Constitution 18th Amendment Bill: Parliament Legal Services & DALRRD input, with Minister

Meeting report

Opening remarks
The Chairperson welcomed Members and the Minister of Agriculture, Land Reform and Rural Development, Ms Thoko Didiza. He said that he did not want to hold the Minister up unduly. She had to be speedily released.

The Chairperson stated that several processes were taking place at the same time that were not talking to each other. The processes were not being reconciled and communicated to the public. The resulting confusion seemed to have crept into the Committee regarding its oversight work.

As Chairperson, he always summarised what had come out of the meeting without fear or favour and he had no right to doctor the facts or impose his views on the Committee decisions. If Members were confused about their mandate, they also confused the administration and that confusion was reflected in statements to the public and in correspondence.

The letter of invitation to Minister Thoko Didiza meant that the Committee had to refresh its memory of the Committee’s mandate to ensure that there was no overreach on the side of the Committee. The Committee also had to clarify its relationship with other Committees. The Ad Hoc Committee did not have oversight over other Committees. It was not a super-Committee and had no right to bully any Minister, Deputy Minister or any Department appearing before the Committee. The only request that the Committee made was that Departments should not send consultants to address the Committee on political matters.

The Chairperson apologised to the Minister if the confusion in the Committee had caused her any inconvenience. It was a multiparty Committee so he had to treat all parties with respect but he tendered his apologies if the confusion had impacted on her. He reminded Members that the Minister was there not to discuss matters but to brief the Committee.

The Chairperson reminded Mr V Xaba (ANC) that the Committee had charged him with certain responsibilities and he now requested Mr Xaba to summarise the mandate of the Committee.

Mr Xaba stated that the mandate of the Committee was very clear. There had been a Resolution of Parliament. The EFF had moved a Resolution, to which an amendment had been proposed by the ANC. The House had voted and the outcome was the Resolution that the Committee was called upon to give meaning to. Following the Resolution by Parliament, a process was undertaken by the Constitutional Review Committee (CRC) to look at the desirability of amending section 25 and the mandate was overwhelming that section 25 had to be reviewed and the process was essentially about reviewing section 25. The Committee had met, deliberated and determined that a Bill would be needed before going to the public. The Bill was presented, public participation had been engaged, submissions were received and the oral submissions had been heard, all of which was aimed at enriching the discussion.

Arising from that process, he added that the Committee now had to listen to two Departments, the Department of Public Works and Infrastructure (DPWI) and the Department of Agriculture, Land Reform and Rural Development (DALRRD) as they were the Departments mainly affected by section 25. Sub-sections 25 (5) to 25 (8) talked to the core business of DALRRD and balance of the sub-sections spoke to DPWI but with no Chinese wall between the two.

Mr Xaba explained that if the Bill had emanated from either one of the two Departments, it would have been accompanied by a detailed memorandum, setting out the purpose, the background and any weaknesses but it did not have that as it had come from the resolution of Parliament, meaning that the technical nuances had not been presented to the Committee. How would the Bill enhance the performance of the two Departments? That was what the Committee wanted to hear from the Departments and how those issues had delayed land transformation in the country. The intention of the day was simply to hear how the Departments viewed the Amendment from a technical perspective as the Committee had only heard aspirations up to that point.

The Chairperson stated that Mr Xaba’s summary was in line with his understanding. He asked if any of the Members had a problem with that summary.

Dr C Mulder (FF+) had a problem. He thanked Mr Xaba for his interpretation and for the feedback. However, he had made a statement that there had been an overwhelming mandate for the CRC. Everyone knew that was in dispute and there was a legal challenge and there would be more challenges as 500 000 written submissions had not been taken into account. Secondly, Mr Xaba had forgotten about the other Committee, coincidently under Minister Thoko Didiza when she was not a Minister, that had had a mandate to complete before the elections in 2019 but that Committee had not completed its work.

He did not think that the mandate was to hear the practical problems of departments in terms of what they were expected to do. The Committee’s mandate was in terms of what needed to be done and therefore a Bill had been drafted. According to the parliamentary rules, the Committee should engage with the Departments to get their comments on the Bill; it was not the Departments’ task to brief the Committee on their problems.

