Constitution 18th Amendment Bill: proposed amendments; Public submissions report

Meeting report

The Chairperson welcomed members of the Committee and members of the media. The apology of Mr W Thring (ACDP) was noted.

The Chairperson asked if any party was not represented and whether apologies from the EFF were received.

The Committee Secretary replied that no apologies were received from EFF members and confirmed that one EFF member briefly joined the previous day.

The Chairperson placed two issues on record. Firstly, the purpose of the meeting was to receive and consider the report that was prepared by the Administration based on submissions received during July until 13 August 2021. Secondly, the Management Committee (MANCO) took the initiative, based on time constraints, to produce a revised or Draft Bill informed by submissions received. The report would be discussed in conjunction with the Draft Bill. Members were advised to report back to political party principals for further mandates with regards to the Draft Bill.

Opening remarks

The Chairperson, in his opening statement, sought to refresh the memories of the members with regard to receiving mandates from political party principals. The constitution was based on the doctrine of the separation of powers between Parliament, the Executive and the Judiciary. Parliament adopts the rules that regulates the exercise of its powers with due regard to the letter and spirit of the Constitution and the rule of law. It was clear that the Constitution was a creature of the People and that the People were not creatures of the Constitution. Hence the Constitution allowed Parliament to amend any section subject to conditions it sets out, for example, section 25 requires a two-thirds majority of members of the National Assembly. This reflected both the representative and participatory nature of our constitutional democracy. This also meant that the People had the final say in the amendment of any section of the Constitution and not members of the National Assembly, regardless of ideological and party-political positions.

The Constitution made public participation a mandatory requirement and where Parliament failed to conduct a meaningful public participation process, the Constitutional Court would invalidate the law passed by the National Assembly. Therefore, the People were the final arbiter when parliamentarians did not agree. Political parties may not collapse a legislative process due to fear of being denied a two-thirds majority. This ad hoc Committee did not need a two-thirds majority to make a decision and should not collapse because one of the parties did not cooperate. The People would judge political parties who acted in self-interest and not in the best interest of the People of South Africa.

The Programming Committee had good reason to grant extension by two weeks. Unfortunately, it was done without the benefit of input from the written submissions report but this should not prejudice the process. The report showed that political parties in this Committee had not been loyal to their own decisions. The original mandate was to review all subsections of section 25. The limitation of a number of subsections came from the original compromised Bill which the Committee sought to cure by requesting a three-week extension to consider the revised Bill. Subsection 25(7) and the status of communal land were not addressed but the submissions showed that these matters must be considered to address the injustices of the past, dating back to the 1800s. The Chairperson submitted that the principle of public participatory democracy would be violated if the outcome of the public participation process was disregarded. The rules of Parliament took precedent over ideological or self-interest of political parties. Hence the Parliamentary Legal Services (PLS) produced the revised Bill informed by the report. The report to the House must show that the Committee understood and embraced the supremacy of the Constitution, the law and the rules of Parliament. Parliamentarians were obliged to apply the Constitution without fear from party political party principals and must conduct the business of the Committee in terms of the rules of Parliament.

The Chairperson expressed his trust that the opening remarks would empower members in their consideration of the two documents under discussion.

Discussion
Prof A Lotriet (DA) said it was clear from the Chairperson’s opening statement that the Committee was being treated with utter contempt. It was not regular and procedural for MANCO to take decisions. Nothing prevented the Chairperson from calling a committee meeting. It was her opinion that there was no intention to involve the Committee and that this meeting would not have taken place if she did not make enquiries. She took serious umbrage that the Chairperson was accusing political parties of objecting to procedures and felt that the Committee had been side lined. There was more than enough time to review the submissions but the Committee was cherry-picking which made the process procedurally and substantially irregular.

