Draft Constitution Eighteenth Amendment: Legal Opinion & Party Proposals

Meeting report

Opening Remarks
The Chairperson said that it was a crucial time as the Committee is expected to conclude its work. All of the political parties have been afforded an opportunity to hold bilaterals and he trusted that this would contribute to the discussions. The focus of this meeting will be on the text of the bill and to enable the Committee to compile a report for submission to the House. The Committee will not talk about politics on any issue but they will talk about formulations of the amendment Bill which is what their mandate requires. He received a letter from the Chair of Chairs directing the Committee to hear the opinion of the Parliamentary Legal Services. Also, serious concern was expressed about what happened in the previous meeting, where allegations were made against the Parliamentary Legal Services. He indicated that the Committee will have a briefing by the Parliamentary Legal Services and stated that if one puts 100 lawyers under one roof then one is likely to get 100 opinions. Legal opinions are not binding to those who requested it but they are given to advise. The person who is advised is free to agree or disagree without casting aspersions on the people that provide the legal opinion.

This issue of allegations was raised in the National Assembly Programming Committee, and the view was that if anyone has allegations they must bring a substantive application but the meeting today is not to receive substantive documents about allegations, the Committee’s mandate is to deal with the text. He appealed that the Committee listen to the legal opinion, engage with the text and seek to reach finality on the matters. The failure of this Committee to produce a satisfactory report, has serious consequences for this country. Already, there is unrest and land invasions all over because people are impatient and they want access to land. There is the triple challenge of poverty, unemployment and inequality. All of these challenges can only be addressed meaningfully and successfully if the land question is resolved. Failure to resolve the land question will be tantamount to planting a time bomb in one’s own house, which will bring the whole house down. The Committee has a great responsibility to deal with this national question. This matter is not a matter between the ANC and the DA, or the DA against the EFF or IFP against FF+. The Committee should put aside their political party affiliations and put the best interest of all South Africans, both black and white, high on the agenda. He expressed that all of the Committee members represent the people of South Africa and urged that they be adequate to their task and deliver to the needs of this country and its people.
He welcomed the legal services team and apologised for what had happened in the previous meeting. He assured them of his support and that he has no doubt that they have the support from majority of the Committee. This is a political platform where one can expect anything but this Committee will protect the legal team as they value their services.

Presentation: Legal Opinion on Amending the current draft of the 18th Constitutional Amendment Bill
Ms Telana Halley-Starkey, Parliamentary Legal Advisor: Office of Constitutional and Legal Services, Parliament of South Africa, presented the following:

Legal Question - whether the Committee may make further amendments to the Bill that had been advertised for public comment in the Government Gazette on 13 December 2019.

Answer – Yes, the Committee may make amendments to the draft Bill prior to introduction to the National Assembly, regardless of the fact that the draft was published.
The reasoning behind this is based on the National Assembly Rules. (i.e., the rules on committee Bills and on Constitutional Amendment Bills - see document attached).

Consultation
The process in amending the Bill will involve consultation. The recommended process on subsequent amendments that materially or substantively change the content of the Bill, or extends the scope of the Bill – must be referred to section 74(5) read with section 59 of the Constitution. The Committee must then call for comments and amendments to be forwarded to Provincial Legislatures for their views.

Where there are material changes in the Bill, the Committee would need to call for public comments.

Permission
Recommended process on amendments that constitute new ideas - Recommend that the Committee errs on the side of caution, to ensure compliance with procedural requirements. Recommend that the Committee request permission for new ideas that do not directly relate to making explicit that which is implicit in respect of expropriation without compensation for purposes of land reform.

The legal reasoning based on a procedural view from the NA Table:
The NA Table held that “The specific mandate of the Committee starts from paragraph 3 of the Resolution. The paragraphs before that, provides the background. What is thus important is to consider is what the impact of paragraph 3(b) is in respect of this mandate. With hindsight the resolution could have mentioned subsection 2 and 3 of section 25 of the Constitution. This notwithstanding, when the House considered this matter, it had in mind what was recommended by the Constitutional Review Committee, namely that there is a need to amend section 25 of the Constitution “to make explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform” in order to address the mischief identified by that Committee. It is our understanding that the bill that was advertised dealt only with subsections 2 & 3 of section 25 of the Constitution. If this is correct, it would be procedurally safe for the committee to invoke the provisions of Rule 286(4)(b) &(c). These provisions require a committee to seek the permission of the House to inquire into extending the subject of a bill or amend other provisions of legislation not contained in the amendment bill. It should however be borne in mind that this approach entails obtaining further public inputs specifically on the new/additional focal point.”