Dr A Lotriet (DA) enquired at which meeting Mr Xaba had been given a mandate to do certain things and what the instructions were as she was not aware of it. The interpretation of the mandate of the Committee was the responsibility of the Chairperson and not a Member of a political party on the Committee. She was concerned that the meeting was moving in an unprocedural direction. She requested clarity from the Chairperson.

Dr M Ndlozi (EFF) was not aware of any rule of Parliament that said the Committee should not listen to the challenges of a Department. There was no such rule. One cannot say that there is a rule and then that rule exists. The speaker had to indicate to which rule he was referring. If the Member was disputing the request to hear the challenges of Departments, he should say so. Lots of people representing predominantly white organisations had given a critique about the impediments for land reform and they had said that the impediments were with government and not the Constitution. It seemed only fair to hear what government was going to say to that. To be properly informed, one had to hear such things. He found the submission irrelevant.

Mr F Shivambu (EFF) reminded the Committee of the decision at the last meeting to hear the Departments so as to hear the type of presentations that they gave to the Committees. That resolution had been taken so no one should say differently. It was opportunistic to do so. It was only appropriate before the finalising the phrasing of the Bill that the Departments should respond to the many allegations against them, but also for the Committee to understand the difficulties experienced by the Departments.

He pointed out that the Chairperson had to consider the ongoing attempts to filibuster the process by the right wing elements.

Mr W Horn (DA) stated that the Ad Hoc Committee was a Committee of Parliament and while it was obviously in the purview of the Committee to listen to departments that dealt with land and expropriation, the Committee should not turn a blind eye to other processes of Parliament. Then one had to ask the question about requesting those who had dealt with the “High Level Panel Report”, former President Motlanthe and his team, to make a presentation. The report was currently on the parliamentary website. He found it strange that the Committee should not invite that team while inviting the departments as there was a product of other processes of Parliament that was directly and specifically relevant in respect of why land reform had failed up to that point.

Ms R Lesoma (ANC) said that questions and other issues not dealing with the Department should be dealt with at the end of the meeting or the Committee would not make progress. The Committee should proceed with the purpose of the day.

The Chairperson stated that Mr Xaba had been requested to assist, not because of his party, but because he had an institutional memory. He as the Chairpperson had the discretion to ask him and Mr Xaba had done an honourable job. He requested a two-pager document in writing from Mr Xaba. The Department had been invited in terms of the rules of Parliament. Several processes were engaged in the process and other stakeholders should not be left behind.

He apologised to Minister Didiza as the Committee sometimes forgot its mandate. In future, the Committee should focus on its core business. He asked Minister to speak but informed Members that they were not to question her as it was not the right of Members of that Committee to do.

Remarks by the Minister of Agriculture, Land Reform and Rural Development
Minister Thoko Didiza stated that she would respond to some of the issues raised during the hearings about the slow pace of land reform. She would also put forward some of the constraints experienced by the Department. She hoped that the process engaged upon by the Ad Hoc Committee would unblock some of the constraints that her Department was experiencing.

Background to Land Reform
The Minister explained that the issues on land reform emanated from the Interim Constitution as a mechanism to address imbalances of the past where dispossession had made some of the people landless.  Land Reform was embedded in the Bill of Rights which gave every citizen the right to property for all but in order to redress the injustices of the past, the state had to undertake land reform. The White Paper on Land was agreed upon in 1997 and set out the framework for land reform. In 1995 the Restitution of Land Rights Act was passed to provide for restitution of land rights for those dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices. The 1913 cut-off date had been heavily debated. The Restitution of Land Rights Act provided that land could be returned or compensation paid if that land was no longer available. The Constitutional provision allowed for the setting up of the Commission of Land Rights and the Land Claims Court which could adjudicate in disputes on how land restitution was undertaken. It also allowed for processes where communities could approach court directly for redress.

The policy framework on land restitution was put in place by relying on existing legislation, as well as drafting new legislation that would allow the state to address inequality, address the human settlement problem, and address livelihood issues as well as agrarian reform. Tenure reform was also identified as an important part of policy given the dual nature of the tenurial system.

