Expropriation Bill: Public Participation Reports

Meeting report

Briefing: Expropriation Bill public participation reports

The briefing was led by Ms Nola Matinise, Committee Secretary, and Mr Shuaib Denyssen, Committee Content Adviser. The briefing focused on the inputs the public made during the public hearings on the Expropriation Bill [B23-2020]. The presentation gave background context and highlighted the three phases of the public participation process. The procedure to follow for processing legislation could be found in Rule 286(6) of the National Assembly Rules. The Committee was now at stage 5 of the process (see page 3) where it would deliberate on the public submissions made. The Committee sought to give effect to the obligation under section 59 of the Constitution to provide reasonable opportunities for public involvement in the undertaking of the Bill.

The Committee support team divided public participation in three main phases, email-submissions (phase 1 written submissions), two sessions of oral hearings using a virtual platform (phase 2 oral submissions), and 36 public meetings of physically meeting communities in regions of the nine provinces throughout the country (phase 3 public hearings).

Members were taken through the detail of the phases of public participation – please see attached for further details. Highlights included:

-the Expropriation Bill (EB) presented itself as a public participation pioneer project to test the effectiveness of online submissions while exploiting the digital disruption opportunities that Parliament can optimise on as a means to enhance and maximise its mandate delivery

-Members of the civil society were afforded an opportunity to access a link through a WhatsApp number, which made it more feasible for the bulk of South Africans to submit their comments.

-6 216 submissions were received by 28 February 2021. Approximately 6 000 submissions were received after the due date.

-A total of 129 127 email submissions were received. Due to missing data categories and "naughty" repeat submissions right through the submission period, a total of 9 725 submissions dropped from the raw analysis to the cleaned data sheet. Some of the submissions with PDF and Word Documents found its way into the oral submissions so those views were recorded. The data we are discussing under emails are thus 119 402.

-Of the 129 127 submissions received, only 119 000 were captured on the Raw Data Sheet (RDS) by October 2021. So, a total of 9725 were not captured on the RDS. Key to note is that the two oral hearings (some of the 9725's views were captured) and 36 physical visits to provinces ensured that the views of the public were added

-The 119 402 makes up 92.4% of the total emails received; the 9 725 is 7.5% - the key is that no emails were not thrown away - the views that were repeated were not included for the sake of reasonability.

Matters to note:

-The objective is to provide a breakdown of submissions, show whether submitters supported the EB 23 of 2020 or not, and then isolate the clauses that were highlighted as problematic and clauses that were supported. 

-The identification of clauses and sections that had to be reconsidered was the main objective of the analysis.

-The requests to participate and provide relevant information with which to identify clauses and sections to be reconsidered gives effect to the Constitutional obligation for public involvement in processing legislation. The Committee wanted to know from the public which clauses or sections caused concern and what the best ways may be for the proposed Bill to be implemented

-The numbers of email-submissions were unfortunately contaminated due to submitters not providing all the required information such as whether they were private submitters or belonging to an organisation that led to the contradiction that is dealt with further in another section below. In addition, overzealous submitters repeatedly posted the same submission over several days and weeks.

- Numbers of submissions were further added due to by submissions continuing to flow into the email box after the deadline. This stretched the capturing team beyond the limits of reasonableness; the more important factor to consider was therefore to continue focusing on the identification of clauses/sections that the majority of submitters wanted the Committee to consider.

Analysis of written submissions:

- Individual submissions from the public contains the views of a few organizations that ran active online campaigns with block email messages that prompted individuals to make email submissions in their individual capacity – in other words, the over 100 000 submissions unfortunately do not represent a wide variety of views from the South African society on the EB 23 of 2020

- The views expressed in a large majority of email submissions is clearly the same as what organizations submitted to the Ad Hoc Committee processing the Constitutional Amendment Bill (CAB); the most prevalent objection in both public participation processes is to the definition of property, and clause 12 and its subsections, i.e. that expropriation without compensation is against the constitutional right to own property;

Oral submissions were undertaken on EB on 24 and 25 March 2021 – four individuals and 15 organisations made inputs.

Analysis of oral submissions

-Many submissions commented on the inadequacy of the existing Expropriation Act 63 of 1975, and on the need to standardise and clarify expropriation procedures. There was also broad consensus on the need to redress historical land dispossession. Submissions spoke to the personal, cultural and social importance of such redress, and many lauded the Bill as a powerful tool for land restitution and redistribution

- There was significant disagreement about expropriation without compensation

- There was also disagreement about which spheres and branches of government should be involved in expropriation procedures

- There was however broad consensus on the need to redress historical land dispossession. Submissions spoke to the personal, cultural and social importance of such redress, but a few organisations saw the Bill as a powerful tool for land restitution and redistribution.

