The ANC is determined to use Parliament as a mere rubber stamp for its December 2017 decision to amend Section 25 of the Constitution to allow for expropriation without compensation EWC.
Parliament continues to go along with this and to pretend that it is doing a proper job on the most important legislative change since 1994. The ANC's stratagem has always been to divide the Section 25 amendment process into three stages. In the first, it would get the Constitutional Review Committee (CRC) to recommend a constitutional amendment.
This would pave the way for the second stage, in which a parliamentary ad hoc committee would draw up a bill with the necessary wording. This would usher in the third stage, in which the National Assembly and National Council of Provinces would endorse the ad hoc committee's draft bill.
However, when the CRC began its work in 2018, it was soon overwhelmed by the high number of written submissions it received. Some 630 000 written submissions were sent in, of which some 75% were opposed to an EWC constitutional amendment as an external agency brought in to analyse these documents told the CRC.
The MPs serving on the CRC had a clear constitutional obligation to read and consider these submissions, but lacked the capacity to do so. Even after about 180 000 supposedly 'duplicate' or defective submissions were excluded, MPs on the CRC would have needed nearly 940 days to give even one minute's consideration to each of these documents. The CRC's solution was to sidestep its constitutional obligations. Instead of examining all valid submissions, the CRC looked at a sample of around 400 submissions and claimed this was enough.
This high volume of evidence-based documentation should have far outweighed the brief comments of the roughly 2 500 people who spoke at the provincial public hearings. Having steadfastly ignored almost all the arguments and evidence put before it, the CRC recommended in November 2018 that Section 25 should be amended. Parliament swiftly accepted this recommendation and appointed an ad hoc committee to begin drafting the necessary text.
Given the CRC's failures on public consultation, AfriForum tried to obtain an urgent interim interdict in December 2018, preventing Parliament from accepting and acting on the CRC's flawed recommendation. However, its application was rejected by the High Court in Cape Town on the basis that the matter was not sufficiently urgent. AfriForum returned to the High Court in September 2020 for the hearing of its main application.
Here, it argued that the procedural flaws in the CRC's work were so grave that its pro-EWC recommendation should be set aside.
Parliament and the ad hoc committee responded that AfriForum's application had been overtaken by recent events and was now therefore moot. In his affidavit opposing the AfriForum court challenge, Dr Mathole Motshekga, chairperson of the ad hoc committee, added that the process of amending Section 25 had "moved far beyond the factual matrix" AfriForum was seeking to raise. This "rendered the relief sought by the organisation to be of no consequence".
If the High Court accepts this argument, the major flaws in the CRC's work will be brushed aside and South Africans will again be deprived of a swift judicial remedy against the defects in the EWC legislative process. The ad hoc committee has also shown a disdain for proper public consultation on the Draft Constitution Eighteenth Amendment Bill the draft bill it has drawn up. This draft bill allows nil compensation to be paid for both land "and the improvements thereon" in circumstances it declines to specify. Instead, these circumstances will be decided by Parliament from time to time.
The ad hoc committee gazetted this draft bill for public comment early in December 2019, with a deadline of 31 January 2020 for written submissions. As most of this period fell over the festive season, the committee extended its initial deadline to the end of the following month after mounting public pressure. It remains uncertain how many written submissions were received.
Provincial public hearings on the draft bill must also be completed, while oral presentations in Parliament have yet to be heard. The ad hoc committee nevertheless plans to decide on the wording of the draft bill either by the end of November, when Parliament goes into recess, or by the end of December, when the committee's mandate expires. Its overhasty approach is at odds with the accountability the Constitution requires.
Moreover, the CRC defects are not moot. These defects go to the very root of the Parliamentary process. The CRC defects have compromised the entire legislative process, and the Constitutional Court will have to take account of this when the bill is brought before it.
Dr Anthea Jeffery is Head of Policy at the Institute of Race Relations
*The new Expropriation Bill, which was recently published and is in line with the Constitution, is separate from the process to investigate amendments to Section 25 of the Constitution to allow for expropriation without compensation.