Discussion
The Chairperson referred to the point of whether the changes would bring about material changes and said that it would be premature to deal with that before dealing with the text itself. With regards to being confined to subsections 2 and 3, he wondered if the lawyers and legal opinions had regard of the rule of constitutional interpretation, because when one reads a document, one reads a document as a whole. If one isolates subsection 2 and 3 and are confined to deal with those two subsections, one will be losing sight on the fact that those subsections are intertwined and therefore cannot be dealt with separately. In his view, that legal opinion does not stand. He asked the Committee for their input regarding whether there are material changes to the Bill as published, and whether the Committee should just focus on subsections 2 and 3 in isolation of other subsections.

Prof A Lotriet (DA) thanked the Chairperson for dealing with the legal opinion from the start as this was something that they wanted to do in their previous meeting; they are glad that the letter from the Chair of Chairs directed them to do so. In whole, the DA agrees with the legal opinion in that it is quite specific and clearly sets out the mandate of the Committee and also states that the Committee would deal with subsections 2 and 3 which is correct. Furthermore, on the matter raised about the interpretation, one would obviously look at the whole of Section 25 but ones focus on the amendment falls within the actual mandate. The mandate is not to change everything but to focus on the specific mandate and therefore one looks at the whole section as the background, but the actual amendments have to focus on what is in the Bill. Going anywhere further, for example what has been mentioned in this Committee about sub-section 25 (7) etc., would extend and exceed the Committee’s mandate and would be absolutely substantial amendments which does not fall within the ambit of the mandate of this Committee. In conclusion the DA supports the legal opinion as provided.

Mr N Shivambu (EFF) said that his observations about the legal service have not changed but has been justified. This question has been discussed before and not for the first time. The Committee had made the resolution that it would proceed to discuss the entire Section 25. This is what the Committee agreed and why parties had held bilateral engagements. There is no other way to characterise this, except to say that it is an attempt to hijack and abduct the process in a manner that is reactionary and it fits perfectly into the agenda of right-wing forces that do not want to amend the Constitution to permit for expropriation of land without compensation and this is a legitimate argument to make. He referred to the original parliamentary resolution and said that the National Assembly resolved that they are instructing the Constitutional Review Committee to “review and amend section 25 of the Constitution to make it possible for the state to expropriate land in the public interest without compensation, and in the process conduct public hearings to get the views of ordinary South Africans, policy-makers, civil society organisations and academics, about the necessity of, and mechanisms for expropriating land without compensation”. It was said to “propose the necessary constitutional amendments with regards to the kind of future land tenure regime needed, taking into account the necessity of the state being a custodian of all South African land”. The third component said that the report in its first context was due on 30 August 2018. Those discussions and all of those amendments to the House had resolved in the framework that the Committee would have to deal with in that context.
The establishment of this Committee and the resolution of Parliament when establishing those things of making explicit what is implicit, said that the deliberation of those issues must take into regard what has been resolved and recommended by the Constitutional Review Committee. How on earth do we waste a lot of resources doing public consultations and receiving substantial written submissions on the entirety of Section 25 and the so-called legal officers said that they are only limiting it to subsection 2 and 3? The Committee has listened to the people on the entirety of Section 25 and now they are told that they must only focus on subsection 2 and 3. The distortion and abduction of this process happened with the draft Bill itself, which deliberately and purposely reduced the deliberations to subsections 2 and 3. All of the sections and subsections are interrelated. Parliament’s intention and directive, was that it must review the entire Section 25, so that they can make it permissible for expropriation and repossession of land without compensation but now the Committee is being told at the tail end, that what they have been doing is basically absolute nonsense, rubbish, that they have been listening to the wrong things and must just focus on the reductionist approach of subsection 2 and 3. If this is done without looking at the entirety of Section 25 it will amount to nothing and is an attempt to collapse this process. This has already been resolved and he does not know why the Chairperson is entertaining it again. He urged the Chairperson that the Committee reject with contempt the attempt of the legal office to distort the process. He does not know why they are even allowed in these meetings; they need to focus on other issues so that the Committee can continue to deal with these issues as they are the people that were elected to represent this question. Both the EFF and ANC have been elected on the manifesto which said that they are going to expropriate land without compensation. This is the mandate that they have sought from the people and is the mandate of more than two thirds of the voters in South Africa that said that the Parliament should change the Constitution for expropriation of land without compensation and now the Committee is being infiltrated by wrong forces that want to distort the mission of their agenda.

The Chairperson said that he wants to place on record that Members have the absolute right to accept or reject any opinion given to them. However, they do not have the right to cast aspersions on the providers of legal opinions. That does not add value and adds unnecessary tensions because the lawyers that are advising them have their professional integrity to protect and they also have the right to be wrong and if they are wrong, it does not mean that they have an agenda other than the duties and responsibilities in their appointment.