Public hearings represented the last phase of the public participation process. The Committee undertook to embark on a nationwide roadshow of public hearings. They visited 36 Districts in all nine provinces. There were four Districts targeted per province and granted opportunities to make submissions on the Bill. This was done due to the restricted mobilisation numbers which applied during the lockdown phases of the hearing. Submissions from political parties like the African National Congress (ANC), Democratic Alliance (DA) and Economic Freedom Fighters (EFF) were the same as those received in various provinces and were scripted. There was confusion between the EB and the process of the amendment of section 25 of the Constitution.  Some speakers viewed Title Deeds as unnecessary. A number of speakers claimed that the land should be expropriated without compensation. Although some speakers showed support for the Bill, this support was conditional. The Khoi San chiefs strongly voiced their opinion about the legality of the bill and emphasized that land should be given back to them as the First Indigenous Nation of South Africa (FINSA). During these public hearings 42% were in support of the Bill, 27% were not in support of the Bill and 31% were unsure.

It was recommended that the Portfolio Committee adopts the Expropriation Bill [B23-2020] public participation as a true reflection of inputs received from the public while processing this piece of legislation. Further to this, the Legal Advisers from Parliament, DPWI and OCSLA would need to respond to issues raised in the reports and advise the Committee on how the bill amendment process will unfold.

The Committee should, during the first term of 2022, prioritise the consideration of the Bill clause-by-clause as prescribed in NA Rule 286 (6), with the aim to finalise the process and table a final report for tabling.

Discussion

The Chairperson thanked the staff for their detailed presentation covering the work that had been done during the public participation process. Members were invited to engage with the matters.

Ms S Graham (DA), wanted to commend the team. The public participation process had been a “mammoth undertaking”. The thoroughness with which the process had been dealt with by the team had been really exceptional. The same could not be said of the Ad Hoc Committee dealing with amending section 25 of the Constitution. It was something that the Committee had been alerted to because so much of the work done there [the Ad Hoc Committee] was bypassed. The [Public Works] Committee’s team responsible for the public participation process had been outstanding in the detail that they had gone into and the capturing of information.  She thanked the rest of the parliamentary team on the outstanding work done in line with the public hearings. It was a really well-oiled machine. There were a couple of glitches but they were minor in comparison to the incredible work that had been done. The volume of information the Committee had been provided with had made it difficult to go through all the material. The only reports she had fully read were the ones on public hearings. She wanted to ensure that everything which had happened was properly captured.

She wanted to raise a couple of concerns with regard to the presentation. Firstly, aligning with an organisation’s views did not necessarily mean that the view of the individual was not personal. “If I say I agree with the Democratic Alliance in terms of their submission because they are encapsulating the issues that I have with the Bill. My personal opinion is in alignment with that.” This did not mean that aligned opinion could not be taken as an independent view. The Member had a bit of an issue with that. Secondly, the term ‘onteiening’ was the Afrikaans word for ‘expropriation’. Expropriation meant taking something away from its owner and this was what the term onteiening was. If one were to translate ‘expropriation without compensation’ in Afrikaans it would read as ‘onteiening sonder vergoeding’. The Member was concerned more was being made of “a thing around the name of onteiening as though it is not an accurate reflection of what is happening”. Onteiening and expropriation were the same things. There was this perception being created that the term ‘onteiening’ was a misconception or was a miscommunication of what was happening but it was the same as expropriation.

Having gone through the report (on public hearings), Ms Graham said she had an issue on page 26 where there may be an error. This page made reference to Limpopo but seemed to have copied and pasted information that was presented under Mpumalanga. There was concern that the information presented under Limpopo may have been meant for Mpumalanga. Additionally, the issue around the banking sector and mortgage had been placed outside of the ambit of the Bill in several places. These should not be separated from points raised on the Bill because they were not external issues.

Ms Graham needed clarity on what the information on page 75 meant. There were various repetitions present in the report. She understood that the same topics were raised but found it disconcerting when exactly the same repetition was used in the report. Extremely detailed feedback was received from the Northern Cape and Free State whereas the same level of feedback was not seen with all the other provinces. Why was the feedback on the other provinces a lot less detailed? There may be an error on page 90 which read ‘Khoisan rock drillings’ when it should have been ‘Khoisan rock drawings’. Another was spotted on page 92.