Challenges faced in Land Reform in the past 27 years
The intention had been that in the first five years, the state would re-distribute about 30 million hectares to those who had been historically disenfranchised. The instruments, however, both in policy and in legislation were inadequate to give effect to that idea. Minister Didiza provided an example of Land Restitution. After 1995, the Land Claims Court had to be set up and had been operational since 1996 but with no fulltime judges except the Judge President. The claimant individuals had to lodge claims from 1995 to 1998. That indicated the difficulties. The Commission’s administration and the support for the Commission had to be put in place. Research into the validity of the claims took longer than expected. The principle of negotiation was the “willing buyer, willing seller” principle. It all took longer to be put into place to give effect of the injunction.

Section 25 became difficult to apply. If one looked at those factors highlighted in section 25(3), one required a set of records that would give the history of acquisition. The drafters had assumed that all land was acquired, but everyone knew that after the promulgation of the 1913 Land Act, those who were beneficiaries were allocated land and there was no form of acquisition that one could talk about in that instance. Subsequently, owners and their dependents might have later sold the land and therefore when determining the history of the acquisition of property. As what stage did one start to determining the history of acquisition?

The Amendment to section 25 would have to account for the factors in section 25 and address whether or not they limited the state’s capacity to implement land reform. Secondly, one would have to look at the state subsidy provided in subsection 3. The subsidy was not directly monetary. In some instances, it was a soft loan, or it had been subsidies to put up certain infrastructure and, therefore, to determine an individual benefit of that subsidy was not an easy thing to determine. Just and equitable compensation was another difficult matter to determine as there was no guidance for an evaluator to decide on just and equitable. That bedevilled the Office of the Evaluator-General even to that day in determining just and equitable as there was a number of litigations against the Office of the Evaluator-General in respect of evaluations to determine prices on offers to purchase. That made it difficult to procure properties and the entire process was compounded by the fact that the state was the sole buyer in the market.

The lack of coordination across government made it difficult for beneficiaries of land reform to create productive assets on the land that they might have received. The High Level Panel report, as well as the Presidential Advisory Committee on Agriculture and Land Reform, had noted that point and it was the lack of coordination that had led government to set up the Inter-Ministerial land and Agriculture Committee which was chaired by the Deputy President. The intention was to bring together all the Departments that would be impacted upon in the matter of land reform.
Another issue related to poor settlement support, which everyone agreed had been minimal and, at best, disjointed across government. The choices exercised by individual families and communities was another cause for concern as most of the claimants had opted for financial compensation instead of land restoration as the state would have wanted. Land redistribution had been skewed towards those who wanted land for agriculture as opposed to addressing issues of human settlement. The process had a rural bias that enabled the land inequality to continue in urban and peri-urban centres.

The weaknesses in the land administration had also been exposed where one looked at land allocation through leasehold. In certain instances, that was where a great deal of malfeasance had occurred at local level. At the time that area had exposed weaknesses in the Department’s capacity. Frequent changes in programmes had caused confusion as to how the state supported land programmes, particularly farming land. There had been various programmes to intervene in land redistribution, such as the land equity scheme that had not had the desired result. Certain interventions, such as The Extension of Land Tenure Act addressed eviction, rather than addressing the land tenure of those same farm workers.

The weakened state capacity also led to a lack of success in land reform. The High Level Panel had reflected on those issues of weakness of state capacity in preparing key legislation and ensuring fundamental change.

The Minister had highlighted the problems but that did not mean that the problems had not been attended to. She highlighted some interventions on the side of government. The Inter-ministerial Committee which ensured coordination was working on one such intervention. The beneficiary selection and beneficiation policy had been approved by Cabinet and had been circulated for public comment as it addressed the issue of a lack of transparency on the policy of how people could receive land from the state, an issue which had been addressed by the Panel and the Advisory Committee.

Another issue was the Land Donations policy that had been approved following the realisation by the Advisory Committee that there was no framework for people to donate land where they wished to do so. The Department had been re-configured to ensure alignment and coordination. Building the capacity within the Department was being done by filling critical posts. She was also seeing the building of capacity for land administration. The establishment of the Land and Agrarian Agency was another instrument that would see to the fast-tracking of settlement that had been agreed upon.

Section 25(6) gave the state the opportunity to develop a Law of General Application that would ensure the fast-tracking of land reform. Her Department was also working on legislation that would allow the state to tackle the dual-land tenure system and had engaged the Portfolio Committee in that regard. The Department was fortifying settlement support intervention through financial and non-financial interventions as well as building the capacity of the Advisory Services that had been highlighted by the Minister of Finance in the current year’s budget. That was another intervention designed to beef up the capacity of the state.