Ms K Mahlatsi (ANC) referred to the Chairperson’s indication of whether the changes that they ought to make on Section 25 are not necessarily subjected to subsection 2 and 3 or whether it will be seen as making material changes to the Constitution as per the legal advice. She would like the Committee to go back to the recording when this deal was agreed to, because the legal staff were part of the process and listened to them as they spoke and made contributions as different political parties. She thought that they were present when the Committee agreed on certain arrangements in that meeting and questioned why they were quiet at that time. She was intrigued without necessarily casting aspersions on anyone, but there was a particular understanding in that meeting and the ANC had given them their own submission prior to the Bill being released. Each and every subsection narrates a particular story which is interrelated to another section. For the Committee to be subjected to subsections 2 and 3 is extremely unfair. It is extremely prejudiced to a large extent to say that after such a lengthy process that has caused Parliament so much money and at the very tail end and second last day before the mandate comes to an end, they are told that they are going to be subjected to two subsections is quite intriguing. She does not agree with this particular approach.

Mr S Gumede (ANC) said that the first opinion is correct but what the legal services had not said, in his opinion, is that in order to affect their opinion it speaks about going back to the community for an extension of something, he thinks that they will have to be clear so that the Committee can understand and be guided on those matters. He agreed with the view that there is no one at this stage who is obliged to accept the legal opinion of the legal services. However, he asked the legal services if their understanding or interpretation of these sections impact the other subsequent sections, if yes, how would they advise? If no, then it means that it would be left like that. He recommended to the Chairperson that the Committee minimise unnecessary debates. He was not sure if Members are ready but suggested that it would be better if each party submit their comments and amendments to the Chairperson at the end of the meeting, which will then be taken to legal services. He found it difficult for legal services, because when they take comments that are far apart and they try to be neutral then other people do not get accommodated and as a result they feel uncomfortable about the situation.

Mr W Thring (ACDP) said that in all Committees when there is some consternation, indecision or uncertainty one calls for legal opinion to assist on the way forward. Whether one agrees or not, the legal team does what they are mandated to do. The ACDP agrees with the legal opinion that was received this morning. He agreed with what the Chairperson had said after Mr Shivambu spoke. it is disingenuous to cast aspersions on the individuals who present the legal opinion when the opinion differs to their particular outlook. It should not happen. He expressed that if they were to call other Members counter-revolutionaries, cast aspersions or call them names then they would be called out of order; the same should be said when the Committee has opinions that differs to theirs, in that they certainly have to mind their language and not cast negative aspersions to those who bring an opinion which is different to theirs.

The Chairperson agreed with Mr Thring. He has no doubt that all political parties represented in this Committee have their own lawyers and the opinions that they get from their lawyers are not necessarily the same as the opinion of the Parliamentary Legal Services. He urged that the Committee agree that there will always be a diversity of legal opinion and that this does not then qualify Members to cast aspersions on anyone.

Ms R Lesoma (ANC) agreed with the point made by Ms Mahlatsi and Mr Gumede. The Committee has been down the road of arguing against the issue of looking at Section 25 subsections in isolation of each other. It is critical to note the compromise that the Committee made for allowing the Bill to go out for public participation processes. Unfortunately, the Committee was not advised that it was legally binding itself. The Committee had agreed to the compromise in good faith, thinking that when it came back after the public participation process, they will then respect the views that were presented in the public participation processes. She referred to other legal arguments as a case example, where Parliament and the court have also made the determination that “we must show good cause and reason why we should or should not ignore public opinions as it were’’. In the Land Access Movement of South Africa (LAMOSA) and the Chairperson of the NCOP and the Doctors for Life cases the courts said loud and clear that they should take the views and opinions gathered from the public participation process. She does not suggest that the parliamentary legal advice is incorrect but, in their argument, they have not told the Committee the reasons why they would disregard the views from the public participation process. Rule 286 allows the Committee to go beyond the mandate, which was partially presented last week but unfortunately not emphasised in this meeting. Considering the implications of the Committee going beyond what they had already went out for public participation for, she asked what the quickest route is that they would need to go. The Committee has been repeating itself and venting its frustrations of being confined to certain subsections. The preamble of the object of the Bill also suggests that if one does not look at Section 25 holistically and deliberately select certain subsections then one is not dealing with the whole of Section 25. She asked for guidance on how the Committee can look at the entire Section 25 as they have intended, without undermining Parliament and the public participation processes and taking into account what the court has already determined in this space.
 
