Jan Gerber, courtesy News24
On 13 November in parliament, during the first day of the Joint Constitutional Review Committee deliberating a draft report on the possible review of Section 25 of the Constitution to allow expropriation of land without compensation.
Court action to prevent Parliament from amending the Constitution to allow for expropriation without compensation seems imminent as parties opposing an amendment to section 25 all sang from the same hymn sheet when they presented their recommendations to the Joint Constitutional Review Committee on Tuesday, with “we reserve our rights” as the chorus.
A member of each party presented their observations and recommendations on whether section 25 of the Constitution should be amended to the Joint Constitutional Review Committee on Tuesday.
While a heated meeting was expected due to the strong, partisan views on the matter and tensions having been simmering at the previous meetings, committee co-chairperson Stan Maila prevented hostilities by ruling that members would not be allowed to “punch holes” in each other’s presentations.
“I will be your punching bag,” he said.
The committee’s staff will prepare a summary of all the views expressed at Tuesday’s meeting, which will be discussed Wednesday.
The parties opposed to an amendment – the DA, Cope, ACDP and IFP – all questioned the procedural soundness of the review committee’s work, while those supporting an amendment said nothing was wrong with the committee’s procedures and an amendment was imperative to redress historical injustice and bring dignity to all South Africans.
‘We have not fulfilled our constitutional obligation’
The manner in which the committee dealt with the hundreds of thousands of written submissions and that the high-level panel on key legislation, which made damning findings on the government’s land reform programme, wasn’t consulted were major concerns of those opposing an amendment.
ACDP MP Steve Swart said he was concerned that the committee did not consider the written submissions.
“In my view, it is not sufficient to allow members to look at the submissions,” he said. “I believe we have not fulfilled our constitutional obligation.”
He said any possible review of section 25 must consider the impact on food security, banks, commercial farmers and emerging farmers.
He said the ACDP does not support an amendment because it isn’t necessary.
He rejected the call for the nationalisation of land and said the committee should consider the high-level panel’s report.
“The ACDP recommends that the Constitutional Court be approached to provide clarity on the full parameters of section 25,” he said.
“We share the widely held view that section 25 does not present an impediment to land reform, but are of the opinion that the court will provide much needed clarity, and thereby obviate the need for a constitutional amendment.”
‘No other way’ but expropriation without compensation
NFP MP Sibusiso Mncwabe said Parliament must allow section 25 to be amended, and this must be done before the end of Parliament’s current term.
He said government had tried to address land reform in an amicable way.
“More than 20 years of democracy, there is no other way (except expropriation without compensation).”
DA MP Annelie Lotriet said her party was making observations and recommendations “under protest”.
She said there were “errors in procedure wilfully committed by the committee and some of its members”.
“The processes have not been finished and are potentially compromised,” she said.
She said the issue of land was extremely important and sensitive, and a rushed process where shortcuts have been taken would not do it justice.
“The arbitrary disregard of some submissions remains a stumbling block,” she said.
“Extremely worrying for the DA is that this process had a predetermined outcome.
“The amendment will not pass constitutional muster,” she said.
IFP MP Elphas Buthelezi said his party’s view was that the Constitution should not be amended.
He said it was not the Constitution that was failing on land reform, it was the state.
“The matter of land is an urgent matter,” he said.
He pointed out that everyone who made submissions to the committee, except AfriForum, agreed that there should be land reform.
He said there was very little support for the idea that the state should be the custodian of land.
He said at the public hearings those who opposed an amendment were shouted at, and that it took courage for them to express their views. He said there was political interference at one of the hearings when a party – he did not say which – wanted to prevent people from speaking because they were white.
UDM MP Mncedisi Filtane said the only possible solution to the unequal distribution of land ownership is a constitutional amendment.
“The process has been meticulously observed,” he said, adding that a court challenge would surely fail.
‘Legislators shouldn’t abdicate responsibility to judiciary’
He said the Constitution does not explicitly empower the state to expropriate without compensation, which is a “serious and very obvious” omission.
He said those objecting to an amendment were hellbent on perpetuating poverty.
“We cannot and should not as legislators abdicate our responsibility to make laws to the judiciary,” he said in response to Swart’s recommendation that the Constitutional Court should be asked for clarity on section 25.
He said members had the opportunity to read the written submissions.
He said people without land don’t have the means to go to the Constitutional Court.
Cope MP Deidre Carter said the committee did not comply with the law due to the “arbitrary omission of some submissions”.
She said the state did not give meaningful effect to section 25.
She said the high-level panel’s report was an official document of Parliament, and she couldn’t understand why the panel wasn’t called before the committee.
‘The whole process is flawed’
“We agree the injustices of the past must be rectified, but we do not support expropriation without compensation.”
She said the committee must also interact with the high-level panel and surveyor general. If not, Cope also made its recommendations and observations under protest.
Carter said there was no rational reason to amend section 25.
FF Plus MP Corné Mulder said there was no room for mistakes when making changes to the Constitution, and the committee had made many errors.
“The FF Plus reserves its rights,” he said. “We think that the whole process is flawed.”
He also referred to the fact that the committee didn’t receive a report about the written submissions.
“If we seriously want to address the land issue, which I believe we should do, we have to do it properly,” Mulder said.
He said it shouldn’t be rushed through before next year’s election.
He referred to President Cyril Ramaphosa’s announcement in July that “the ANC will, through the parliamentary process, finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be affected”.
“This whole process as far as we’re concerned is a charade and therefore flawed,” Mulder said.
He said the decision had already been taken by the ANC national executive committee.
EFF leader Julius Malema said not a single white person supported expropriation without compensation, which indicates that it is not a “class thing” but has everything to do with race.
“Whites do not want land to be released because it is what they believe is their privilege,” he said.
Referring to the incident that Buthelezi mentioned earlier about white people being prevented from speaking, Malema said there “were serious threats made in the meeting by white people”.
Responding to the parties who objected to the process, Malema said: “Reserve your rights, we’ll also reserve our rights to defend this thing.”
He said the EFF would bring the “best legal minds” and would be on the same side as Parliament for the first time.
He also defended Ramaphosa’s statement in July, saying the president stated his party’s position, as other parties had done.
“If you reserve your rights to tell the judge such things, it will be an abuse of the court process.
“There was not a single drop of blood. It will be incorrect for anyone to suggest this was not a smooth process.”
Food security, agricultural reform
ANC MP Vincent Smith, who previously was co-chair of the committee, said the process was never intended to be a referendum, it was about the argument.
He said the committee was asked to find out if the Constitution should be amended.
He said the ANC wanted to make it “totally unchallengeable that expropriation without compensation is but one measure” to effect land reform.
He agreed with Filtane that it should not be a matter for the courts.
“The high-level panel doesn’t exist anymore, therefore we cannot call it,” he said, pointing out that one of the panel’s members, Aninka Claassens, director of the Land and Accountability Research Centre at the University of Cape Town, had appeared before the committee.
“They don’t need to be physically here, some of us can read,” he said.
He said whatever happens, food security and agricultural reform shouldn’t be tampered with.
Smith said it was a myth that food security and investments would be negatively affected by land expropriation without compensation.
“It is about restoring the dignity of our country,” he said.