current form because it was in fact an impediment to Land Reform. The Constitution must be amended so that those injustices can be fixed.

Those in favour talked about the legal entitlement of farm labourers to keep possession of land they have lived on and owned over years. The illegal forced removal of farm workers by new farm owners also featured in the trends.

Proponents argued that land expropriation promoted nation building and equality. It would restore the dignity of the people that lost their land and reclaim the people’s cultures.

Land expropriation gives the security of tenure. It is not only about farming but also the creation of jobs and the provision of residential areas.

Co-Chairperson Smith stated that the matters raised in the submissions were not new matters.  They were a confirmation of the written submissions.

He concluded that these were only 149 886 submissions. There would probably be another 300 000 that would come. These covered substantially the areas of argument.

Once the report is completed, all the submissions would be made public. The submissions are not only in hard form but also in e-mails and memory sticks. Parliament had to decide how the public would access these if they wanted to get access to them.

Discussion

Mr Shivambu thought that when the Mr Smith spoke about the demographics of the submission, he would speak about the demographics of the people who made submissions.  What is the racial composition and the gender balance in the submissions? This would help in checking whether the written submissions are a true reflection of South Africa. 

Written submissions were also made through e-mails and the Committee knows who has no access to e-mails in South Africa. The 60 000 figure might be telling a story of who has access to e-mails because some people do not have access to e-mails.

Mr Shivambu indicated that the report was inconsistent in that numbers were provided for those who were either against or those who were for the review of the Constitution. However, when it came to the demographics, there were no analysis numbers given.

Further, everyone who attended the public hearings would know that the representation there was relatively balanced in terms of race. A proper analysis of the demographics would be a more representative gauge. He acknowledged that he was not stating that a referendum is being run. It was not about numbers but the substance of the matter at hand. He emphasised that his request was that there be consistency in the report. 

In his view, it appeared that someone rushed to announce the number of submissions prematurely. The President stated that the submissions were around a million, but it looked like the submissions would not get to a million or even half of that.

Dr Lotriet was concerned that Mr Smith mentioned that some e-mails whose addresses could not be traced would be discarded. If the Committee looked at material at what qualifies a a submission is it is clear that there is no specific way that a submission needs to be. If there is an e-mail sent with an IP address, then it is a legal submission. It cannot be discarded. It should still be part of the report.

She also asked how the actual residency of the person sending the e-mail was determined. How did the figures in the report come about?

She clarified that there were 33 hearings and not 34 because the final one was two groups combined together in Cape Town. On average, there were about 75 people that spoke a day. This was about 2,500 people that spoke at the public hearings on behalf of the 57 million South Africans. 

The process that would be followed with the submissions had been decided on and it could not be changed now. Those who do not have access to an e-mail were not stopped. There were other options to submit. Everybody had a right to make a submission in South Africa. You could post it, you could hand deliver it or send it via courier.

One of the things that have been coming up is the pre-1913 matter when it comes to security of tenure. This was one matter where we actually found out that we had all different kings from the Khoi-San people raising the pr-1913 issue, whether they agreed or not, they all came forward.

She asked when the Co-Chairpersons thought the other submissions would be completed for a report as it took five to six weeks longer for the 149 886 submissions to be finished.

She also stated that it was important that before anything was discarded, it would be brought before Parliament to look at.

Mr Swart asked how many submissions were discarded. He noted that it was important for Mr Shivambu to remember his words that this was not a referendum.

It is also important to note what the President of the ANC said - that he had heard what the voices of the people were saying. This was premature because now we see that 90 000 of the written submissions are not in favour while 60 000 are in favour of the review of the Constitution. You can see that the majority are not in favour of the amendment. The process is still ongoing; however it was regrettable that the President of the ANC made the announcement while Parliament was still in process. He asked for an indication from the service provider as to when they would finish with the submissions so that Parliament would understand how to handle the process going forward.

Mr T Motlashuping (ANC) thought that he was in parliamentary process to discuss parliamentary issues. Issues that happened in political parties should be discussed in those political parties and not be made parliamentary issues. There should be a separation between political party issues and parliamentary matters. The Committee was dealing with facts and not rumours, perception or allegations.

Ms D Carter raised a point of order. The president of the country went on national TV and made a premature announcement about the submissions.  The constitutional rule was that when you take an oath of office you are not responsible for your party, but you are responsible to the citizens of South Africa.

Co-Chairperson Nzimande stated that Ms Carter had made her point and that she was now out of order.