Mr Shivambu said that there is absolutely nothing wrong for them to correctly observe that these kinds of legal opinions, which comes at the tail end of this process is bordering on gross misconduct by the legal office, because they have seen this process unfold in terms of the public hearings, oral submissions and written submissions. Nowhere in this process have they said that the Committee is entertaining something wrong, they leave it until the tail-end when Parliament has utilised a lot of resources. They now suggest that if the Committee wants to process the submissions on the entire Section 25 that they would need to go back to what they have done before. Their intervention amounts to gross misconduct. He had said in the National Assembly Programming Committee meeting, that they are going to launch an official complaint concerning this, because he detected from much failure that they were being led to not proceed with this process and if they want to proceed with this process, they would have to go back to Parliament, redraft the constitutional amendment bill and then go back to public hearings, which is a cumbersome long process and which they have already handled - the people are going to say that they have already told the Committee what to do and question why they are coming back to them. The Committee is now limited to this particular context, due to either infiltration or gross misconduct. He questioned why the legal office did not contact them in the beginning if they were genuine about this. There is nothing wrong with observing, it is not misconduct, it is not wrong, it is not out of order to identify wrongdoing by the legal office of Parliament. It has been said on several occasions that they are misguiding the Committee. This observation needs to be dealt with more honestly, because what they are basically saying is that the Committee should go back to Parliament and say that they want to amend the entire Section 25 and then they will redraft the entire constitutional amendment bill, go back to public hearings and the Committee will not resolve this issue within the time period. When the Committee proceeds to amend the entire Section 25, the legal office will be part of those who will challenge these constitutional amendments; they are doing this to prepare for the constitutional challenge for this process that the Committee is engaging on. They are going to be the ones who oppose the Committee at the court, and say that they told the Committee to not amend the entire Section 25, because of some mechanical issues which they did not mention earlier. This amounts to misconduct and the Members cannot be ashamed to say that on this political platform.

Prof Lotriet said that it is important to put on record the opinion provided by the legal services on page one, paragraph one, introduction, where it states “Our Office has been requested by the Ad Hoc Committee on the amendment of Section 25 of the Constitution, to provide legal advice on whether the Committee may make further changes to the current draft of the Eighteenth Constitutional Amendment Bill”. So therefore, this was a request issued by this Committee and it was not the legal services interfering from their part; it is very important that this is stated in the minutes of this record.

Dr C Mulder (FF+) apologised for only participating now as he was involved in the debate in the House on the 25-year anniversary of the Constitution. He said that the point made by Dr Lotriet was absolutely correct and he was going to make the same point. The legal services did not act on their own; they were requested to do so by the Committee and they gave their opinion. He is concerned about what Mr Shivambu had said. They had a discussion the previous day in the programming committee about this. Mr Shivambu was clearly told that he cannot cast aspersions on officials of Parliament who are not there to defend themselves; they are not Members of the Committee; they are not Members of Parliament who are in the position to defend themselves. Despite this fact, Mr Shivambu once again did exactly the same. Mr Shivambu argues that the opinion from the legal department of Parliament is either an infiltration or gross misconduct. Unfortunately, words have implications, complications and meaning. He requested the Chairperson, despite the fact that he did so last week to inform the House Chair who is responsible for committees, to do so once again, and to bring this to the attention of the Speaker, that they cannot allow that this kind of thing is tolerated in committees of Parliament, because if this is the case then they might as well dissolve the legal department of Parliament because anyone can come at any stage and launch a huge attack on legal services. If the EFF differs to this legal opinion, then they should bring their own arguments and convince the Committee that they have “superior arguments” as they have sometimes said, but they do not have. With all due respect, he urged that the Chairperson reports this once again to the House and to the Speaker. He suggests that the appropriate steps are taken to Members who misuse their position to cast aspersions on the officials of Parliament.

Mr Shivambu interjected and described Dr Mulder’s comments as absolute rubbish.

Dr Mulder replied that luckily that is Mr Shivambu’s view and most of what he says is exactly the same.
The Chairperson said that this is the most serious issue that the Committee is dealing with. He asked that Members not make jokes about it because these jokes will go to the public and if something goes wrong the public will say that the Members of this Committee were playful during the meeting. He pleaded that the Members maintain the decorum of this Committee.

Mr Thring said that it is absolutely important that they respect the decorum of this Committee and that they have Members that are disciplined in terms of their approach, their speech and in respecting the Chair. When Mr Shivambu spoke, the Committee listened to him and raised points of order after he had spoken, but again, after Dr Mulder spoke and without the Chairpersons permission, Mr Shivambu used the mic and called what Dr Mulder said “rubbish”. If he disagrees, he can do so once he has the Chairpersons permission to do so. Again, it cannot be tolerated. He agreed with the Chairperson that this is a serious issue that requires the discipline from all Members of this Committee.

The Chairperson repeated that these allegations and some of the language used is not acceptable unless they are fully substantiated and this is not the platform for such substantiations. Although he had already escalated this matter to the office of the Chair of Chairs, Honorable Cedrick Florick, he will do so again because these matters have come back to haunt them again. He urged that the Committee leave the matters there and resume the business of the day. He agreed with Mr Shivambu and others that in previous meetings the Committee agreed that they will look at Section 25 holistically, because the subsections are interrelated and intertwined. The Committee will not move away from that decision for the purpose of their deliberations today. He referred to the issue of legal services advising the Committee when they had adopted the draft Bill and questioned why they did not alert the Committee of the limitations on the scope of their work; but also reminding the Committee that the circumstances under which the draft Bill was amended were such that a compromise was required to enable the Committee to kick start the process. When the Committee adopted the compromise, it did not consider the positions of all the parties and therefore, one could say that the adoption of the draft amendment Bill was done with a clear understanding that it did not have the position of all parties and therefore the committee cannot paint itself into a corner because of that compromised draft Bill.

