The National Assembly's Ad Hoc Committee to amend Section 25 of the Constitution

7 March 2019

As a consequence, an ad hoc committee to amend Section 25 of the Constitution was established.  It consists of eleven voting members, six from the ANC, two from the DA, one from the EFF, and two from smaller parties, though there will be as many again non-voting members.  This committee has now met three times: on 12 and 21 February and 1 March 2019.  This brief sets out what has been achieved so far.

THE COMMITTEE’S TIMETABLE

The first meeting, held on 12 February, elected Ms Thoko Didiza as chairperson of the committee.  The second meeting on 21 February approved a draft timetable for its work.  It can be summarized as follows:

Week 1, starting 18 February:  Meeting to consider the legal requirements for a constitutional change[1] and to discuss the committee’s work programme. (Held on 21 February.)   

Week 2, starting 25 February:  Meeting to consider the Constitutional Review Committee’s report and a report from the government lawyer on the case brought by Afriforum in the Western Cape High Court in November 2018[2].  (Held on 1 March).  Dr Hall of the Institute for Poverty, Land and Agrarian Studies also made a presentation to this meeting[3]. 

Weeks 3 and 4, starting 4 March:  Submissions from invited parties will be received, and the committee will develop a policy framework to guide the drafting of legislation.

Week 5, starting 18 March:  The committee will compile instructions to lawyers responsible for drafting legislation.

Week 8, starting 8 April:  The bill drafted by lawyers will be considered and the report to the National Assembly will be drafted.  Both the draft legislation and the draft report will be sent to the National Council of Provinces, the House of Traditional Leaders and the provinces.  It will also be published for general comment.  Assuming this is done by 12 April, the 30 day consultation period, required by Section74 (5) of the Constitution will end on 12 May.  

Weeks 13, 14 and 15 starting 13 May:  Consideration of comments, finalisation of report and draft legislation, to be submitted to Parliament by 7 June.

There is a puzzle here.  Section 49(4) of the Constitution provides that:

The National Assembly remains competent to function from the time it is dissolved or its term expires, until the day before the first day of polling for the next Assembly.

Since the election will be on 8 May, the last day on which the National Assembly can possibly conduct business is 7 May.

Moreover, Rule 351 of the Rules of the National Assembly states:

Lapsing of business on last sitting day of annual session or term of Assembly or when Assembly is dissolved

(1) All motions and all other business, other than Bills, on the Order Paper on the last sitting day of an annual session of the Assembly, lapse at the end of that day.

(2) All business before the Assembly or any Assembly committee on the last sitting day of a term of the Assembly or when the Assembly is dissolved, lapse at the end of that day.

But, according to the committee’s timetable, the public consultation process will not be completed by 7 May[4], let alone the presentation of a report and draft legislation to the National Assembly.  The ad hoc committee can only get as far as agreeing on a draft report and a draft legislation before the end of the fifth parliament.  The second puzzle is that no-one on the Committee pointed out the problem during the 21 February meeting.  

National Assembly records of the proceedings of the ad hoc meeting would be available to the sixth parliament.  Depending  on the interpretation of the term ‘lapse”, it may be open to the government, or a newly constituted ad hoc committee or a portfolio committee to continue the process early in the life of the new parliament, by publishing the draft legislation for comment then.  Or it may be argued that the process now assigned to the ad hoc committee would have to start all over again.

Justice Albie Sachs is reported[5] as urging that the constitutional change should not be rushed.  Indeed, it can’t be.

Charles Simkins is Head of Research at the Helen Suzman Foundation. 

This article first appeared as an HSF Brief. 

[1] A power point presentation on this matter is available on the Parliamentary Monitoring Group’s website, attached to its record of the 21 February meeting

[2]Afriforum made a two-part application to the Western Cape High Court in late November.  Part A was an urgent application to suspend the report finalised by the Constitutional Review Committee on 15 November and to interdict Parliament from acting on it.  This part of the application was dismissed.  Part B sought a declaration that the decision by CRC to adopt is report is constitutionally invalid and that the Court should provide a just and equitable remedy.  On Part B, the Court directed that the parties agree on a timetable in order to bring Part B before the Court.   This agreement has not yet been reached. The legal advice given to the ad hoc committee was that the Afriforum decision has no bearing on, and creates no impediment to, the work of the committee.

[3] A copy of the power point presentation is available on the Parliamentary Monitoring Group’s website, attached to its record of the 1 March meeting.  In it, Dr Hall makes the point that expropriation of land without compensation in some cases does not require a constitutional amendment, a view with which we concur.

[4] in which case, why start it?

[5] Business Day, 4 March 2019