Mr Motlashuping read from what Mr Smith was presenting that this was a preliminary report. He did not have the advantage of having the terms of reference that were given to the service provider. Looking into the report holistically, one would realise that it appeared that the report was in a referendum mode - where it was numbers versus other numbers. He expressed that he was not sure how the definite numbers were reached if the report was still a preliminary report. If you are still in the process of doing the work, you would not reach the ultimate number that is exact. How did the determination of the exact numbers come about?

However, he thought that if we looked at the second report, it diverts from the first one. Even the formats looked similar. On the first report on written submissions there is an information breakdown on demographics by province and the number of people who made submission. However, on the second report on public hearings, there is no breakdown on demographics. If one wants to look at the numbers and be biased towards the numbers, then there should be numbers shown also for the public hearings.

A Member voiced concern that the report mentioned that there were 775 submissions from outside the country. He asked who these people were. This was an internal matter. Are these South African voters? What is their citizenship status in relation to South Africa? What were the interests of these people?

He emphasized that he was aware that there were South African citizens outside the country. However, it was important that Parliament gets a precise analytical report on each of the 775 submissions from outside the country.

Secondly, with regards to the security of tenure by those in favour of the amendment, he asked if the matter was referring to the standard 30-year principle that if you reside on someone’s property for more than 30 years uninterrupted and there was no legal process instituted to remove you, you are therefore entitled to claim that land as yours. This was one of the principles of the South African Law and it affected some of the farm dwellers that have lived in farms for over 30 years and were being forcefully removed. He remarked that a clear specific legal explanation on the matter was needed.

The third issue spoke to the processes. He asked if Parliament had a predetermined process to be followed in dealing with the submissions because some members were talking to the content while others were talking to the process. If there was no predetermined process of dealing with the submissions, there was a need to take a step back and determine it. Just parliamentary measures and procedures may not be enough alone.

Mr J Malema (EFF) thought that the leadership of the Committee should be careful. It appeared as if they were set up by the company looking at the submissions. He was not sure that the company was even vetted or what the views of the directors of the company were. He asked what the composition of the company was. The report was a set up and that it is why it had numbers even though it was told that this was not a referendum. To show that the company has a position – the whole idea was to try and create an impression that the majority of the submissions do not agree with the Constitutional review even though Parliament had stated that numbers did not matter. Why put numbers when they do not matter?

Secondly, the company did not put the numbers of the public hearings because they do not favour its views.

Parliament should have allocated the processing to parliamentary staff and when the need arose, employ more external people to avoid sending the work to people who have views on this matter. There are no neutral people in this country, particularly on the matter at hand. The best thing was to get the company to come and present. Parliament should not address Mr Smith as if he was the one who had created the report, nor should it create the impression that he was responsible. 

The story that people could e-mail and send post-mail was too elitist. People of a certain ethnic group may not understand what this meant. They did not know that there was a trade-off between buying a stamp, an envelope and taxi money to send the post versus buying bread to some people. Every cent amongst his people mattered. If they were to be given a chance to express themselves without fear or favour and without financial implications, they would express themselves as they did in the hearings. The written submissions were not a true reflection of the feelings of the people of South Africa. The details of the report would be considered, however, no one should use them to pursue a certain narrative. He submitted that the company should come and make the presentation itself.

Addressing the matter of people living in another province but sending e-mails whilst they were in another province, he stated that this was not really an issue. This was merely showing that people from all over South Africa participated. The issue was immaterial.

Regarding submissions from outside the country, Mr Malema asked who these people were and what their interests in the country were. The company should answer the questions and take ownership, including campaigns.

It was no secret that the Afriforum ran a campaign where people were told to send the same e-mail repeatedly. He asked what that e-mail accounted for. People ran their own websites were people were making submissions through these websites answering certain questions phrased differently to pursue a different narrative. What do those things account for? Was it the same as an individual genuine submission or was it treated differently? These were things that Parliament needed to deal with once the final submissions came.

He asked the Co-Chairpersons to not be derailed.  There was an intention to derail the process. Any form of derailment is unconstitutional. Everyone should let the process unfold and not come with derailing tactics. Matters should be allowed to go through processes and be debated in the assembly and voted on in the assembly. No amount of delay would help anyone.

Mr L Mpumlwana (ANC) asked if there were any officials who monitored the service providers during their work or they worked alone. Secondly, there were two things that needed to be added which he thought that were left out in the report but had been mentioned in the submissions. There was a point under security tenure, where there was a complaint about the denial by the farmers to allow the government to provide basic services to the farmers. These services included security.

Mr Mpumlwana was interrupted by the Chairperson stating that the matter would be addressed in the second report.