Ms Graham said she had started going through the email submissions, the raw data sheet, and there were several sections which lacked information. Was the detail precluded from being on the forms because it had not been on the submission in the appropriate way? The team was urged to provide clarity on this. She would make written inputs on the public hearings, the oral submissions and the other raw data sheet (once she had the opportunity to go through them in detail). She concluded by thanking the support team for their phenomenal achievement.   

Ms A Siwisa (EFF) said she had one issue which had been excluded when it came to people who made oral submissions on behalf of organisations. The Economic Freedom Fighters (EFF) was not mentioned as an organisation that had made oral submissions during the 7 September submissions (see page 24 of the slides). When one goes to the submissions that were done, all organisations were mentioned except the EFF – this might have been an omission. She asked for clarity pertaining to a submission which was made by Mr S Matiase (EFF) on 7 September.  

Ms S Van Schalkwyk (ANC) said that she would not venture into the details of the submissions because there would be an appropriate time to deal with that. She wanted to firstly congratulate the team led by the Secretary but also the Members led by the Chairperson who endured long hours on the roads. These roads were often in unfavourable conditions. There were late nights and early mornings and travels across the length and breadth of the country. This clearly showed the calibre of Members and staff within the Committee. Members and staff were not only committed bring about change but also strengthening democracy through the legislative processes. There were issues that she would raise at another engagement when going deeper into matters.

She “totally agreed” with the approach of the Committee’s staff in dealing with certain issues and certain inputs especially with regards to the many repetitions which had been submitted. She remarked, “I don’t think there’s another way to deal with it”. Although individuals raised their views and these views may be seen as their own, there was a clear indication that many individuals raised views which represented the views of certain organisations. “We cannot look the other way when looking at those kind of issues”. She appreciated the channeling of the issues that were relevant to other portfolio committees and also to other spheres of government (i.e. local government sphere). Members were representatives of Parliament and society at large used the platform of public hearings to ventilate their general concerns. The public saw these hearings as an opportunity and made use of it. It was important and appropriate that matters were not ignored but instead channeled to the correct portfolio committees or legislative bodies. When the Committee looked at what had been submitted and the many submissions that were dropped, this had assisted the Committee. The correct approach was used in this process to assist the Committee in moving forward and to give effect to the Bill. The Bill sought to establish an administrative system and to ensure that the effect was brought about. The process followed by the team clarified that the Bill was not about land reform or any other issues that had been brought to the forefront.

Ms M Hicklin (DA) echoed the sentiments expressed by Members. She wanted to “raise a proverbial glass of congratulations to our phenomenal team”. The team had driven this process. While Members of the Committee traveled the lengths and the breadths of the country listening to all the submissions, the support team had to decipher and interpret all the submissions received. The support team could not be thanked enough “for doing such an incredible job in dealing with everything”.

She supported what Ms Graham had said regarding the personal view and organisational view matter. When one makes a submission which says “I concur with a viewpoint made by X political party” this would still be one’s individual belief - the individual belief is not negated.

In respect of the property clause, many people were worried about the meaning of the word “property” in the Expropriation Bill. This concern cannot merely be dismissed. “We are saying this Expropriation Bill does not deal with property”. The Bill however, “very much does deal with property”. It deals with the removal of property through expropriation without compensation and the word “property” was ill-defined. “We need to look at what property actually means in relation to the Expropriation Bill”. This needed to be looked at very carefully because it was a major concern which applied to many people who participated in the public hearings. The issues cannot be lumped together by saying, “that is not the focus of this Bill”. In exactly the same way so many people got the idea that the Expropriation Bill would address the land reform question.

Ms Hicklin said she had not had time to go through all the raw data and asked with permission from the Chairperson to make submissions at a later date. The Committee could not walk away from the fact that so many people believed that the Bill would give access to land purely on the basis of it being passed by Parliament. People believe that the Bill meant, “I am going to get a piece of land whether it has got a house on or not, it is going to give me a piece of land that I can call my own”. This was not the purpose of the Bill. The Committee needed to be very clear on that. This therefore needed to be taken into account in the deliberations.

The Committee had the most phenomenal group of colleagues who had dedicated themselves in going from “point ‘a’ to point ‘z’ right through this country”. The team listened to the views of people who needed to express themselves. “We really were taking Parliament to the people and listening to the views of the people across the length and breadth of this country”. She was proud to be a Member of the Committee and proud to be a Member of a Parliament who actually listened to South Africans. She thanked everyone who had put themselves out there. The task at times was very challenging.

The Chairperson said that she would have loved for all the other Members to comment. The questions asked by those Members who had spoken surrounded issues of clarification. Mr Denyssen and Ms Matinise were given an opportunity to respond.

