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EWC: There may be more to the parliamentary process than meets the eye


Pam Saxby played a key support role in the National Peace Convention, Codesa and related political transition processes. Working for what recently became the Minerals Council SA, Saxby ran the minerals policy negotiation process, represented the industry in Nedlac’s development chamber, and reported on economic and labour policy discussions in what is now Business Unity SA. More recently, she monitored and reported on public policy for Legalbrief Today.

The intricacies and subtleties of what is actually happening around expropriation of land without compensation can appear to be Byzantine in their complexity. That is why paying attention to what is happening in parliamentary committees is important.

It’s a tedious business listening to audio clips of meetings held by parliamentary committees. But when it comes to understanding the process of amending section 25 of the Constitution to provide explicitly for expropriation without compensation as an instrument of land reform, for concerned South Africans those audio clips are a must. The Parliamentary Monitoring Group (PMG) generously provides open access to its recordings of proceedings in the ad hoc committee established by the National Assembly to initiate and introduce the necessary legislation – whereas information coming out of most other key National Assembly committees is restricted to subscribers.

A PMG clip on the committee’s 3 December meeting (its penultimate for 2019) is especially revealing. This is mainly because of a discussion on limiting the role of the courts to “right to review” when expropriating land and landed property in the public interest.

On Wednesday 22 January, in a media statement on its recent National Executive Committee (NEC) lekgotla, the ANC announced that the NEC had endorsed a recommendation “that the power to determine issues related to expropriation of land without compensation should reside in the executive”. As NEC member and chair of Parliament’s ad hoc committee, Mathole Motshekga, explained in an interview broadcast on eNCA the following day, this recommendation will be formally proposed to the committee after nationwide public hearings in February 2020 on the draft Constitution 18th Amendment Bill, which was released in December 2019 for public comment.

On Friday, in her capacity as the DA’s parliamentary caucus chair, Annelie Lotriet issued a statement denouncing the ANC NEC’s decision. Yet Lotriet was present at the 3 December ad hoc committee meeting and should not have been surprised. So were the DA’s Glynnis Breytenbach and Werner Horn, both of whom voiced their concerns, albeit in a somewhat light-hearted vein given that – by opening the discussion – Motshekga was playing devil’s advocate by his own admission. But it was the EFF’s Nthako Matiase who raised the issue when he said that, in his party’s view, “the state”, not the courts, should have the final say on whether land or landed property should be expropriated without compensation.

In all fairness, during a flurry of ad hoc committee meetings shortly before and immediately after the National Assembly went into recess in December, Motshekga repeatedly emphasised the importance of all political parties making submissions on ways to improve the draft Bill after the public participation process and ensuing parliamentary hearings. Presumably with that in mind, during Thursday’s eNCA broadcast he once again urged every party to make “substantive” proposals – nevertheless expressing the hope that, since “the president of the ANC” had “led the way” during the NEC lekgotla in making a recommendation limiting the role of the courts – other parties would “follow suit”.

During other ad hoc committee meetings, Motshekga has repeatedly voiced his concern that land hunger and related grassroots frustrations over the slow pace of reform could precipitate violence on an unprecedented scale, destabilising South Africa completely. During the committee’s 3 December meeting, he suggested that restricting the role of the courts to “the right to review” might “speed up” land expropriation, avoiding the lengthy delays for which government’s land reform programme has become renowned.

By emphasising the importance of ensuring as “peaceful” a process as possible, Motshekga appeared to be alluding to the potential such delays might have to trigger unnecessary conflict. The ANC NEC decision and Motshekga’s remarks during the eNCA broadcast probably need to be viewed in that context.

No responsible South African can afford to ignore or dismiss the possibility that increasing land hunger and the frustration associated with it could escalate into violent conflict should landowners perceived to have benefited under colonialism and apartheid then be perceived to be deliberately obstructing the land reform process. If the economy was in better shape and unemployment levels lower, especially among the youth, the situation might not be quite as volatile – although that’s debatable. Motshekga and other members of the ANC NEC know this. So does the EFF. But does the DA fully understand the dangers?

Meanwhile, not one of the opposition parties has commented – at least officially – on a Cabinet decision in December to approve the release of a revised draft Expropriation Bill for further consultation. At the time of writing (nearly six weeks later), it had yet to be published. However, given that a draft released in December 2018 spelt out the circumstances in which land and landed property might reasonably be expropriated without compensation, the revised version is widely expected to do the same. If it does, as enabling legislation and a general law of application, the revised draft Expropriation Bill will provide the information some opposition parties would like to see included in the draft Constitution 18th Amendment Bill (the Constitution itself being framework legislation).

Since the two proposed new statutes do seem to be inextricably linked, why is nobody talking about this? DM


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