The Chairperson replied that the revised Bill was compiled by the PLS on instruction of MANCO and informed by time constraints. MANCO must provide leadership in compliance to the rules of Parliament. The revised Bill was not binding but was meant to fast track the process. Members had the liberty, based on discussions in this meeting, to include issues should it not form part of the report. He was not accusing political parties but merely reminding them to not act in self-interest. The process depended on the will of the people of South Africa and party ideology should be put aside. He disagreed that the Committee could have met earlier and that the meeting was as a result of Professor Lotriet’s interaction with the Administration. This was the first opportunity to convene because the report and the revised Bill was now available. He appealed to members not to usurp the work of the Administration. It would have been humanly impossible for members to work through the 148 000 submissions. There was nothing irregular about the Administration sifting through the submissions and preparing a report.

Dr C Mulder (FF+) remarked that he had huge respect for the Chairperson as a very senior member of Parliament. He placed on record that from the onset, the Chairperson made it clear that he wanted to steer the Committee to an agreeable solution. The Chairperson made the point that the Constitution was a creature of the People but the concept of the People was complicated. He accepted that the Committee could not meet earlier as the revised Bill was only completed the day before this meeting but said it was up to the Committee to discuss the Bill and the submissions before asking the legal team to draft a revised Bill. The Committee could not declare that it had a public participation process and then rely on Legal Services to cherry-pick from the submissions for the Bill. In terms of section 74 of the Constitution, a bill to amend the Constitution may be passed with a majority of at least 75%. The Chairperson was suggesting that section 74 was potentially problematic. A change in the mechanism to amend the two-thirds requirement, would need a 75% majority. In terms of our current dispensation and the Constitution, the people were represented by political parties. Dr Mulder said the Committee was going in the wrong direction and proposed that the report be taken to the House for a decision.

The Chairperson agreed on the philosophical questions with Dr Mulder. The perceived cherry-picking was informed by previous experience of the process and that it did not prejudice the Committee. There was no intention to change the mechanism about the two-thirds majority. He agreed that the Committee proceed with the process, produce a report and refer the report to the House for a decision. The current proceedings were important for members to read and adopt the report as a working document and to review the revised Bill. Members had the opportunity to make suggestions but it was important to seek further mandate from political party principals to prevent problems similar to what happened with section 25(7). This was the final opportunity to get further mandates. As reported in the Zondo Commission, Parliament was an independent institution and could not act on instruction. 

Ms K Mahlatsi (ANC) confirmed that in terms of the general consensus reached in the meeting the previous day, the Committee would in this meeting receive a presentation, based on input from the public participation process, from the PLS. Thereafter members would decide whether there was need for another draft and whether mandates for a third round were necessary. She failed to understand why issues were being discussed that had not yet been deliberated on. She proposed that further discussion should take place after the presentation was made.

The Chairperson said Ms Mahlatsi accurately captured the decisions taken in the meeting of the previous day. He reminded members that the Committee was bound by the Constitution and Parliamentary Rules.

Adv G Breytenbach (DA) aligned herself with Professor Lotriet and Dr Mulder. She stated that she held the Chairperson in the highest regard but differed from his summary of events. In her opinion, something was procedurally seriously amiss. The Committee was not involved in the sifting of public submissions. She disagreed that it was an impossible task and said members should not allow the Administration to do their work but make an effort to do the work themselves. She was happy to go through the submission before next week’s meeting and found it problematic that either the Chairperson or MANCO made the decision on behalf of the Committee.

The Chairperson replied that the Committee needed to be loyal to decisions that was made in the meeting the previous day and that he previously explained that the procedures were not usurping the powers of the Committee.

Ms A Steyn (DA) confirmed that there was agreement to deal with the report in this meeting but members needed to understand how the third draft of the Bill landed on the table. People were raising questions based on this third draft that was already in the public domain. It was important for the Committee to understand how this process unfolded. Never before had the Committee received a new draft before it had been discussed.

The Chairperson replied that he had never seen the Committee draft a bill. Bills were drafted by the PLS and presented to the Committee to approve or reject. The work of Parliament was done in public and not in secret. The purpose was not to adopt the Bill but to facilitate discussions due to time constraints.