How would the Amendment of section 25 assist in unblocking some of the difficulties?
As the National Assembly (NA) and (NCOP) had agreed, Parliament needed to give clarity to what was ambiguous in the Constitution. If one looked at the factors that she had highlighted, when legislators looked at section 25, they would be able to see where they could remove some of the challenges. There had to be further elaboration on 25.2 which already talked about expropriation so as to understand exactly where expropriation without compensation was permissible. The Ad Hoc Committee should look at the role of courts. The Minister wanted the Committee to look at whether bringing in the courts upfront did actually assist the role that the courts should play in expropriation matters. She believed the Ad Hoc Committee should provide guidance on the Amendment of the Expropriation Act of 1975, which was being dealt with by another Portfolio Committee.

The Minister declared that those were her opening remarks and the Department would make a technical presentation.
 

Discussion
The Chairperson stated that she had not just given opening remarks but had empowered the Committee with enough information and Members now knew where the challenges lay. The negative things that the Committee Members had said or done was because of the lack of information and now she had provided sufficient information and her presentation was on record and everyone knew what her expectations of the Committee were. The Minister did not have to stay in the meeting any longer as she had done her part.

Mr Shivambu interjected, stating that it would be a good thing for the Minister to remain and answer questions.

The Chairperson accepted his position but explained that she did have another engagement.

Minister Didiza said that she would answer questions before leaving if the questions were put at that point.

The Chairperson cautioned that he would accept questions of clarity only.

Mr Horn noted that the Minister had also referred to the High Level Panel Report which had said that the enabling legislative framework to achieve the constitutional ideal of equitable access to land was not sufficient, or rather missing. Had the Department done anything to fix that while the Constitution was being amended? Or would the country still have the situation where the legislative framework was absent once the Constitution had been amended?

Mr Shivambu asked the Minister to talk to the advertisement that had been placed by the Department to lease land. He asked the Minister to discuss the leasehold model in which the state retained custodianship instead of giving freehold titles. People rented land to those who had owned it before or they used that land as collateral to borrow very little money from banks. He was trying to locate some of the agreements in a clearer context.

The Minister admitted that the law of general application had been a weakness but in response to the Panel report, the Department was putting a  legislative framework in place so there would not be a vacuum when section 25 was amended. Two of the High Level Panel Commission Members had drafted legislation but it was not their job to do so. Legislation had to be drafted by either the relevant Portfolio Committee or the relevant Department.

She informed Mr Shivambu that the previous year, the state had begun releasing land in state hands by leasing it. She believed that it would be necessary to have a multiplicity of land holding formats in SA. Tenure reform would result in a multiplicity of tenure possibilities in SA. Currently there were usufruct rights and customary rights. Customary law had protected community land but the challenge was that had not been codified. The state was a trustee of traditional land that was managed and administered by the communities on a daily basis. Looking at African continent, she could see nothing wrong in community land as it was resilient. The Department needed to codify the tenure system to ensure that it was on a par with other forms of land usage.

The Minister added that in terms of usufruct rights, a 30 leasehold enabled person to get a loan to invest but removed the burden of a mortgage. However, others might want freehold systems and so all forms had to be retained.

Mr Shivambu thanked the Minister for the advice regarding the deletion of section 25 (3), which he would assure her would be deleted.

The Minister apologised for leaving but she had another engagement.

The Chairperson said the Committee would, in future, keep proper minutes so there could be no confusion.

Presentation by the Department of Agriculture, Land Reform and Rural Development (DALRRD)
Adv Sello Ramasala, Head: Legislation Development Unit, DALRRD, led the presentation. He said that the Minister had covered all areas on the slides and had provided additional information on challenges and solutions.

He stated that the following were the challenges that the State had encountered in land reform in general:
-The  application of the Expropriation Act, 1975, was premised on market value compensation;
-Compensation provisions in the 1975 Expropriation Act were not aligned with section 25 of the Constitution;
-There was no developed jurisprudence on the meaning of just and equitable compensation;
-The weighting of the factors in section 25 (3) remained a challenge;
-The current expropriation process was cumbersome and costly and at the mercy of land owners.