More importantly, our democracy is a representative and participatory democracy. As Members of Parliament, they do not have the monopoly of wisdom and that is why the democracy says that they may think what they want to think or come to conclusions but the people are the final arbiter, so they are obliged by the Constitution to go back to the people. However, they cannot go back to the people after they have expressed themselves and the Committee ignored what they have said and proceeded as if the people do not exist. For this reason, confining this Committee to subsection 2 and 3 would defeat the purpose of participatory democracy. He does not think that any court can come to the conclusion that the Members of Parliament have the monopoly of wisdom that the public do not matter. That is why some laws were struck down by the courts on the basis that there was no sufficient consultation. Consultation with the people is an essential element of the work that the committees do. He asked that the Members not cast aspersions on anyone and that the Committee proceed to look at Section 25 holistically. The other matter, relating to what Dr Mulder had expressed, is that any Member is free to seek opinions but they should respect all opinions, whether they agree with it or not. He asked the Parliamentary Legal Services if they have produced a new draft Bill informed by their opinion.

Response from Parliamentary Legal Services
Adv Charmaine van der Merwe, Senior Legal Adviser: Office of constitutional and Legal Services, Parliament, clarified that their opinion and their presentation has never said that this Committee is restricted to subsections 2 and 3. They have indicated that this Committee may make amendments to the Bill that is before it. This was also indicated the previous week when the Committee was advised on the process of considering the Bill. This Committee may make other amendments to the Bill that is before it. The National Assembly rules, as well as the Constitution provides for circumstances if such amendments are to be made. Members had indicated that they cannot make further amendments because the legal services had said that they are limited, but that is not correct. What they had said is that the Committee can make amendments but there is a process that must be fulfilled. When they had drafted the Bill, the Committee had only instructed legal services to make the relevant amendments as the Bill is currently; this was presented to the Committee, it discussed that Bill before it was decided to publish the report. On the day that the decision was made, further amendments were proposed, the decision made by the Committee (as pointed out) was a compromise and the Bill was published as is. At that time, the Bill complied with constitutional principles, the National Assembly rules and the Constitution. The legal services will point out to the Committee if something is being done by this Committee that will make this process unconstitutional in terms of the National Assembly rules, other than that, they act only on the instructions of this Committee.

Referring to the question of what must then be done if there are further amendments, she replied that this is where their opinion continues. If it is a technical amendment then the Committee does not have to go back to the public but if it is a substantial amendment and extends the scope of the Bill, then the Committee would have to go back to the public. Then the advice from the National Assembly Table says that it would be safe for the Committee to go back to the House and request to further extend the scope of the Bill. So, there are no limitations on this Committee, but there is a legislative process as set out in the Constitution and National Assembly rules.

Referring to whether subsections 2 and 3 impacts other subsections in Section 25, she replied that Section 25 needs to be read holistically, but when it comes to what legal services was instructed to do, namely, to make explicit that which is implicit in Section 25, related to no compensation for land reform, the only required amendments that the legal service could identity was to subsections 2 and subsection 3. In respect of that subject matter there are no further amendments required.

Referring to the question of what the process is moving forward, she reiterated that if there are substantive amendments that expand the scope of the Bill then the Committee would have to go back to the public, in terms of section 74(5) read with section 59 of the Constitution, as well as a number of court cases as quoted, such as the LAMOSA case which confirms the Doctors for Life case. Referring to the Chairperson’s question on whether they have drafted another Bill, she replied that they are still waiting for instructions. At this point in time, Members have been doing bilateral engagements and if the Committee now goes through the Bill and give the legal services instructions on what to draft, then they will start and develop any amendments. If the Committee decides that the Bill should not read as it is at the moment, in terms of the text of the Bill, then they will receive those instructions today, but they cannot simply draft without instructions.

Ms Halley-Starkey said that in order to amend the current version of the Bill, the Committee would need to follow the rules, approach the House for permission and extend their mandate. She points out, that when the first draft was presented to the Committee, legal services had explained that they have drafted on instruction from the Committee and within the mandate that was currently before the Committee. Reiterating what Adv van der Merwe had said, the Committee can alter the current draft of the Bill but they must go back to the House to ask for permission to extend their mandate. Where there are material and substantive changes, only those will be advertised. So, it is not that there has to be an extensive public participation process again, it would just need to have a public participation process on those material and substantive changes.

