The African National Congress (ANC) is determined to use Parliament as a mere rubber stamp for its December 2017 decision to amend Section 25 of the Constitution (the property clause) to allow expropriation without compensation (EWC). And Parliament continues to go along with this – and to pretend that it is doing a proper job on the most important legislative change ever to come before it since 1994.
The ANC’s stratagem has always been to divide the Section 25 amendment process into three stages. In the first, it would get the Constitutional Review Committee (CRC), a joint committee of both Houses of Parliament, to recommend a constitutional amendment. This would pave the way for the second stage, in which a parliamentary ad hoc committee would draw up a bill with the necessary wording. This would usher in the third stage, in which the National Assembly and National Council of Provinces would endorse the ad hoc committee’s draft bill.
However, when the CRC began its work in 2018, it was soon overwhelmed by the high number of written submissions it received. Some 630 000 written submissions were sent in, of which some 75% were opposed to an EWC constitutional amendment (as an external agency brought in to analyse these documents told the CRC).
The MPs serving on the CRC had a clear constitutional obligation to read and consider all these submissions for themselves, but lacked the capacity to do so. Even after about 180 000 supposedly ‘duplicate’ or defective submissions were excluded – and some 449 500 ‘valid’ submissions then remained – MPs on the CRC would have needed nearly 940 days to give even one minute’s consideration to each of these documents.
The CRC’s solution was to sidestep its constitutional obligations. Instead of itself examining all the valid submissions – 65% of which were opposed to EWC, according to the same external agency – the CRC looked at a sample of around 400 submissions and claimed this was enough.
This ploy enabled the CRC to brush aside the fact that at least 65% of the written submissions were opposed to EWC. So too were some 75% of the oral presentations made in Parliament by Agri SA, the Banking Association of South Africa, the Centre for Development and Enterprise, the IRR, Nedbank, and many other organisations.
More efficient land reform
This high volume of evidence-based documentation and testimony should have far outweighed the brief comments of the roughly 2 500 people who spoke, for around three minutes each, at the provincial public hearings. Many of these people also wanted a more efficient land reform process, rather than a constitutional amendment to allow EWC.
Having steadfastly ignored almost all the arguments and evidence put before it, the CRC recommended in November 2018 that Section 25 should indeed be amended to allow EWC. Parliament swiftly accepted this recommendation and appointed an ad hoc committee to begin drafting the necessary text.
According to committee chairman, Dr Mathole Motshekga, the committee’s sole task is to consider the wording to be used in amending Section 25. It is not its job to assess whether a constitutional amendment is necessary, as this issue has already been decided by the CRC.
Given the CRC’s failures on public consultation, AfriForum tried in December 2018 to obtain an urgent interim interdict preventing Parliament from accepting and acting on the CRC’s flawed recommendation. However, its application was rejected by the high court in Cape Town on the basis, among other things, that the matter was not sufficiently urgent to warrant this intervention.
Having lost at that critical juncture, AfriForum returned to the high court last week for the hearing of its main application. Here, it argued that the procedural flaws in the CRC’s work were so grave that its pro-EWC recommendation should be set aside.
‘Of no consequence’
To which both Parliament and the ad hoc committee responded that AfriForum’s application had been overtaken by events and was now moot. In his affidavit opposing the AfriForum court challenge, Motshekga added that the process of amending Section 25 had ‘moved far beyond the factual matrix’ AfriForum was seeking to raise. This ‘rendered the relief sought by the [organisation] of no consequence’.
If the high court accepts this argument (its ruling is still awaited), the major flaws in the CRC’s work will be brushed aside – and South Africans will again be deprived of a swift judicial remedy against the defects in the EWC legislative process.
The ad hoc committee has also shown a disdain for proper public consultation on the Draft Constitution Eighteenth Amendment Bill (the draft bill) it has drawn up. This draft bill allows nil compensation to be paid – for both land ‘and the improvements thereon’ – in circumstances it declines to specify. Instead, these circumstances will be decided by Parliament from time to time, through whatever ordinary legislation it may in future resolve to enact.
The ad hoc committee gazetted this draft bill for public comment early in December 2019, with a deadline of 31 January 2020 for written submissions to be sent in. But most of this period fell over the festive season when most people were away from work and home and could not be expected to focus on the draft bill. It was only under considerable public pressure that the committee agreed at the last minute to extend its initial deadline from 31 January 2020 to the end of the following month.
It remains uncertain how many written submissions were sent in by 29February 2020, for the committee’s work has been on hold since the start of the Covid-19 lockdown in March this year and has yet to resume. Provincial public hearings on the draft bill must also be completed, while oral presentations in Parliament have yet to be heard and considered.
Over-hasty approach
The ad hoc committee nevertheless plans to decide on the wording of the draft bill either by the end of November, when Parliament is scheduled to go into recess, or by the end of December, when the committee’s current mandate will expire. Again, its over-hasty approach is at odds with the accountability and proper public consultation the Constitution requires.
Motshekga is wrong, moreover, to argue that the CRC defects are now moot. These defects go to the very root of the parliamentary process being used in amending Section 25 and cannot simply be ignored.
The CRC defects have compromised the entire legislative process – and the Constitutional Court will have to take account of this when the constitutionality of the bill amending Section 25 is finally brought before it. The IRR, for one, will seek to ensure that this is done.
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