Dr Lotriet had a concern with Co-Chairperson Smith’s remark that the procurement process is something that the politicians could not be involved in. Her problem was that it had been said that the whole issue of the terms of reference was not necessary a staff matter. She asked who had decided on the terms of reference. Could the Committee have the terms of reference? The terms of reference were the crux of the whole report. In terms of the submissions, was there a specific format, terms of reference and brief required from the company to report to Parliament? She understood that this was not a referendum, but the Committee was looking for cogent arguments. How would the cogent arguments be portrayed in the report? What kinds of support were needed for a particular argument?

Mr S Mncwabe (NFP) wanted to speak to the proposal made by Mr Malema of calling the company to come and present. He supported the proposal as the option would allow for Parliament to get more answers. He warned that Parliament must be cautious in everything it did. It was a common cause that in the country, everyone is allowed to go to court. Some people were trying to drive Parliament to court. If the Committee was not cautious, it would find itself in court on the basis of irregularities that the Committee might make knowing or unknowingly. 

He emphasised that the Committee should apply its mind on the issue of the submissions from outside the country. This could be another trend. There might be a lot of consequences related to considering these submissions.

He emphasised that he supported the idea of scrutinising the company and getting it to come and present.

Co-Chairperson Smith though the Committee should discuss the proposal because if it won the day, there would be no need to answer the questions raised.

He explained that the Committee was working against time. The work had not been finished by the company. He asked if the Committee should then call for an interim report or for a final.

In the mean-time the Committee could ask for the terms of reference from the company because the Committee did not decide on them. It could ask for the details of the company and who was supervising the company. The supervision of the work that was being done was not carried out by the Committee. He would imagine that it was being carried out by the parliamentary staff. The preliminary details could be gathered but the fundamental question as whether the company was to be called for an interim or final report. He also added that, depending on when the company was called, the programme would be affected.

He suggested that the Committee looks at the programme as it would indicate to both the Committee and the service providers the urgency of the matter.

Co-Chairperson Nzimande said the concern about demographics should be raised with the service providers. The matter should be populated with more details otherwise this would remain an area of concern.

Mr S Maila (ANC) supported the proposal. He suggested that the Committee calls for the interim report so that it did not wait for a lot of gaps to be in the report. It would help to iron out the gaps as soon as possible.

A Member stated the very fact that so many questions came up after the presentation by Mr Smith confirmed the desirability of the company coming to present. He wanted to add that when the company came it should also add the responses on the issues that have already been raised at the current meeting as the Committee did not want to waste time raising the issues again. 

Mr Mncwabe advised that the company should present an interim report so that it moves together with the Committee towards completion.

Mr Shivambu recalled that the Committee had said that each submission must have an ID number. This would help the Committee in terms of knowing the gender of the people who had submitted, the age, race and nationality. This will help the Committee in terms of demographics and the issue of repetitive questions by the same people. It appeared that Afriforum employed people in their Pretoria offices to make numerous submissions at a time. The Committee might think that the statistics in the report are true only to find out that they are distorted. One person should have one submission. The Committee did state that if there was no identity number the submissions should fall off.

Ms M Mothapo (ANC) aligned herself with the immediate speakers before her. She said that the speakers were very progressive. As to when to call the service providers she suggested that it should be within 7 days from the day of the meeting.

Co-Chairperson Nzimande stated that the public hearings were done by the committee members, they did not commission them. Based on that fact, he asked the members if the summary presentations of the public hearings should be done at the meeting as they would not be presented by the service providers.

Mr Motlashuping said that there was some form of bias in terms of the reporting of both the submissions and the public hearings. He stated that there should be consistency in the form of reporting.

Ms Mothapo asked for clarity in terms of the tone and template of the report. It appeared that everything including the tone between the two reports was similar. She was confused why the presentations were to continue as the appeared to be written by the same party. She had understood Co-Chairperson Mr Smith to say that the two reports had not been made by the same parties. However, she felt that the tone and even the template were sent by the same entity for the people compiling the same report.

Ms Carter asked if it would not be better if the Committee had insight as to the terms of reference, given the comments raised by the members. Even the staff, who were working on the report on public hearings, may have been working under terms of reference that the Committee had not received; hence the similarities in the reports.

Looking at whether the public hearing summary presentation should continue, she indicated that getting the terms of reference would guide the Committee on making that decision.

A Member stated that time was a luxury the Committee did not have. He had not heard any valid reason on why the presentations on the public hearings could not continue. He requested that the Committee proceed with the presentations.