Discussion
The Chairperson referred to the response from the legal service and said that as lawyers they have identified that changes are not only required in regard to subsection 2 and 3, but as Members of Parliament and in terms of the Constitution of this country they were required to go and conduct public hearings. From the public hearings it became quite clear that the people want changes and want them to make explicit what is implicit, with regards to Section 25. The Committee came back and said that Section 25 must be read holistically. He agreed with the Members that Section 25 needs to be looked at holistically and that is how they will proceed. With regards to the Committee’s mandate when they had drafted the Bill, he agreed with Adv van der Merwe and Ms Halley-Starkey that the legal services got the mandate from the Committee, but the mandate was informed by a compromise and therefore they cannot allow that compromise to compromise the will of the people of South Africa. Therefore, the Committee will proceed on the basis that they have made, that they are not limited to subsection 2 and 3. If the House wants the Committee to seek an extension, the Committee has no time to go to the House, they are going to address the draft Bill and produce a report and if the House thinks that the Committee is out of order then the House will call them to order at that point, but now, the Committee is at the stage where they have no other business than to look at the text. They will not wait for the text produced by legal services, because they have not done it as they have not been instructed by the Committee; but the various political parties have engaged with the text and should be able to make contributions which will take the Committee to one conclusion or the other.

The Chairperson opened the floor for those who want to address the text, not the politics of the text but the text itself.

Prof Lotriet said that she wants to place on record that the DA supports the recommendations of the legal opinion and what the Committee is doing now and the approach that the Chairperson suggested is ultra vires. They would like this to be minuted and be on the record.

The Chairperson said that there will be many opinions in this meeting. What they must record is what the majority are saying. The opinions will be captured but the Committee will not make resolutions on the basis of individual opinions.

Mr Shivambu said that the EFF had not concluded their bilaterals with the ruling party (ANC). They had two meetings and there are some areas which they had an agreement on and some areas that have not been finalised in terms of what should be done. He referred to the property clause as per the proposals and said that in their first submission, they proposed that subsection 1 should be amended to include a sentence that says “deprivation can be utilised for land reform and distribution purposes”, but there is no need to do that in terms of their current submission, so subsection 1 can be retained as is.

He read the other submissions pertaining to Section 25 (see document attached, titled “Latest Formulation of Section 25 Outcome of Bilateral”).

He noted that they removed the date in subsection 7, 19 June 1913, to holistically say that those who have been dispossessed of land due to racial discrimination should be entitled to restitution. They then say that custodianship should be established in Section 25 of the Constitution and that the context of the custodianship should be through a law of general application, which Parliament must pass. The law of general application will always clarify the redistribution roles of different spheres and layers of government, in terms of who is responsible for what. They have always indicated that there is currently land that is under the custodianship of the state, which includes forestry land, agricultural land, land that is on the public works and a variety of other land pieces and parcels which are being given to people for use purposes, with the proviso that if you do not use it, you lose it. This is the principle that should be established in the Constitutional amendment and of course, that must guarantee security of tenure for those who are given land user rights, which is legally defined through a law of general application. This is derived out of the original parliamentary mandate that said that they should look into land tenure and the state being the custodian of all South African land. Due to network challenges in the last meeting, he clarified that there is a strong distinction between state custodianship and nationalisation of the land. The Agri South Africa versus the Minister for Minerals and Energy case dealt with that question. Almost the entire Constitutional Court agreed that custodianship is distinct from nationalisation. Nationalisation means that the state can change user rights as and when it wishes because it will own the land fully, but custodianship says that the state is holding on behalf of the people and once it gives land for use purposes, there must be clear principles that guarantee security of tenure, with the clear principles on how it reposes if what the land has been given for is not being utilised meaningfully. The purpose of custodianship is to be able to give the state the space to play a much more redistributive role, in terms of equal allocation of land to all the people of South Africa. 72% of titled deeds of arable lands are in the hands of descendants of white colonial settlers. The indigenous Africans only have less than 4% of titled deeds in South Africa. So, no one should try to sensationalise that they are trying to dispossess anyone of land, but the state should be the custodian so that they can redistribute equitably for the benefit of all South Africans.

The Chairperson thanked Mr Shivambu for having done the homework. He noted that Mr Shivambu had said that they had not concluded bilaterals, they will come back to the question of bilaterals at the end. For now, he asked for other parties to comment on what was said or put forward their own proposals. The purpose of the exercise is to record areas of agreements and disagreements. At the end, if there is no agreement on issues, then the Committee would have to have constitutional options to say that they have the following options which can be subjected to further bilaterals for Monday.

Ms Lesoma said that the ANC was not too sure if it needs to repeat itself, because it presented its suggested text last week and the minutes do reflect that. Unless the Chairperson directs them, then she will ask Mr Xaba to repeat himself again for record purposes of the meeting.

The Chairperson replied that he would prefer that they repeat their suggested text, because the Committee is at a final stage and to refresh everyone’s memory of what was presented.

Ms Lesoma said that that they are not saying anything about subsection 7 but they will repeat the rest.