Adv Ramasala stated that ensuring the right to EWC would assist the Department and also listing the circumstances in section 25.3 in which land could be expropriated without compensation. The Department would engage with the Auditor-General to explain the principles and see how the Department was to arrive at those circumstances. It was probable that the Department would need clarity as to how those circumstances should be interpreted.

Regarding the Amendment Bill, he said that there was an issue around the role of the courts, especially the court’s involvement in determining particular circumstances upfront, and in determining compensation. Those two stages were within the realm of the Executive as the court would already have tainted itself by its involvement in policy. He believed that the Ad Hoc Committee should remove the role of the courts and that the courts should only deal with disputes.

Discussion
Ms Lesoma pointed out to the Chairperson that the presenter had concluded.

The Chairperson apologised on behalf of the Committee as it had not been clear what was expected from the Ad Hoc Committee. The Minister and Department had now informed the Committee as to what they expected of the Committee and the Committee now knew what to do. Going forward, the Committee would only be dealing with the draft Bill and not with peripheral matters.

Presentation by the Office of Constitutional and Legal Services
Ms Talana Halley-Starkey, Legal Advisor, presented on behalf of the parliamentary Office on Constitutional and Legal Services (OCLS). She stated that her presentation outlined the various themes presented during oral submissions by organisations during the past week. The presentation was divided into 9 focal areas that had been raised by individual presenters. The OCLS had responded to the legal issues and not the policy matters that were raised as that was beyond its mandate. Similarly, the OCLS had not responded to any political debates of ideology that might have been raised during the oral submissions.

Ms Halley-Starkey reminded Members that on 4 March 2021, the OCLS had presented to the Committee its responses to the written submissions and had at the time suggested that amendments be made to the 18th Constitutional Amendment Bill that related to:
-A definition for land reform (i.e. linking it to subsection 8 of section 25).
-Clarifying the role of the courts.
-Correcting the memorandum of objectives.
Instructions had also been sought in respect of removing “improvements on land” and in respect of expanding, deleting or retaining subsection (3A).

The Legal Advisor addressed the following points that had arisen during the oral submissions:
-Was it implicit in s25 of the Constitution that the amount of compensation may be nil? The CLSO response was that it was implicit, but the Amendment was a result of a policy decision to make that which was implicit, explicit.
-The Amendment exceeded the mandate. The CLSO stated that depending on changes the Committee wanted to introduce, the Committee might need to request the House of Assembly to extend the mandate.  
-The Amendment was unconstitutional, i.e. fraus legis facta. The CLSO’s response was that section 164 said only the Constitutional Court might determine constitutionality. However, the Basic Structure Doctrine stated that Parliament could amend but not replace. CLSO did not believe that the Amendment changed the Basic Structure Doctrine.
- The term “without compensation” vs compensation where the amount payable was nil. There were technical legal reasons why the wording “without compensation” would bring the Basic Structure Doctrine into play. Care had to be taken with the wording.
-Remove “improvements” in the Amendment. CLSO recalled that originally improvements were not included. It was recommended that improvements be removed.
-Role of the Courts. CLSO recommended that the courts should not be only decision maker, nor was the Minister the only role player. The Department was the initial decision maker and the courts could step in if an agreement could not be reached.
-Should circumstances be included? It was a policy decision whether to include circumstances or not. The Expropriation Bill had to include the circumstances.
-International Law. The international principles were being applied as internationally expropriation required compensation.
-Suggested Wording - details were contained in Annexure A of the OCLS document.
-The Amendment and the Expropriation Bill. The Expropriation Bill could still be aligned once the Amendment had been approved.
- Changing of the date from 1913 would be a policy decision and required a full parliamentary approval.

Discussion
The Chairperson invited questions of clarity.

Ms Lesoma thanked the legal advisor and the Minister. She noted that DPWI had not given a presentation. When would the Department be doing so as there were time constraints?

Mr Horn requested clarity on the statement that the Amendment itself did not constitute a legal right. He asked for an explanation in respect of section 7 of the Bill of Rights and sub-section 25 (7) of the Constitution.