Co-Chairperson Smith stated that the Committee Section is responsible for committee meetings and records are always prepared by them without the interference of the committees. The Committee considers and improves on the report until it is satisfied, wherein they adopt the report. The same process was followed with the public hearings. There was no knowledge on what notes they took, on the terms of reference they used or the template. He understood that the staff members were professionals who were responsible for this in every committee meeting.

Co-Chairperson Smith thought that the matter on the service providers should be closed. The company would be called on the following week, Wednesday. The comments raised by the Members would be raised to the service providers and preliminary information about the service providers would be requested for the Committee. The terms of reference would also be requested for the Committee.

He requested that the presentation on public hearings continue as they did not have the terms of reference because they were taken by parliamentary staff. The presentation would be an interim report. The intention was that the Committee identifies the gaps and take it back to improve it on, as opposed to getting the final report at the end and then rejecting it.

Presentations on Trends on Public Hearings on the Review of Section 25 of the Constitution

Dr Thwala commenced the presentation by stating that the report would be mainly about the qualitative information that had been received from the public hearings.

As an introduction she reminded the Committee that the National Assembly (NA) and the National Council of Provinces (NCOP) took resolutions to review Section 25 of the Constitution in February 2018 and March 2018 respectively. The task was referred to the Constitutional Review Committee (CRC) to conduct on the behalf of the NA and NCOP. The resolutions required the Constitutional Review Committee (CRC) to consult members of public. The CRC was also required to report back to the Houses of the NCOP and National Assembly.

The Constitutional Review Committee conducted public hearings in all nine provinces from 26 June to 4 August 2018. The aim of the public hearings was to solicit the views of the public as part of the public participation process.

The aim of the report was to present the findings from the public hearings.

Prior to the public hearings, the CRC hosted a colloquium on Section 25 of the Constitution on progress made with regards to the implementation of Section 25. This was to understand the successes and limitations of Section 25. A team of public educators was also deployed to the selected districts to raise awareness of the relevant clauses of Section 25 in order to enable members of the public to engage meaningfully in discussions during public hearings.

The parliamentary communications team also sent out media statements on the public hearings.

The Co-Chairpersons of the CRC also gave interviews to various media companies. Parliament took reasonable steps to ensure maximum participation in public hearings by transporting members of the public to the identified venues.

The guiding timeframes for the public hearings was from 11am – 4pm. However, most hearings finished after this time because of people who still wanted to give their inputs.

The rules were also explained to the members of the public so that there was discipline during the public hearings.

Section 25 of the Constitution was either read out or copies of the section were handed out at the public hearings. The purpose of the public hearings was be explained to the participants at every public hearing. As many people as possible were given the opportunity to give their inputs.

During the public hearings 34 towns were visited. An average of 3.7 towns per province.

With regards to the findings, Dr Thwala stated that she would give an overview of the findings. Many people stated that there were high levels of landlessness among the majority of Africans, a legacy of apartheid and colonial dispossession.  Patterns of land ownership in South Africa were mainly skewed towards the White people.

The participation in agriculture and related value-chains was only skewed towards the White people and against the majority of Africans.

There were also divergent views in relation to expropriation without compensation as a mechanism to speed up redistribution.  There was the view that government needed to redress the injustices of the past at a lower cost to the state and also bring more people in the mainstream of SA economy through land reform.

There were concerns about the unintended consequences to the economy which were mainly job losses and investment stagnation (lack of investment in the economy).

People said that Property was an expansive concept – it was not only about land.  Any amendment should take note of the concerns about housing and people’s investment in their properties.

People raised that the current market-based land reform programme had not helped to redistribute land at scale. Given the failure of market-based land reform to expropriate land in the public interest there were those who said the constitution must not be amended. They said that what was required was a law of general application to clarify the matters in Section 25. The matters of expropriation should be taken to the judiciary for clarification. Amendments that clarify circumstances under which land can be expropriated without compensation should be introduced together with the law of general application.

There were also views that found that the constitution should be amended because under the current provisions, it would be very difficult, if not impossible, to achieve expropriation without compensation. 

With regards to tenure arrangements there were also divergent views around the state custodianship, and the equitable allocation of use rights.

Another view was that the redistribution should give private property rights through title deeds

With regards to the traditional councils, there were contrasting views - some want them to own land and others reject that view stating that chiefs never owned land.

If one looked at the discussions of the findings they would find that in terms of Agrarian Structure Inherited from Apartheid System people were saying about 87% of the total land area was exclusively owned by mostly White population – these were mostly white-owned farmlands. On farms, black families lived as labor tenants, farm dwellers & farm workers with insecure tenure. They were continuously living under threats of eviction.