Mr V Xaba (ANC) said that the ANC is still in discussion with other political parties but they have now run out of time. Maybe they should then say what they are going to do about that, because they have run out of time. The EFF and ANC are still working on their differences and he is hopeful that they will succeed on narrowing the gap between the two political parties. In their meeting with the DA, it appeared that they were not prepared to review their original stance, that they do not see any need of amending Section 25 and they believe that section 25 as it stands can deliver on what they want to achieve. In that situation, it is either that the ANC move to the DA, because the DA does not want to move to the ANC; it is a situation of Moses going to the mountain and the mountain not being prepared to make any move. The ANC was ready to accommodate them but it is clear that they are not willing to re-discuss their own position, but they have not lost hope that they will change their position and start to move towards the ANC and even if they do not come closer to the ANC, as long as they show some seriousness in terms of wanting to find a solution, then they will definitely find common ground. On the one side the ANC has bilaterals with the EFF and on the other side with the DA, but they are also talking to other parties as well. He suggests that perhaps the Committee’s report should state that they have the legal opinion that says what it says and that they have debated earlier on and at the moment the parties do not have the necessary majority to approve the text.
The Committee still needs more time to discuss these issues.

The Chairperson said he gives Mr Xaba the benefit of the doubt because he came in late. He told Mr Xaba that before he joined the meeting, the Committee agreed that they would address the text, trusting that the contributions by Members will be informed by the bilaterals, but also taking into account the fact that bilaterals were not complete but that the Committee can still find some space to get bilaterals completed before Monday. It has been requested for Members to either comment on the substance of what the EFF has put on the table or to repeat their own submission to refresh the memory of other Members, so that the Members can listen to the submissions and make up their minds of whether they are moving towards each other. He asked that Mr Xaba continue and refresh the Committee on the ANC’s position.

Mr Xaba said that the ANC’s position is that Section 25 (1) remains as is. Section 25 (2)(a) must remain as is and Section 25 (2)(b) must remove any reference to the court, not that they are ousting the role of the court, the court has its own constitutional role but they do not think that the court should come in at the primary stage of determining compensation. They do not think that this is the courts’ role and it would be judicial overreach. If there is agreement between the parties, the expropriated body and the expropriated person, the matter ends there and the payment is made; but if any of the parties are not happy with the amount of compensation then that person may approach the court to adjudicate the matter; so, the court would retain its review power. On Section 25 (3)(a), they make the same appeal to remove any reference to the court and that “specific circumstances” must be changed to “circumstances”, removing the word “specific” and retaining the word “circumstances”. This is their proposal and they are in discussion with respect to other subsections. The ANC are looking at amending Section 25 (4), and Section 25 (5) and they retain Section 25 (6).
The Chairperson said that the Committee respects the fact that they are still in discussions, but today, they want a report on the status as of now. He asked for the ANC’s position on each of the subsections, while understanding that further bilaterals might change that position.

Mr Xaba resumed that Section 25 (1) is proposed to be retained as is, but they are willing to make compromises on the condition that whatever amendment is made that it makes explicit that which is implicit. Section 25 (2)(b) he has been explained. Section 25 (3)(a) has been explained. Section 25 (4) is under discussion and what is being proposed is that …

Mr Shivambu interjected and said that with due respect he understands what Mr Xaba is doing and he is correct that the majority of the areas that he has to present on has no finality. He asked if the Committee can please discuss those things on Monday, because the EFF and ANC will meet on Sunday to finalise those bilaterals. If they do not agree, then they do not agree and if they agree, then they agree.

The Chairperson replied No. He told Mr Shivambu that he had stated his position clearly for the record and he asked Mr Xaba to state the ANC’s position for the record. It was not to place on record conditional positions which depend on further bilaterals. He asked Mr Xaba to proceed to repeat the ANC’s proposal for record.

Mr Xaba said that he is placed in a great difficulty now. The ANC’s position remains unchanged from what they have presented previously. He asked to leave it as it is on record.

The Chairperson accepted and asked if any other party wanted to make a submission or comment on the submissions of the EFF and ANC.

After a few seconds of silence, the Chairperson asked Mr Xaba what was the ANC’s submission on Section 25 (7).

Mr Xaba replied that they had no position at that stage.

The Chairperson asked if there was any other input.

Ms Lesoma asked if she would be wrong to say that the land redress issue to address the imbalances of the past is only an issue for the EFF and ANC, and that the other parties do not care what happens.

Dr Mulder replied that he does not think that they can say that at all. He knows that there are ongoing bilaterals, parties have their different positions and it seems that the bilaterals have not been finalised and that they needed to be concluded over the weekend. It would be a wrong summary to say that the only parties who are interested in the land question would be the ruling party and the EFF. All parties are very interested in this, as is the public and that should be respected. 

The Chairperson said that it is good that Dr Mulder has spoken because Ms Lesoma correctly came to that determination, because no one was speaking. Now that Dr Mulder has indicated that they have an interest puts the matter to rest. 