Dr M Gondwe (DA) shared the Chairperson’s sentiments to not belabour the point but reminded members that the discussion involved amending the Constitution and not an ordinary piece of legislation. The people had serious apprehension about the amendment. She failed to understand why the process was being rushed and was concerned that MANCO took the decision without the need to make the process participatory.

The Chairperson said members should be able to distinguish between technical and substantive issues. Management instructed the PLS to prepare a report for discussion and the Committee had not been prejudiced by this procedure.

Ms R Lesoma (ANC) fully supported the proposal of Ms Mahlatsi and the Chairperson. She said even the first draft was compiled by Legal Services and at the time, the Committee was comfortable with the process. She proposed that the Chairperson should proceed with the items on the agenda.

The Chairperson remarked that Ms Lesoma clarified the point that the PLS had been drafting Bills from the onset and MANCO had been following the same procedure as in the past. Although his opening remarks were not on the agenda, he needed to place certain matters on record.

Presentation – Report on written submissions

Dr Thulisile Ganyaza-Twalo, Unit Manager, Parliament, explained that the purpose of the report was to highlight the views of the public on the revised Bill which had been advertised in July 2021. The Bill focused on three issues, i.e. national legislation providing for circumstances of nil compensation, the safeguarding of land as a common heritage for future generations and fostering of conditions to enable state custodianship of certain land and access to land on an equitable basis. A total of 148 891 submissions were received by 13 August 2021.

Matters emanating from the submissions:

Preamble

It is misleading. 90% of land claimants opted for financial rewards. No evidence that the amendment of s25 will ensure access to land and empower the majority of South Africans. It is inappropriate to refer to “productive participants”. It Implies reference to agricultural land because that is not the underlying objective (correcting historical imbalances around land ownership). Further, it Implies restriction on access to land – only those productive can access land.

To remove the restriction linked to farming and to include all people, the addition of the wording ’other land reforms’ was proposed.

State Custodianship

Clear definition of “State Custodianship” with clear roles and responsibilities is required. There is a right to private property ownership. People will be affected negatively and this must be re-considered. People will be subjected to eternal leasing of land. Economic losses as a result of expropriation without compensation. S25(5) is an empowering provision. State custodianship severely limits the discretion in this clause. It restricts Government to single model of State ownership to achieve land reform. It runs the risk of limiting the State with regards to policy changes to achieve land redistribution

The wording ‘as a transitional measure’ was proposed to address the concerns raised.

Nil Compensation
Nil compensation as an absolute requirement would unintentionally erode the role of the court. Changing the word ‘is’ to ‘may be’ in subsection (3A) would provide for judicial oversight.

Expropriation without Compensation
Concerns were raised about land grabs, damage to the economy, undermining of international law and fundamental human rights enshrined in the Constitution. The public proposed that government use undeveloped land for economic development.

Comments against the Bill
The amendments posed a risk to individual civil liberties and human rights. Sustainable and equitable food security could be jeopardised. In the absence of secure land and property rights, urban development, environmental protection and women empowerment were at risk; and the amendments exceeded the recommendations of by the Constitutional Review Committee.

Comments in support of the Bill
Redress of 1913 land dispossession and consideration of land claims before 1913 in compliance with the United Nations Declaration for Indigenous and Tribal People and Customary law;
Transfer of all land under traditional leadership to owners with full title deeds;
Redistribution of land would positively impact the overall economy; and
Redress was consistent with democratic and Christian principles.

(See Presentation)

Discussion

The Chairperson said members had the opportunity to express themselves on the report and to reflect on the revised Bill.

Prof Lotriet thanked Dr Ganyaza-Twalo for the presentation. From her reading, the report was a fair reflection of the submissions. She was concerned that issues included in the draft Bill had not been reflected in the presentation.

The Chairperson reminded Prof Lotriet to only express herself on matters in the report at this stage.