The majority of South Africans were crammed in the 13% of the total land area, mostly the so-called reserves and former Bantustans.

The legacy of this era is a structural problem where Blacks were pushed to the margins of the economy and whites dominate the productive sectors.

Secondly, with regards to the land-based identities & rightful owners of land - the findings were that blacks experienced more than just land dispossession. From the early land dispossessions in 1652 to the dispossessions and forced removals of the colonial and apartheid governments, communities were distorted, and the identities constructed around those communities were interfered with.

Land dispossession took away people’s dignity. This was the dignity of communities, households & individuals. It took away the pride and sense of being of people. Dignity is associated with self & equal worth, communities the right to live as autonomous beings and not as subjects of authority of another as is the case with farm dwellers/labour tenants.

Whites, as beneficiaries of racially based land policies, were allowed to own land in their own right & exchange it in the market as a commodity, and accumulated wealth over time.

Redressing the inequitable land distribution patterns must result in restoration of rights and dignity for blacks in general.

The statement - “land must be redistributed to the rightful owners” raised questions about who the rightful owners of land in SA are.

Descendants of the Khoi & San saw themselves as the rightful owners. Other black African communities also saw themselves as rightful owners too. 

The Khoi-san people believed that the constitutional limitation of restitution (the 1913 cut-off date) excluded them from the right to restitution.

Regarding the perspectives on constitutional provisions for expropriation in the public interest and conditions for compensation, there was a group of people who felt that the constitution needed to be amended. However, there was a tension in sections 25(1) and (2) regarding the protection of property rights and expropriation subject to compensation.

Secondly Section 25(1) – (3) ties government to the payment of compensation at market value of the property, and therefore a stumbling block to a more affordable and faster land redistribution.

Those who argued that the Constitution should not be amended felt that according to Section 25(3), the compensation of property must be just and equitable; and the primacy of market value of property is not provided for in the Constitution.

Section 25(8) states that “no provision of this section may impede the state from taking legislative and other measures to achieve land, water, and related reform… in accordance with provisions of section 36(1)”.

Sections 25(5), (6) & (7) which relate to redistribution, tenure reform & restitution were advanced as key instruments to advance land reform in SA. However, with section 25(1) to (3) expropriation without compensation, even for values below market-value would be extremely difficult.

The current constitutional order resulted in less than 10% of white-owned farmland transferred to blacks over 24 years as opposed to projected 30% by 2014.

Some blame the market-value approach to land acquisition, ever escalating prices of land (suggesting that it was protected in terms of the Constitution).

Dr Thwala concluded her report by stating that some blame people blamed government inefficiencies. They make reference to the High-Level Panel report that was made in realtion to corruption, capacity constraints of the DRDLR and the Commission and the real time decline in land reform budget.

Discussion

Co-Chairperson Mr Nzimande gave Members an opportunity to express their views.

Mr Mpumlwana raised three concerns. The first was that there was an issue raised at the public hearings about farmers that were denying the government from delivering basic services like health, education, housing and so forth to farm workers. He thought that the presentation should have included the matter as it was important and had been mentioned at the hearings. He requested that it be added. Secondly, he raised the matter of the threat by foreigners who were buying South African land. Thirdly, with regards to the perspectives on constitutional provisions for expropriation in the public interest and conditions for compensation, the presenter appeared to be very lean on the views of the side that were for amending the constitution.

The presenter just said, “tension in section 25” and did not explain the point further whereas under the views of those that are against the amendment of the constitution, the presentation was furnished with more details. He asked for more arguments as they were more arguments given during the hearings. He made an example that there were people who stated that all the land must be taken and given to the state.

Co-Chairperson Nzimande noted that the members should keep in mind that the details of the presentation would be in the report that would be compiled. This was just a presentation.

Dr Lotriet asked for clarity in terms of the public educators that were used. What form of education was given? What materials did the educators use to encourage and prepare people for the public hearings?

As a matter of semantics, the presenter referred to findings. A finding is something that you almost state as a fact. She proposed that the presenter use the term comments made.

Ms Carter clarified that there were actually 33 public hearings and not 34. Goodwood was two in one. She understood that this was just a presentation. However, there were quite a few arguments that were raised in the hearings that did not appear in the presentation. One of the things that kept coming up was the constitutionality of the willing buyer, willing seller. There was also the call to correct the injustices of the past. It was not all negative.

The were successes reported with the private sector highlighting that it had started land distribution on its own and giving more than 51% share and giving farms. She stated that there were several things that the presentation did not cover and requested that more of the things stated in the hearings should be included.