Responses   

Mr Denyssen said that he first wanted to deal with the matter raised by Ms Graham. He wanted to specifically deal with the matter of personal views vs. organisational views. The team tried very hard to deal with a data set which was unexpectedly huge. Not only was the size of the data set was huge but also the team’s task of ensuring that everyone’s views found their way into effecting the Bill. That was the first and foremost task. The team wanted to identify clauses which were problematic to people. There was nothing they [the staff] could do about it if the feature within the email submissions was that of an organisation’s bulk emails. Individuals were allowed to align themselves with organizations; there was no problem with that. The problem was that through the bulk emails individuals used, the categories provided in those emails were narrow. These bulk emails made it nearly impossible in some cases to add the views as individual submissions. Individual submissions were not “thrown away”.

Similarly, defining ‘onteiening’ as the process of taking something away from someone was correctly therefore defined as expropriation. There was no assigning of any meaning different to what those words were saying.

He wanted to further deal with a few of the Word Documents of the DA as well as the Premier of the Western Cape and the Western Cape Property Development Forum. The aforementioned organisations submitted PDF and Word Documents and when the team analysed that these were captured in the Excel document, the mother document was so massive that some of those documents were very difficult to access. The support team’s focus was less on “how many ‘yes’ and how many ‘no’s” in the email submissions and the team had been open about this. The objective was to ensure that problematic clauses were identified from the massive data set. The Western Cape Property Development Forum, the DA and the Western Cape Premier’s input primarily focused on the importance of the term ‘property’ to be defined properly within the Bill. These inputs focused quite a lot on the process of expropriation and the need for a stable property market. This was so because there was an underlying perception in those submissions that the [Expropriation] Bill would disturb the private property market to such a degree that the local economy would suffer. In the case of the Western Cape, there were concerns that the Bill would destabilise the property market from which the Cape Town Metro drew its massive income (from through property rates, water and electricity charges). These organisations made useful inputs on the matter of defining ‘property’.

These organisations also complained about clause 12(3) which read that “it may be just and equitable for no compensation to be paid where land is expropriated in the public interest” having regard to certain circumstances. “Even if you see something which you expected to feature is not strongly featured in the presentation”, Members must rest assured that these would all be responded to by the Office of the Chief State Law Adviser, Parliament’s legal advisor and DPWI. Ms Matinise would deal with the Mpumalanga and Limpopo errors; these errors may have possibly been due to tired eyes.

Ms Matinise confirmed that the errors were due to “tired eyes”. The support team had been working through volumes of information of which they had to make sense of. She apologised for the errors. The amendments proposed by Ms Graham would be made. Ms Graham was encouraged to send her comments via email (in writing). This was to ensure that everything was captured as the Member had proposed. The report presented to the Committee in this meeting was not the final report on the Expropriation Bill. Today’s report would not be going directly to Parliament for deliberation and adoption. The report before the Committee merely stated the inputs that had been received in all three phases of public participation. The purpose of the report was so that legal advisors from Parliament, the DPWI and the Office of the State Law Advisor were able to pick up on issues which the public had raised and changes proposed in terms of the objects of the Bill.

Members would be briefed next week on the process that would be taken in ensuring that the Bill accurately depicted the inputs that had been given.

The Expropriation Bill was a very contentious Bill. Political parties showed a great interest in the objects of the Bill. The team realised that in many provinces the “same script” was being discovered. For example the EFF in Limpopo and Gauteng stated that “they didn’t understand why Parliament wasted money on the Bill”. The EFF said that Parliament should have waited for the amendment of section 25 of the Constitution before commencing with the E Bill. The aforementioned represented the substance of their [EFF] submissions. This trend was seen in Gauteng right through to Limpopo. In other provinces, an individual would align themselves with what the EFF said however they would submit some other information in addition to the alignment and these instances were recorded as such. Members should not fear that some of the individual inputs had been captured under a certain political party. The [public participation] report was a reflection of what had transpired in the public hearings. The team did not want to repeat the same things and provide an overload of information. For ease of reference, the capturing of data was done in that certain fashion especially for the provinces that were scripted. The submissions of the EFF had not been excluded from the oral submissions. She confirmed that it was Mr Matiase (EFF) who had indeed done an oral presentation on 7 September (in response to Ms Siwisa). This input had been thoroughly captured.

She thanked the Members for all the comments and compliments that had been given to the team. This project was not an easy task to execute given the fact that it was the first of its kind in this Portfolio Committee. The team thanked the Committee for their cooperation because if it were not for that it would have been impossible for the team to undertake the task at hand. Information and views relating to the amendment of the property clause had been captured in earlier bulk reports the team had sent to Members. Members were welcome to advise the team on any facts that had not been thoroughly captured in the reports. This was to ensure that the deliberations were thorough and concise for those colleagues who would be presenting to the Committee next week.

