Section 25 of the Constitution – What happens next?

20 August 2018

THE REMAINING TERMS OF THE FIFTH PARLIAMENT.

Parliament is currently in the third term of 2018, which ends on 14 September. 

The fourth term of 2018 is set down to take place between 9 October and 30 November, an eight week session.

The first term of 2019 is scheduled for 7 February until 26 March, an eight week period[1].

The Fifth Parliament comes to an end on 8 May 2019. All unfinished business lapses then.

THE CONSTITUTIONAL REVIEW COMMITTEE.

Parliament resolved in 27 February 2018 that the Committee review Section 25 of the Constitution, and other clauses where necessary, to make it possible for the state to expropriate land in the public interest without compensation. The Committee was mandated to propose the necessary Amendments to the Constitution, where necessary. The Committee was instructed to report back to Parliament by 30 August 2018[2].

The Parliamentary Monitoring Group reports that deliberations on the public hearings and written inputs are set to occur between 4 and 7 September 2018 with the adoption of the report expected on 11 September 2018, where the Committee will make a recommendation to both Houses of Parliament for approval[3].

The Constitutional Review Committee is a joint committee of the National Assembly and the National Council of Provinces. It has 26 members, 14 from the ANC, 4 from the DA, 3 from the EFF, 2 from the IFP, and one each from COPE, the NFP and ACDP (none from VF+).

THE GOVERNMENT POSITION

On Tuesday 31 July 2018, the President, speaking on behalf of the ANC, said that it 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 effected[4].

THE REQUIREMENTS FOR AMENDMENT OF THE CONSTITUTION.

Section 74 of the Constitution sets out the requirements for amendment of the Constitution. Section 74(3) obliges the person or committee intending to introduce an amendment Bill to publish in the national Government Gazette, and in accordance with the rules and orders of the National Assembly, particulars of the proposed amendment for public comment, at least 30 days before introducing the Bill to Parliament. 

Section 74(6) requires the person or committee introducing the amendment Bill to submit any written comments received from the public and the provincial legislatures to the Speaker for tabling in the National Assembly, and (where relevant, as it will be in this case) to the Chairpersion of the National Council of Provinces for tabling in the Council.

Section 74(7) provides that an amendment Bill amending the Constitution may not be put to the vote in the National Assembly within 30 days of:

(a) its introduction, if the Assembly is sitting when the Bill is introduced; or

(b) its tabling in the Assembly, if the Assembly is in recess when the Bill is introduced.

As is well known, an amendment to Chapter 2 of the Constitution, within which Section 25 is located, requires a two-thirds majority in the National Assembly, the support of six provinces within the National Council of Provinces, and Presidential assent[5].

ASSESSMENT

What we can expect is a progressive revelation of political positions. There will be audio-visual records of the Constitutional Review Committee’s deliberations, and documentation associated with them. The President’s announcement constrains the ANC members of the Committee to pave the way for the introduction of a constitutional amendment, and their majority on the Committee makes it possible for their view to prevail. However, the ANC will have to contend with members of the Committee who oppose a constitutional amendment as well as those who believe it unlikely that the amendment will go as far as they wish. And it should not be forgotten that land is a contentious issue within the ANC itself. The debate about it at the ANC conference last December was, by all accounts, rowdy.

When making their contributions to the deliberations, all members of the Committee will have an eye, both eyes probably, on the 2019 election. The deliberations and the subsequent report will be of general public interest. They will need careful scrutiny by individuals and organizations concerned about land reform.

It was odd of the President to commit the ANC in advance of parliament’s decision about the Constitutional Review Committee’s report, and it would be odder still, in contradiction to the commitment to the parliamentary process, and possibly interdictable, to publish an intended Bill in the Government Gazette before parliament’s decision. If the Parliamentary Monitoring Group’s schedule is accurate, it will be possible for a parliamentary decision to be taken before the end of the third term, but only just. Any slippage will mean that the decision will be deferred until the fourth term.

When the promised constitutional amendment is gazetted, we shall know precisely what the government’s intention is, and the debate will move to a new level. Interested parties will want to avail themselves of the opportunity for comment. Two requirements will impose themselves at this stage. The process of dealing with a proposed constitutional amendment must be legally impeccable. Otherwise, it runs the risk of becoming mired in litigation. Also, any amendment needs to be consistent with the rest of the constitution if knotty jurisprudential problems are not to arise in the future.

Either a constitutional amendment will be passed by the Fifth Parliament or it will not. Consider first the case that it is. The government will require the support of at least 18 non-ANC members to muster the necessary support in the National Assembly. The EFF, which has 25 members, is able to provide the necessary votes. Also, the process has to be fitted in to the crowded agenda of the last months of the Fifth Parliament. Still, with sufficient priority attached to the matter, an amendment can be passed by the end of March and signed into law. What is certain is that ancillary changes in ordinary legislation cannot be completed by then. They would have to be dealt with by the Sixth Parliament. At most a constitutional amendment will specify a change in what can be done. What will be done has to be worked out in the coming years, and will be a major issue in the 2019 election.

Alternatively, consider the case that the constitutional amendment is not passed by the Fifth Parliament. Then, additionally, the form of any potential amendment becomes an election issue, and the salience of the land issue will be even greater.

As the sorcerer’s apprentice discovered, so wonderfully captured in Walt Disney’s Fantasia one can conjure up a process without being able to control it. Connoisseurs of South African politics, economics and civil society will find much to interest them here.

Charles Simkins, Head of Research, Helen Suzman Foundation. 

This article first appeared as an HSF Brief. 

Footnotes:

[1] Parliamentary Programme Committee, 24 May 2018

[2] Constitutional Review Committee, 20 March 2018

[3] Parliamentary Monitoring Group, The week ahead: The third term is underway, 13 August 2016

[4] Times Live, In full: Land reform: ANC to amend Constitution - read Ramaphosa's statement here, I August 2018

[5] Sections 74(2) and 74(9)