Mr Shivambu thought that that the report should be augmented and suggested that Members make submissions on the comments raised at the hearings that would be included in the report. It appeared that the parliamentary reporters did not take sufficient notes.

He stated that Members had recordings of all the meetings and should not allow anything to fall in the cracks because of incompetent capturing of what the people said on the ground. He resolved that the members would make substantial submissions.

A Member stated that the ages of the people who spoke at the hearings were very critical as this was a constitutional matter. He did his best to estimate these ages and found that it appeared that the middle age to young contributed the most. This was important because young people are the future of the country. He hoped that the report would be able to capture the age matter.

Co-Chairperson Nzimande responded to Mr Shivambu stating that the part for adding substantial submissions was coming. The report was still a working document.

Mr Malema stated that Co-Chairperson Smith would know that there was a shortage of staff from logistics to all other sectors. He was not surprised at the quality of the presentation.

He suggested that if it was possible, the committee members should get the recordings of the public hearing meetings so that they can submit reports to help the staff compile a comprehensive report.

It appeared that someone thought that parliamentarians are incompetent people to whom you could just present any report and pass it without them noticing that it was incompetent. The Committee was not going to be taken advantage of by staff members or private companies. If a need arose, all the written submissions and recording must be passed to the committee members to go through them and draw up a comprehensive report per hearing. He could not feel the voices of the people; he did not think that they were represented on the presentation.

Ms T Mampuru (ANC) asked about the written submissions that were received during the hearings. She asked where the written submissions submitted at those hearings were taken.  She agreed with the latter speaker because she wondered everyday after the hearings about what was happening with the reporting staff. There were no reports given on the day of the hearing. At the end of each hearing, the committee members did not get reports to state what had transpired during the day. She asked that the members must be furnished with the reports compiled after every hearing.

Co-Chairperson Mr Smith stated that he was not sure that if the presenter should respond to the questions. 

A Member thought that the report clearly did not reflect what transpired in the hearings. She stated that it would therefore be difficult to accept the preliminary report. She also suggested that Members be allowed to get recordings and videos of what transpired in the public hearings. Perhaps a day could be set where the members can make their own submissions. 

Mr N Koornhof (ANC) acknowledged that he heard the points the Members had raised; however there would eventually be one report. What would be fair would be to allow all processes to take place and allow the final report to be compiled. Let the final report circulate to all members and only then should members add their inputs and suggestions.

Ms G Breytenbach (DA) supported Mr Malema on the request for recordings and videos of the public hearing. She stated that there were two streams during the hearings and each member could only attend one at a time. She would love to hear the other stream.

Mr Malema said that the staff component was not helpful in the meeting. He did not know how this could be addressed. Secondly, given the type of sound systems that were hired, he wanted to know how much was paid for them. Lastly, there was a public hearing in Mpumalanga where it was extremely cold. There was no type of intervention by Parliament to get heaters or anything of that sort. It was things like this that would discourage people from participating in hearings if they were not addressed including catering. Other people may not know that in some African cultures, when there is a meeting announced, the old people of the community arrive very early. People were not given water or anything and yet the government stated that it is a people’s government. They are not given basic necessities to encourage participation.

Ms Mampuru said that she would be in the Free State with the NCOP the following week as part of the Taking Parliament to the People programme. This clashed with the Committee’s planned meeting with the service provider for next Wednesday. Unless logistical alternative arrangements were made, some of the NCOP members would not be able to attend. 

Co-Chairperson Mr Smith thought that all the recordings of the hearings must be made available. He stated that in terms of the written submissions, there were hard copies, e-mails and all sorts of submissions. He was not sure if Members would ever be able to go through all of them between the time the meeting ended and the next meeting. He cautioned that when Members make some demands they should be aware of constraints like time. However, submissions should be available.

He asked that the Members agree on the matter and move to the next item without further discussions.

A Member clarified that her question had been on the written submissions that were submitted during the public hearings. She asked what was going to happen with those submissions. She also emphasised that all these written submissions must be provided to the Committee as they needed to see their contents.

Co-Chairperson Smith remarked that there was a closing date for written submissions. The Committee had stated that it would take the written submissions at the public hearings and quarantine them. They would not be used in the report. Unless the Committee came with a different view, that would remain the view.

Mr Shivambu stated that as a wrap up, the Committee had agreed that the service provider must come and present the interim report. Secondly, the Committee must be given access to the written submissions so that it could be able to examine the information provided by the report. In terms of the report on public hearings, Members would make submissions per public hearing to augment it.