Dr Mulder stated that the presenter had referred to the Basic Structure Doctrine and asked how section 25 could be seen as a narrow endeavour. Subsection 25 (8) went beyond land reform to water and related reform. Subsection 25 (1) linked to the limitation of rights, so it was not in isolation. Ms Halley-Starkey had offered to share her international research and he asked for a copy of that research.

Mr Shivambu detected very problematic notions from the legal advisors. They were even suggesting that there were certain constitutional amendments that the Committee could not make. He did not think that that was proper. If proper process was followed, Parliament was permitted to change the Constitution if two thirds of Parliament and six provinces so decided. There was nothing cast in stone in the Constitution. If the majority could not change the Constitution, it meant that there was a dictatorship. It was also problematic that they could not change other sections of the Constitution. The Minister had provided evidence that sub-section 3 was problematic because the majority of the colonial settlers had not acquired land; they had inherited stolen land.

An altercation ensued between the FF+ and EFF Members. The Chairperson stated that Mr Shivambu should not be impeded. He could speak his mind.

Mr Shivambu said it was a futile exercise if they were not changing the sub-section relating to 1913, etc. It was the wrong process. When the EFF had tabled the motion and a Constitutional Review Committee was established, that Committee had had to consult but it also had to look into land tenure. So where had the limitations come from? The process had been hijacked by the Legal Services Office and re-routed to achieve something else! The decision in Parliament had been to change the Constitution in order to repossess land without compensation. Any attempt to reroute the process was entirely racial, problematic and had to be investigated to find out where it had come from. All the submissions had been handed in and so why was the Constitution not changed? The legal office had infiltrated the process and it had to be rejected.

Ms Lesoma said that the Chairperson had logged off. She thought that the system had kicked him out. She requested the Secretary to get the Chairperson back.

The Secretary indicated that the Chairperson was reconnecting.

Several minutes of silence prevailed.

The Chairperson reconnected.

Adv S Swart (ACDP) said that just because a Member did not agree with a legal opinion, the Members should not cast aspersions such as “infiltration’ about the parliamentary Legal Services. He wanted to protect the Legal Services and reject any allegations of ‘infiltration’. Another opinion could be obtained but he wanted to protect the legal services and asked that Members not make accusations of ‘infiltration’ as suggested by Mr Shivambu.

Adv Swart stated that he wanted to ask about the role of the courts. There were two issues regarding the role of the courts: the decision to expropriate and the amount of compensation. There had been various views in that regard. In the opinion of the Legal Advisors, did it not impact on section 34 of the Constitution that allowed access to the courts for everyone to dispute any decision and that would include an administrative decision to expropriate as well as the amount of compensation? He believed that everyone was in agreement that the right to access a court for any dispute was a right and he was sure that any Constitutional Amendment should allow that. A constitutional Amendment that did not do so could prove unconstitutional if the procedure had not been followed and certain issues were problematic. The court decisions, quoted by the Legal Advisor, made it clear that there were grounds for declaring an Amendment unconstitutional. He suggested that Members look at such court decisions, although it was arbiter in certain decisions.

The Chairperson reminded Members that 100 lawyers would give 100 opinions, and political parties were entitled to consult their own lawyers and when the parties returned, they could debate based on the advice of their own legal advisors. There was no need to fight over what parliamentary Legal Services was saying as it was their opinion.

Mr P Moroatshehla (ANC) wanted to clarify a point. The Committee should not discuss the legal input of the constitutional legal expert. They had given their view and the Members should consider their views in the Committee’s own meeting.

Ms Lesoma asked again about a meeting with DPWI.

The Chairperson stated that questions should be questions of clarity so that the Members could go back to their principals and request an opinion from the party lawyers.

Ms Lesoma asked again about DPWI.

The Secretary stated that DPWI had requested an extension as they needed to prepare and their Minister had not been available that week.

The Chairperson suggested that a meeting with DPWI be arranged for the following week.

Mr Shivambu agreed to meet the following week but because of the vitality of the process, he requested that there be a physical meeting to avoid electronic cut-offs, etc. so that the Members could deliberate openly. It could be held in Gauteng or Cape Town. There had to be a quality outcome from the meeting.

The Chairperson said he would consider it.

Dr Mulder asked if the legal services would respond to his questions.