Ms L Mjobo (ANC) said she did not have any questions but instead wanted to join other Members in congratulating the team for a job well done.

The Chairperson wanted to know what the next steps would be following the briefing today. It was her understanding that today’s meeting was not for the Committee to discuss the [public participation] report. The team had merely shown the Committee what had been captured, comments made and matters for clarification. What is the next step? Will the Committee discuss this report and then take it to Parliament? There was a process to follow. Whatever comments Members submit to Ms Matinise after the meeting should not include new additions. The time for introducing new points had lapsed. Submissions from Members will only be accepted – not from other external bodies or persons. The opportunity was for Members to address inconsistencies/exclusions/amendments covering topics already present in the report. The Chairperson asked for an outline of what would follow.

Mr Denyssen, in the Zoom chat, asked Ms Matinise to give a deadline for additions and comments that should go to the DPWI, OCSLA and the parliamentary legal team. He agreed with the Chairperson that Members could not bring any new submissions. This was to ensure that no new clauses were highlighted.

Ms Matinise said that in terms of NA Rule 286(6), today the Committee had been deliberating on the public inputs received as the public participation phase had been finalised. The next stage involved receiving feedback from the legal advisors of Parliament, DPWI and the Office of the State Law Advisor. The inputs from Members following this meeting should thus be received by no later than Friday (19 September) to enable the team to perform due diligence on the reports. The Committee would thereafter formally have to consider the Bill clause-by-clause. This process would probably be done during the first term of 2022. The Committee would then deliberate and establish whether all ground had been covered. The main report of the Expropriation Bill would then be considered and adopted. A single report therefore needed to be finalised which would ultimately be adopted. After this adoption, the final version of the Expropriation Bill would be adopted. Next week’s presentation would mainly be a culmination of how the final version of the Bill would look after the inputs of the public are factored in.

The Chairperson thanked Ms Matinise for the clear explanation on the procedure to be followed. Members were invited to respond and make comments on the process that would be followed by the Committee. The meeting of today was not intended for Members to deliberate the Bill clause-by-clause. This meeting was for Members to consider whether the process of the public hearings, oral submissions and written submissions had met their expectations. Was it not for the time constraints along with the local government elections, the Committee might have completed all these processes. The Bill would have been in Parliament right now for discussion. The support team had suggested that the most suitable time for the Committee to engage in deliberations (concerning the Expropriation Bill) would be the first quarter of 2022. Members were invited to comment on this suggestion.

Ms Graham thanked the team for the clarification and confirmed that she would submit her queries in writing to Ms Matinise. She urged that her criticism was aimed at making sure that the Committee’s report was a true reflection. She acknowledged the fact that it may have been difficult to capture all the information received. She supported the proposal to have the clause-by-clause deliberations done in the first quarter of 2022. She looked forward to the feedback in the next meeting and the debate that would follow next year. Having the clause-by-clause deliberations in 2022 would give the Committee sufficient time to engage with the material and to adequately prepare.

Ms Hicklin agreed. She would send the additional notes of clarity - these notes were not criticisms.

Ms Schalkwyk was also in agreement.  

The Chairperson urged the Committee to appreciate the progress they had made thus far with the Expropriation Bill. The journey had not been easy but it was a necessary one. The time for oral submissions had been extended when it was discovered that the Committee’s times coincided with the December (2020) holidays. Positive results were seen due to this extension. The Covid-19 pandemic had at many times limited the Committee. This caused delays when there would be a rise in the COVID-19 outbreaks within certain provinces and Members could not travel there. Members nonetheless found a way to ensure that the Bill was tabled for all South Africans to participate in the public hearings.

The Chairperson showed appreciation for the work done and for all who had participated in the public hearings. The Expropriation Bill was a very crucial Bill whether supported or not. The reasons for or against the Bill were important to consider. Members were encouraged to read all the documents pertaining to the Bill; they had ample time to do so. This was to ensure that Members familiarised themselves so that when the legal aspects of the Bill are dealt with, everyone would be on par. The Committee needed to take this Bill to Parliament. The Chairperson thanked Members for their participation. South Africans were watching the Committee to see where it would take the Expropriation Bill. The Bill would be dealt with in 2022. The Committee would deal with its other issues in its next meeting. Mr Denyssen and Ms Matinise, along with the support team, were thanked for the support always provided to the Committee.  

The meeting was adjourned