Ms T Mbabama (DA) raised a point of clarity, stating that there were no written submissions submitted at the public hearings according to her experience.  What was submitted were people’s notes.

Co-Chairperson Smith stated that this may have been the experience where Ms Mbabama was. In some other hearings, there were actual written submissions submitted. These submissions were quarantined. The principle was that after 15 June no written submissions would be considered.

Mr Malema noted that he agreed with Mr Smith that written submissions had already closed.

Co-Chairperson Smith said that an environment for members to supplement the information that was given would be created. Every political party and individuals would be able to go and do their own home work.

He requested that the Committee moves to the next matter.

Ms Carter suggested that both recordings from group A and group B be made available so that the Members can make submissions even the other groups’ hearings.

Co-chairperson Smith emphasised that the principle of making the hearings available had been agreed upon. This was what he had been trying to explain.

Ms Mothapo raised a point of order stating that the Co-Chairpersons were the committee’s presiding officers and Ms Carter should show respect.

Ms Carter stated that all she was saying was that Mr Smith was acting like a school teacher or a school principal.

Co-Chairperson Smith replied stating that it was fine. He would continue to act like a school teacher because he was chairing the meeting. He would do it unapologetically.

Mr Malema remarked that if people did not act like school children the Chairperson would not need to act like a school teacher.

Co-Chairperson Smith stated that there were two more agenda items to be covered.

He thought that the committee had already dealt with the first item. The first item needed guidance from the Committee.  The leadership of the committee had continued receiving requests from the public who wanted to have sight of the written submissions. The take of the leadership was that, the matter was still work in progress. The submissions had not been formerly submitted to the Committee. The Committee was still working on the matter thus they could only be made public once they were formerly tabled and certified.

Moreover, because there are so many submissions, the committee members should be allowed to first go through them as resolved in the meeting and then they could later be opened to the public.

Guidance was needed from the committee members in terms of how access should be allowed. The view of the presiding officers was that the documents be made available for public viewing once the process had been finalised and the media would have access to them just like everybody else. The presiding officers needed the guidance from the members with regards to how the submissions should be made.

Mr Malema thought that the Committee should agree that the public would be given access to the submissions when the presiding officers and the committee felt it was time to have them published. The principle was that everybody would have access. However, committee members could not publish documents that they themselves had not seen.

Co-Chairperson Smith stated that the matter was cleared and the aforementioned would be how the publication of the submissions would be handled.

A Member stated that the Committee had agreed on to have recording available to both group A and group B. He foresaw that party A would then make the recordings available to the public. He stated that there should be an understanding that it won’t be Parliament that releasing these recordings but a particular party A.

The Chairperson Mr Smith stated that there was an agreement on this point. The principle was that the media would get the publications formerly from the committee once all members had been processed and exhausted them.

Selection of oral submission participants

Chairperson Smith reminded the Committee it had asked people from different disciplines and advocacy groups who had submitted written submissions if they would want to make oral presentations. There were about 30 people who wanted to do oral presentations. He requested that the Committee takes a decision in relation to the oral presentation be done.

The proposal was that the entire list which was available to the committee members be invited. A week was made available for oral submissions. He opened the proposal for comments.

Ms Mbabama asked if there was no possibility that there might be more people who wanted to do the oral presentations as the processing of the submissions had not been finalised.

Dr Lotriet had the same question as Ms Mbabama. She also asked how people had indicated that they wanted to present because it might be a possibility that a person indicated on their submission, but it had not been looked at.

Mr Koornhof asked if political parties were going to be allowed to make oral presentations. He thought that this would be unfair to the public because the political parties were already represented on the committee. Would we not be disallowing the public if a political party that was already represented in the committee was allowed to make oral presentations? He did not think this view should be supported.

Mr Swart stated that there has always been a practise to allow political parties to make presentations. However, the issue was whether all political parties that had requested to make presentation should be allowed. He was aware of Every Nations’ Group of Churches that had made important submissions. With regards to the religious organisation, he asked that the Catholic Church should be added on the list as they had asked to make oral presentations. He understood that the Catholic Church represented millions of people in South Africa and the Catholic Bishop’s Conference always made submissions. Could the Committee look at those organizations if they asked for oral presentation?

Mr Malema agreed with the proposal that political parties must be allowed to make presentations even if they were not on the list.