Dr Mulder thanked Dr Ganyaza-Twalo for presenting the report and noted that it was only an extract as the specific inputs received were more comprehensive. He requested that a copy of the presentation be made available to members of the Committee.

Mr N Masipa (DA) thanked Dr Thuli and sought clarity on whether submissions for the first and second drafts were covered in the third draft.

The Chairperson replied that the report was based on the 148 000 submissions received during July and 13 August 2021. The third draft would have been informed by the report. In this meeting, the Committee was dealing with the second revised Bill that was taken to the public and needed to determine whether the report was a fair reflection of the submissions.

Mr Masipa observed that not all the submissions received, were accounted for in the report.

The Chairperson said Dr Ganyaza-Twalo explained that some submissions were irrelevant to the process. The Administration and the lawyers had the right to evaluate the submissions. Sifting through the submissions was not a function of the Committee.

Ms Lesoma appreciated the work done by the Administration with the guidance of the Chairperson. The presentation was a fair reflection of the categorising of the submissions by the Administration. Instead of proposing a rider and in the spirit of consistency, she asked whether the Committee could be given all of the submissions to satisfy the members and to make suggestions so that it became their own work. Borrowing from previous experience, the Committee should be given a roadmap in the meeting scheduled for early next week.

The Chairperson stated that both Prof Lotriet, Dr Mulder as well as Ms Lesoma indicated that the report was a fair reflection of the submissions. In that light, the Chairperson implored members to accept that the report was a working document and not to spend any more time on reopening the debate.

Ms Lesoma accepted the point made by the other members and aligned herself with the conclusion that the report fairly reflected the submissions from the public.

The Chairperson remarked that his guidance was based on procedural and not on substantive matters. There was sufficient agreement that the report had been a fair reflection of the submissions.

Ms Steyn said she wanted to link the comment on ‘fair reflection’ to the issue raised by Mr Masipa. The Chairperson mentioned earlier that some submissions were deemed irrelevant. It was her view that the Committee could not express an opinion on the submissions if the due process had not been followed. She requested that the Secretariat provide a written submission regarding the submissions that were of a repetitive nature.

The Chairperson replied that the staff, who took time to sift through the submissions, were highly qualified. The Committee would need more than two weeks to repeat the process. He asked that the position of the Committee about the report being a fair reflection should be accepted.

Dr Gondwe agreed with Prof Lotriet that the report was a fair reflection but maintained that procedurally, there had been missteps and the Committee should have followed due process.

The Chairperson said the position about procedural missteps was not based on the history of the work of the Committee. MANCO instructed the PLS to determine whether the report had an impact on the Bill. Based on the decision that the Bill had been impacted, a third Bill was produced taking into account time constraints. There was no intention to impose the Bill but merely to fast track the work of the Committee. The revised Bill was an attempt to empower members when they consult with party political party principals. The Chairperson proposed that the Committee meet on Tuesday, 31 August 2021, to prepare the report for consideration by the House with the understanding that consultations would be completed.

Mr S Gumede (ANC) requested Legal Services to clarify the requirements of the Bill and to explain the reasons for the third Bill. He asked that the report be circulated and for members to be given the submissions.

The Chairperson agreed with the interventions requested by Mr Gumede for the PLS to clarify the requirements if the Bill was to be accepted and for the report to be circulated for members to digest and internalise the content. He commented that no further discussions of the report was needed. He took note that members wanted to see all the submissions but warned that it should not stop the process.

Mr Xaba sought clarity on what basis the consultations should take place since the third Bill had not been presented in this meeting.

The Chairperson replied that the Bill was introduced to aid consultations. He acknowledged that it was a serious omission on his part as members could not claim that the Bill emanated from this meeting unless it was formally presented. In terms of the agenda, both the report and the draft Bill would be presented.

Ms Steyn agreed with Mr Xaba but she was concerned about some of the submissions that were classified as irrelevant since members had not seen the documents. She found the process problematic and wanted the PLS to explain the process that was followed.