Adv Charmaine van der Merwe, Senior Legal Advisor, OCLS, responded to Mr Horn in respect of how the Amendment was not, in itself, a limitation of rights.  Members had to keep in mind that they were not dealing with national legislation that flowed from the Constitution but with legislation relating to the Constitution itself. Section 36 was relevant to national legislation. Section 7(3) did refer to the Bill of Rights but a number of rights in Chapter 2 had their own requirements and criteria entrenched in them. The Bill was not affecting section 36 and therefore not section 2, as the Bill was simply taking what was raised as a concern, and that was that there was no clarity as to whether an offer could be made by the executive or a decision made by the courts in the amount of  R0 when property was expropriated. The Bill did not change the Constitution and it was not national legislation and so section 36 did not come into play. It was true one had to bear in mind the Basic Structure Doctrine when the Constitution was being amended.

Adv van der Merwe informed Mr Shivambu that it was for the Committee to decide what to accept and what not to accept and the Committee would make up its own mind, but it was the function of the parliamentary Legal Services to advise the Committee on constitutionality and ensure that all Bills would pass constitutional muster. If the Bill was passed by the National Assembly and passed by the NCOP and assented to by the President and was then take to the Constitutional Court with a concern about its constitutionality, the OCLS had to be able to say that it had assisted the Parliament to pass a Bill that would pass constitutional muster.

She agreed that Parliament could amend the Constitutional but pointed out that there was a Basic Structure Doctrine and it would be amiss of the OCLS not to bring the Committee’s attention to the doctrine. The Committee could say it was not applicable, but it had to consider the doctrine.

Adv van der Merwe admitted that OCLS were not the procedural experts in Parliament and the Legal Advisors would have to consult the NA Table staff but the view of OCLS, when looking at the Resolution establishing the Committee, one had to bear in mind that the Resolution was based on the report of the Constitutional Review Committee and the Committee had recommended that Parliament amend section 25 of the Constitution to make the implicit about expropriation without compensation, explicit. That had to be borne in mind. That resolution encapsulated the mandate of the Committee. That did not mean the Committee could not go further. The Committee could go further, but in the view of the Legal Services, the Committee had to approach the NA for permission to extend the mandate before it did so.

Regarding the role of the courts, she agreed with Adv Swart but the proposed Amendment did not remove the courts from the process. Section 25(2)(b) acknowledged the role of the court. By including the words the courts in the proviso of section 25(2)(b), people were assuming that only the courts could make the decision. That was not the mandate of the House of Assembly and OCLS was proposing an amendment in order to remove the misinterpretation of that subsection.

Ms Halley-Starkey agreed to circulate the international research document. She apologised because it appeared that she was not sufficiently clear when explaining the Basic Structure Doctrine. Reform was the mandate of the Committee and the Amendment reflected that. The Amendment did not affect sub-section 8. The Amendment was narrow, not wide and therefore did not impede the Basic Structure Doctrine as it was not a fundamental and far-reaching change. They were not bringing in any new features. The Amendment was making clear what was already there, so it did not affect the “Basic Structure Doctrine”.

The Chairperson thanked the Members and stated that the purpose of the meeting had been met. The Committee had received presentations by the Minister and the Legal Services and they were clear. What Members thought about the presentations was a separate issue.

He proposed that Mr Xaba put the scope of the mandate in writing so that the Committee did not exceed its mandate in future meetings. The input by the Minister and the Department was available and the Committee would meet with DPWI the following week. Minutes of all meetings had to be finalised and approved at the next meeting so that all communication was based on something that the Committee had agreed upon. If there were minutes, it was possible to check everything against the minutes. The advised report had to be presented. He reminded Members that the secretariat had asked for Mr Xaba to assist with the report.

He requested that Members go back to their principals to seek a mandate so that after the DPWI had presented, the Committee could look to finalise the Amendment.

Ms Lesoma agreed with the Chairperson’s summary of the situation.

Dr Mulder asked how the Committee was going to deal with Mr Xaba’s interpretation of the mandate once he had finalised his interpretation of the mandate. How would the Committee deal with it if there were differing opinions?

The Chairperson said that Mr Xaba’s report would be circulated so that everyone agreed to the same mandate.

Closing remarks
The Chairperson noted that the Committee had completed its work for the day.

The meeting was adjourned.