Secondly, people made written submissions, then there was a public hearing, and now there was another process where even if you had not made a submission you still want to present. He made an example that there might be people who did not want to make a presentation because they thought their written submission was sufficient and there might be people who did not want to make written submissions because they wanted to present in a parliamentary setup. He thought that the people who only wanted to make presentations in a parliamentary setup should be allowed especially if they were recognisable bodies with constituencies.

Mr Mpumlwana had a different view. He was worried about opening a can of worms. He would agree that political organisations that are not in Parliament can make presentations. However, he did not agree that political parties that were already represented should be allowed to make the oral presentation. He noted that time was a factor that was against the Committee.

Mr Maila agreed with Mr Mpumlwana on the issue of political parties. He also had an issue with departments presenting because the committee would run the risk of technocrats, people coming as organisations while they only represent themselves.

Ms Mothapo aligned herself with Mr Mplumlwana and Mr Koornhof regarding the issue of political parties. She stated that this would result in double benefits for those represented in Parliament.

The issue of individual churches as mentioned by Mr Swart would not be fair.  She suggested that recognised representative bodies like the South African Council of Churches or the South African Interface Council be allowed rather as opposed to individual churches. 

Mr Shivambu proposed that government was represented by the political parties in the Committee. It should not be allowed to present. He stated that the Committee should take cognisance of the Parliament programme that would be adopted the following day. Parliament would take a break on 11 September and re-open on 8 October. The Committee was scheduled to present a report on 24 September to the National Assembly. There seemed to be a clash with the schedules.

Mr M Motshekga (ANC) thought that the Committee needed to understand the institutions it was dealing with. What was meant by ‘government’? South Africa had a multi-party democracy. Political parties were represented in the government and thus the committee. Therefore, government was represented already. The Committee was an organ of Parliament in which government political parties where represented. The purpose of the oral presentation was to listen to the people not to ourselves. He agreed that political parties and government should not be heard at the presentations.

He agreed with Ms Mothapo that the South African Interface Council was a council that was representative of all religious faith-based organisations. On 6 August this body had a national symposium where they all met. He suggested that it was better to give them a hearing as a formation as opposed to individuals.

Co-Chairperson Smith stated that the time was now 2:30 and the bells would ring soon.

Mr D Ximbi (ANC) stated that the Committee was aware that time was against it. There was a public hearing which included traditional leaders, church leaders, and everybody was there. We cannot identify the individual church bodies. He made an example that he was alone in his church. Thus, allowing individual churches to present would pose a huge challenge for the Committee. 

A Member stated the Committee would lend itself into a serious constitutional crisis if it were going to talk about recognised churches. Who recognises church? What piece of the constitution states who is supposed to be recognised and who is not supposed to be recognised? The matter should be a question of who requested before the closing date.

Mr Malema stated that he was persuaded that only the political parties that were not represented in the Committee should be allowed to make oral presentations.

He did not understand why the Department and the Reserve Bank should be allowed to participate. On whose behalf was the Reserve Bank and the government going to speak?

Mr Swart accepted the majority view as far as political parties were concerned. However, he stated that on the issue of the religious organisations he mentioned earlier, these were organisations that had made submissions and asked to present at the oral presentations before the cut off date. 

Ms Carter stated that it was not for the Committee to reopen a whole process. The written submissions closed and the ones that indicated that they wanted to do oral presentation before the cut off time should be allowed to do so.  She accepted the view on political parties even though it was stated during public hearings that they would be allowed to do oral presentation.

Mr Mpumlwana asked if there were religious organisations that were not on the list.

Mr Malema clarified that he was saying that if there are religious organisations that had made submissions and asked to make oral presentations before the closing date, they should be allowed to present.

Co-Chairperson Smith stated that what Mr Malema was saying was the initial proposal. He reminded the Committee that the matter was work in progress. If there were names that had submitted intention to present before the closing date, which were not on the list- Members could make submissions of those names so that they could be added to the list.

He asked if they could proceed to give presentations to the names on the list minus the government and political parties.

The Committee agreed.

Committee Programme

Co-Chairperson Smith asked that the Committee deals with the programme. The starting point was that there was going to be another committee meeting the following week. There was initially no meeting scheduled for the coming week but there was a need to call the service providers. The NCOP was not available the coming week. He suggested that the next meeting must be held in two weeks on Wednesday at the same time.

Allowance was then made for presentations on the meeting dates. Deliberations will be done after the oral presentations.

He asked that the Committee agree that this was the programme it was going to work on. If need arose, they would then make adjustments.

The programme was adopted with the one amendment that the meeting would be held when the NCOP came back.

The Co-Chairperson Mr Nzimande thanked everyone for their time and adjourned the meeting.

The meeting was adjourned.

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