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Constitution 18th Amendment Bill: Is Parliament putting the cart before the horse during expropriation without compensation process?

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By Pam Saxby
13 Sep 2021 1

Pam Saxby played a key support role in the National Peace Convention, Codesa and related political transition processes. Working for what recently became 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. She monitors and reports on public policy for Legalbrief Today.

Expropriation of land without compensation has become one of South Africa’s hottest political potatoes. But before the Expropriation Bill can be passed, the Constitution needs to be amended — the one can’t be done without the other. So, why are the two processes going ahead at the same time?

Now that the Constitution 18th Amendment Bill has been formally tabled and is on the National Assembly’s order paper under “further business”, a few facts need to be highlighted. No biased commentary or speculation. Just a few facts.

  • To be passed, the bill will require the support of two-thirds of the 400-member National Assembly, as most readers know. This means that, in addition to ANC representatives in the House, 37 opposition party MPs will need to vote in favour of the bill when the time comes. No speculation. Just the facts, remember?
  • If passed, the bill will amend section 25 of the Constitution (property rights) to explicitly provide for expropriation with nil compensation for land reform purposes in circumstances deemed just and equitable — as most readers also know. It will become the framework legislation within which enabling national legislation will then be used to implement what is envisaged;
  •  That enabling national legislation is expected to be the Expropriation Bill, which is now before the National Assembly’s Public Works and Infrastructure Committee. That’s because it deals with matters falling under the Department of Public Works and Infrastructure. When the committee has completed its work on the bill and it has been passed by the House, it will be sent to the NCOP;
  • If passed by that House and signed into law, the Expropriation Bill still can’t be implemented without regulations. These will need to be released in draft form for public comment;
  • Having concluded provincial public hearings on the bill, last week the National Assembly’s Public Works and Infrastructure Committee hosted a second round of oral representations in support of written submissions received from stakeholders when the Expropriation Bill’s public participation process began. The first phase was held in March, in tandem with oral representations on the Constitution 18th Amendment Bill;
  • At the time, this prompted Mathole Motshekga — in his capacity as chair of the ad hoc committee responsible for preparing the Constitution 18th Amendment Bill — to issue a media statement expressing concern that a parallel oral submissions process might be “putting the cart before the horse”. “Our process should inform what should be in the Expropriation Bill,” he said in the statement, undertaking to “write” to Public Works and Infrastructure Committee chair Nolitha Ntobongwana in the light of similar concerns “raised several times” during his committee’s hearings;
  • A Public Works and Infrastructure Committee statement released later that day tended to blame this procedural blunder on “the House chair of committees”, Cedric Frolick. Referring to the glitch as an “unfortunate incident” that should have been “avoided at all costs”, the statement conceded that parallel hearings “might have led to unnecessary confusion” and even “curtailed” the participation of some stakeholders in one or other process — hence the need for a second round;
  • Before Parliament announced its six-week pre-local government elections recess (allowing MPs to attend to constituency matters), the Public Works and Infrastructure Committee was planning to complete its work on the Expropriation Bill on 22 September;
  • These plans have been scuppered by the recess. According to Parliament’s media statement on the six-week break, “no approvals of oversight and ordinary meetings shall be granted” and “only committees with… constitutional deadlines will be granted permission to meet”;
  • Until the National Assembly has determined the fate of the Constitution 18th Amendment Bill, South Africans will be left in limbo;
  • If passed, it will then need to be sent to the NCOP, where it will require the support of “at least six provinces”. That’s because it amends section 25, which is part of the Bill of Rights; and
  • Once the Expropriation Bill has been passed by the National Assembly (requiring the support of only 50% of the House as an ordinary bill), it will need to be subjected to a robust public participation process in all nine provincial legislatures. The number of provincial mandates in favour of the bill will determine if it is passed by the NCOP and if any changes are made.

These are the facts. There’s still a long road ahead.

But what will become of the Expropriation Bill if the Constitution 18th Amendment Bill isn’t passed? Nobody seems to have asked. And what will become of the hopes and dreams of people whose expectations of imminent access to land were raised during all the provincial public hearings? Nobody seems to have asked that, either.

Here are some more facts.

  •  Since the Constitutional Review Committee held provincial hearings in 2018 on the merits or otherwise of amending the Constitution to expressly allow land expropriation with nil compensation, there have been two more rounds of public consultations. One on the contents of the draft Constitution 18th Amendment Bill in 2020, and another this year on the contents of the Expropriation Bill; and
  • According to parliamentary committee media statements on each separate process, most participants were far from interested in the bills’ contents. They simply believe land expropriation with nil compensation is long overdue, that it’s fundamental to poverty alleviation and economic empowerment — and that it’s the only way to address past injustices. Finish and klaar.

So, what will happen if the Constitution 18th Amendment Bill isn’t passed by the National Assembly? DM

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