The Ad Hoc Committee (the committee) responsible for drawing up a land expropriation-without-compensation (EWC) constitutional amendment bill (the bill) was supposed to meet last Friday to debate the wording of the bill on a clause-by-clause basis.
The wording in issue was that which had been gazetted for public comment in December 2019, before the Covid-19 lockdown began.
Instead, the Economic Freedom Fighters (EFF) presented the committee with a very different measure (the EFF bill, below *) which would:
allow EWC not only for land but also for ‘property’ in general, provided this is done ‘in the public interest’ or for ‘public purposes’;
make the state the custodian of all land (in addition to all water and mineral resources), also without compensation being paid; and
remove all provisions in Section 25 (the property clause) dealing with ‘just and equitable’ compensation on expropriation, including the courts’ capacity to decide what the amount of compensation should be.
According to the EFF, these sweeping changes are fully in line with the committee’s mandate, as set out in a motion adopted by the National Assembly on 6 December 2018. How valid is this view?
The National Assembly’s 6 December motion
In adopting its motion on 6 December 2018, the National Assembly was ostensibly seeking to comply with recommendations put forward by the Constitutional Review Committee (CRC) in November 2018 and then endorsed by both Houses of Parliament.
The 6th December motion begins, in paragraph (1), by ‘noting’ the CRC’s recommendation that Section 25 be amended to ‘make explicit what is implicit’ in the Constitution and so allow the ‘expropriation of land without compensation, as a legitimate option for land reform’.
The motion then goes on, in paragraph (2), to ‘establish an ad hoc committee…to initiate and introduce legislation amending section 25 of the Constitution’, and ‘have regard to the recommendations in the CRC report’.
According to the EFF, it is only what is contained in paragraph (2) that counts. This paragraph gives the committee a wide mandate to amend Section 25 in any way it thinks fit. It must ‘have regard’ to the CRC’s recommendations, as set out in paragraph (1), but it is not bound by them. The committee can therefore go far beyond ‘making explicit what is implicit’ in Section 25 and need not confine EWC to land alone.
What about the public’s contrary expectations?
Since December 2018, the public has repeatedly been assured that the committee’s mandate is merely to amend Section 25 to ‘make explicit what is implicit’ within it. Various legal experts have explained that it is already possible for ‘just and equitable’ compensation to be set at ‘nil’ where the land in issue genuinely has no market value – and that this is what the amendment bill will make clearer still.
South Africans have thus been led to believe that any changes to Section 25 will be minor, as the committee is confined to clarifying what is already implicit in the provision.
This message was further reinforced when the bill was published for public comment in December 2019, for the preamble repeated all the CRC recommendations set out in paragraph (1) of the National Assembly’s motion. This strengthened public perceptions that the committee’s mandate was simply to ‘make explicit what is implicit’ in Section 25.
The public was also repeatedly assured that it was only land that would be subject to ‘nil’ compensation and not property of any other kind. Considerable dismay thus resulted when the bill was gazetted, and it became clear that EWC was to apply to both land and any ‘improvements thereon’. This change was widely seen as a breach of the committee’s mandate to confine EWC to land alone.
How much do these public perceptions matter?
At the committee meeting last Friday, the EFF’s Nyiko Shivambu was scornful of the legal experts who had advised that ‘nil’ compensation was already implicit in Section 25. In Mr Shivambu’s words, the existing Section 25 very clearly requires the payment of compensation whenever property is expropriated.
‘It is a problematic notion to suggest that the current Constitution provides for expropriation without compensation [when] it does not,’ he said. In his view, this reinforces the need for the EFF bill with its clear enumeration of all the state’s EWC powers.
During last week’s committee meeting, the EFF repeatedly brushed aside objections that its alternative bill would exceed the committee’s mandate. That mandate is to ‘initiate and introduce’ legislation amending Section 25, as set out in paragraph (2) of the motion. According to the EFF’s Mbuyiseni Ndlozi, people cannot be ‘selective’ in referring to paragraph (1) instead, when ‘the entire resolution’ regarding the committee’s mandate is in fact contained in paragraph (2),
The EFF may be technically correct in its interpretation of paragraph (2). What this also means, however, is that the public has been fooled into believing that the committee’s mandate is limited by the wording set out in paragraph (1). Moreover, having sedulously promoted this perception – and induced people to rely on it right through the public participation process – the committee cannot now thumb its nose at all those who accepted its assurances in good faith.
As the Constitutional Court has stressed, the National Assembly and its committees have a constitutional obligation to ‘facilitate public involvement’ in the legislative process. In doing so, they must act ‘reasonably’ and give people a ‘meaningful’ opportunity to ‘know about the issues’ and have an ‘adequate say’ on the laws that are to govern them.
Lulling people into believing that only a very narrow change is being mooted – and then shifting at the eleventh hour to a sweeping set of amendments never previously submitted for public comment – cannot meet the requirement of reasonableness. On the contrary, it smacks of bad faith and a deliberate manipulation of the public participation process.
How has the ANC responded?
The ANC is sitting on the fence – but leaning strongly towards the EFF’s perspective. According to ANC chair Dr Mathole Motshekga, the committee’s mandate is ‘to make explicit what is implicit in the Constitution’. However, it can ‘keep this in mind’ as it works through any necessary changes to subsections 25(1) to 25(9), as the EFF proposes. In addition, it need not confine itself to the bill as gazetted, for this has always been a ‘compromise’ document simply intended to ‘kickstart the process’.
During last Friday’s meeting, Dr Motshekga repeatedly stressed that the committee is now dealing with the text of the constitutional amendment, which makes other ‘issues and debates’ irrelevant. Moreover, ‘it is not for the [committee] to stall the proceedings on the suspicion that it may or may not be exceeding its mandate’, he said. If Parliament in the end finds fault with its approach, it can always say so in due course.
Strong objections from the Democratic Alliance and the Freedom Front Plus were swept aside, opening the way for deliberations and decisions on amendments going far beyond the committee’s mandate as long publicly understood.
What Dr Motshekga has effectively advised, moreover, is that ANC and EFF members should get together to discuss their preferred wording and resolve any differences they might have. This, he suggests, will enable the committee to forge ahead with its deliberations on the changes needed to all the provisions of Section 25 when it meets again this Friday.
Whether there is in fact any significant disagreement between the EFF and the ANC remains to be seen. What the ruling party clearly wants – as ANC member Vuzumusi Xaba told the committee last week – is to find effective ways of ‘achieving the objective of having land without paying a cent’. And that, of course, is what the EFF wants too.
