Who supports the draft amendment to Section 25 of the Constitution?

INTRODUCTION

The Fifth Parliament decided in December 2018 to amend Section 25 of the Constitution, which deals with property rights and forms part of the Bill of Rights. The purpose of the amendment is to make explicit that which is implicit in the Constitution, that expropriation of land without compensation is a legitimate option for land reform. An ad hoc Committee to amend Section 25 of the Constitution was then established to formulate the amendment but, unsurprisingly, was unable to complete its work before the end of the Fifth Parliament.

DEVELOPMENTS IN THE SIXTH PARLIAMENT

In July 2019, the Sixth Parliament established ad hoc Committee to initiate and introduce legislation amending Section 25 of Constitution. The Committee started its work in early September and by 25 October it finalized its programme of work. (To see the programme, click here.) A land dialogue workshop and a briefing from the Department of Trade and Industry followed in November. Then on 3 December, Parliamentary Legal Services presented the wording of the Draft Constitution Eighteenth Amendment Bill to the Committee. Aspects of the draft were discussed at this meeting, but it was noted that members of the Committee needed a chance to consult with their parties. The Chair asked that this consultation should be carried out before a further meeting of the Committee on 5 December, which would decide on the Amendment Bill to be published for public comment by the end of January.

In the event, several parties stated in the 5 December meeting that they had been unable to present the draft Bill to their caucuses as Parliament had gone into recess the previous day. This meant that the only course of action for the Committee was to publish for comment the Draft Bill as presented by the Parliamentary Legal Services on 3 December, without the Committee itself resolving that the Draft Bill was desirable. This in effect left each party, including the ANC and EFF, free to comment on the Bill by the end of January, and to propose any amendments to the Draft Bill it desires.

Between 3 and 14 February 2020, the Committee support staff is to summarize the submissions on the Draft Bill. (It remains to be seen whether the task can be accomplished in the time allocated. The experience of the 2018 Constitutional Review Committee, whose task it was to recommend to the Fifth Parliament whether the Constitution should be amended or not, is not encouraging.) Public hearings follow between 17 and 20 February, after which comments from the provinces and the National House of Traditional Leaders will be considered. The Draft Bill will be deliberated on by the Committee between 4 and 18 March, with a view to reporting to Parliament on 26 and 27 March.

EMERGING DIFFICULTIES

The question arises: what happens if the Committee decides to amend the Draft Bill? That has always been a possibility in the light of comments from the public, the provinces and the National House of Traditional Leaders. But the probability of that outcome has been substantially increased by the lack of the Committee’s support for the content of the Draft Bill[1]. The Committee’s only commitment has been to the publication of the Draft Bill for comment.

If the Committee does recommend an amended Draft Bill, and Parliament approves the amended version, restarting the process prescribed by Section 74 of the Constitution cannot be avoided. It will not suffice to table the comments on the Draft Bill as it currently stands in the National Assembly, since these cannot take account of the amendments to the Bill.

Four other difficulties can be identified:

One of the current tropes is that land reform is an inclusive national project for which national unity is required. But the country is divided on the issue. Five parties, with a total of 114 members of the National Assembly, opposed amendment of Section 25 in the Fifth Parliament. These parties have 8 representatives (DA 5, IFP 1, FF+ 1 and ACDP 1) out of 21 Committee members. Pro-amendment parties have 12 representatives (ANC 9, EFF 2 and NFP 1), with Al-Jama-Ah having the remaining seat. If the pro-amendment parties stick together, they will have the majority necessary to make Committee decisions. If not, Committee dynamics will be complicated.

Some of the commentary on land reform both in the Committee and elsewhere shows an insufficient appreciation of the counter-majoritarian nature of rights. If you have a constitutional right, you have it even if the majority of the population would prefer that you do not. Our Constitution constitutes the state. The government of the day (the Executive) is only part of the state and its powers are limited. To argue otherwise is to betray a lack of commitment to our constitutional democracy.

It is sometimes urged that there is huge land hunger, that the only way of avoiding widespread violence is to have a radical programme of expropriation, often without compensation. But survey after survey has found that land reform and agricultural opportunities are low on the list of popular demands. What is at the top of the list is more employment, and the more investors are alarmed by a growing prospect of insecure property rights, the less employment we shall have. It would be a tragedy to sacrifice a greater need to a lesser one, especially when growth prospects are so poor, but here, as in other fields of policy, we may be unable to avoid digging ourselves into a yet deeper hole.

The ANC’s view at present is that the courts are not to be included in the expropriation process, but that aggrieved parties may approach a court for a review of the process afterwards. The reason provided is that judicial oversight during the expropriation phase would slow the process. However, this approach disregards the fact that government departments have shown themselves unable to implement land reform efficiently[2]. Blaming the courts for departmental inefficiency clearly shows an inability to recognize where the real problem lies.

Charles Simkins, Head of Research, HSF.

[1] See Qaanitah Hunter, ANC proposes shocking land expropriation amendment: move to block courts from having a say on expropriation without compensation, Sunday Times, 26 January 2020

[2] See for instance the Constitutional Court judgement in Mwelase and Others v Director-General and Land Reform and Another (CCT 232/18) [2019] ZACC 30; 2019 (11) BCLR 1358 (CC); 2019 (6) SA 597 (CC) (20 August 2019)