Mr Thring added that it is an incorrect assumption or conclusion to say that no other political party is interested in the land question. The position of the ACDP has been clear from the start. They did not feel that the Constitution needed to be amended in the first place, hence, the difficulty in their engagement in looking for amendments to the Constitution, when they did not feel it was necessary. In terms of redress, the ACDP does believe in the principle of restitution but they obviously disagree with the process. In other words, they do not disagree with the why, but they disagree with the how. 

Mr P Masipa (DA) said that Ms Lesoma was incorrect to say that it is only the ANC and EFF that are interested in land reform. The DA is really interested in land reform but the question is how. What instrument does one use to implement land reform? He wants to put on record that the DA definitely believes in land reform, but they do not think that they have to lower the bar at a constitutional level in order to redress, there are other means and instruments that can definitely be used to do so.

The Chairperson said that Ms Lesoma was correct at the time that she spoke, because no other party had raised their hand, but subsequently, when other parties said they were interested that has been corrected.

Adv G Breytenbach (DA) said that Ms Lesoma was mischievous and she thinks that she knows that. They are all there and they are all interested. They are there because they are interested and have made it very clear that they are interested. The DA’s position is also clear and they have no amendments to proffer because they do not believe that they should be making amendments. The fact that they did not suggest amendments certainly cannot be constituted to say that they are not interested. This should be put on record.

The Chairperson proposed that they give instructions to the Parliamentary Legal Services to draft an amendment informed by the debates that have taken place. The debates may be such that they cannot have one uniform amendment but that there are options. For now, the Parliamentary Legal Services should provide the Committee with draft constitutional options that have emerged thus far. The political parties should continue the bilaterals until Sunday midday or 13:00pm. The Committee will convene to meet on Monday at 09:30am, and they may have to meet until 6pm to narrow down the options and seek to reach consensus, because there are merging positions where they can find one another. He secondly proposed that the Committee Secretariat should immediately start drafting the report, which will be improved on the basis of Monday’s outcome by 1pm, so that by 6pm the report is ready for submission to Parliament.

Mr Masipa said that the legal team answered the Committee on the question of whether the Bill can be amended beyond what was advertised. The answer was yes, but it if there are substantive and material changes that would then need to go back to the National Assembly. He was worried and reminded the Committee of what he had previously said, that they might be rushing this process and not following the procedure and be back again for the next twelve months. He cautioned the Chairperson that the speed at which he is going might not end up with the results that the Committee desires.

The Chairperson said, in his view, it would be premature for the Committee to say that maybe there is a need for the Committee to go back to the people. He had proposed a process and at the end of that process Mr Masipa’s concern would be relevant but at the moment it is not.

Mr Gumede said it looks like the Member is afraid to say what he wants and that he is lamenting on the kind of extension. He suggested that Members would have to be upfront and frank rather than keeping quiet and putting indirect questions which are not satisfying some of the issues that they want to address.

The Chairperson agreed and said that Members must be upfront and make things explicit so that the Committee is all at one. At the moment, as he had suggested they will deal with the process and the process is to instruct legal services to draft an amendment informed by their discussion, but where it appears that the discussion has generated more than one option, then they must list all of the constitutional options in the form of a draft Bill. Meanwhile, the Committee Secretariat must start developing a report, which will be amended after Monday’s meeting to bring it in line with the thinking as it will be on Monday. He is confident that by Monday the Committee will complete this process.

Ms Lesoma referred to the technical process of submitting reports to the House and said that their term ends midnight on Monday. She asked what the ideal time was to conclude this task so that they can reach that time. It would be unfortunate if they complete the report slightly after midnight, which will be the following month and mean that all of the time and energy gone into this would have gone to waste.

Closing remarks
The Chairperson repeated that outstanding bilaterals should be completed by noon on Sunday. The Committee will meet at 09:30 on Monday. He has no doubt that those bilaterals will bring the Committee closer to one another and help them find one another, so that, before 6pm they will have their work completed and the report should be ready for adoption. He is pleased that this process is going on very well and that no party is not interested in this process and therefore, they are at one with what they are doing. They may have different opinions but they have the same commitment to discharge the mandate bestowed on them by Parliament. He reiterated that this process is not a process between one or the other party, or one group of parties against the other parties, but this is a process that belongs to the people of South Africa, both black and white. The Committee is just privileged to be presiding over this process. He is grateful that the Committee has taken this matter seriously and has been willing to meet over weekends to address the issues that are arising. He wished the Committee well over the weekend and asked that they please intensify their efforts to find one another in the best interest of the people of South Africa as a whole.

The Committee Secretariat requested that Mr Xaba email the ANC proposals.

Ms Lesoma said that they will do so again.

The Chairperson asked that it be done immediately so that the Committee Secretariat can start drafting the report and the Parliamentary Legal Services are duly mandated to start doing their work. He thanked everyone.

The meeting was adjourned.