The Chairperson said Ms Steyn was referring to issues that had already been discussed. He submitted that the third draft of the Bill would be officially presented as part of the record and to aid members in their consultations.

Dr Mulder said the agenda should not trump parliamentary procedures. He suggested that the document produced by the Administration on instruction of MANCO should be regarded as a proposal and not be referred to as a third draft of the Bill. He explained that the second draft was presented, voted on and published for comment. The second draft could not just disappear and be replaced by a third draft. The questions about the process would become relevant if the same steps were not followed.

The Chairperson agreed that the document should be referred to as a proposal which needed to be officially presented. The document would not have status for consultation unless it was presented.

Prof Lotriet enquired about the specifications and requirements for the proposal that the PLS received from MANCO.

The Chairperson said there was no brief but the PLS was required to produce a proposal accompanying the report on the submissions.

Presentation – Third draft of the Constitution Eighteenth Amendment Bill

Adv Charmaine van der Merwe, Senior Legal Advisor, Parliament’s Constitutional and Legal Services Office (also referred to as PLS), started by providing some context to the existence of the document. The PLS was requested by MANCO to compile a document based on the report which was not an easy task. Further guidance from the Committee was needed on the wording in the proposal.

The public submitted several proposals for amendments. Some proposals would fit better in national legislation and some proposals would not result in changes. In some instances, there were disagreements with regard to legal arguments. The Committee could exercise the following three options, e.g. to make no amendments; to accept only non-material amendments by adopting a tweaked Bill; and to adopt material amendments.

The two material amendments related to the amendment to subsection (7) of section 25 to provide for redress in terms land dispossession before 1913 and the exclusion of communal land from expropriation where compensation is nil. Amendment of the 1913 date would constitute a substantial amendment to the Bill which require permission from the House and would have to be published and sent to provincial legislatures. In addition, it must be referred to the National House of Traditional and Khoi-San Leaders whereby a return period of 60 days applied.

(See Presentation)

Discussion
The Chairperson thanked Adv van der Merwe for the good work and guiding the Committee on the available options. He agreed that amendments could be consequential therefore members needed to consult their political party principals and apply their minds to the issues raised. The Chairperson commented on sacred places in the Free State and Venda that were of religious significance in African traditional culture but where Western church buildings were erected or which had been used for tourism development. This was a complex matter and should form part of the discussions. He stated that Legal Services did a sterling job but they needed instruction on certain areas. He accepted Mr Xaba’s proposal to engage with the political party principals so that informed instructions could be given to the PLS in the meeting scheduled for Wednesday, 1 September 2021. 

Ms Lesoma aligned herself with the conclusion of the Chairperson and thanked him for the guidance on the way forward. She suggested that the meeting on Wednesday take place in the afternoon to allow time for consultations to be completed in the morning.

Mr Gumede sought clarity on whether the meeting would take place next Tuesday or Wednesday. He withdrew his earlier request for the requirements of the Bill to be provided since the matter had been clarified by the presentation by Advocate van der Merwe.

The Chairperson said Legal Services should still comply with Mr Gumede’s request.

Mr Xaba said the decision to publish the Bill was for the public to give input and to enrich the outcome. He was concerned that this was becoming a repetitive process as new amendments were proposed after each publication. The process should be contextualised and not being viewed literally. He was of the view that the Committee was stretching the Constitutional judgment too far and public participation should stop at some point.

The Chairperson replied that the Committee was obliged to send the revised Bill to the House which raised material issues. For this reason, the proposal included the matters of communal land and section 7. It would send the message that the Committee was disregarding the rules of the National Assembly if these matters were not included in the proposal. He agreed that the process should not be endless but it was better to allow for 60 more days than to waste the hard work of the past two years.

The Chairperson thanked everyone for a constructive meeting, particularly to the Administration and Legal Services for the sterling work and for carrying the mandate from the Committee. The opportunity to consult would last until Wednesday morning and the meeting would commence at 14:00 on Wednesday, 1 September 2021.

The meeting was adjourned.