Our country’s laws under scrutiny
THE LAMENT for land has been a refrain at the seven provincial public hearings held so far by the High Level Panel on Assessment of Key Legislation and Acceleration of Fundamental Change.
The Speakers’ Forum, a structure of Parliament and the Provincial Legislatures, appointed the Panel in January last year to assess the impact of the laws of our democracy.
Of the more than 1 000 laws passed since our first democratic election in 1994, the panel is focusing on about 100 in three main focus areas – poverty, unemployment and the equitable distribution of wealth; land reform, sustainable livelihoods, rural development and security of tenure; social cohesion and nation building.
Our provincial public hearings have been in diverse locations – church property in the Eastern Cape, Western Cape and Mpumalanga; a newly-built convention centre named after an antiapartheid struggle activist in the Northern Cape; in the CBDs in Bloemfontein and Durban; and at the Johannesburg City Hall – just less than 10km from Sophiatown, the vibrant mixed race suburb condemned to forced removal in 1950.
Sophiatown and District Six in Cape Town have epitomised the ruthless forced removal of entire urban and rural communities from prime land to marginal areas.
At the seven provincial public hearings we have held so far, people have travelled great distances, sometimes hitch-hiking, to speak of their problems with access to land for farming, land for housing, secure tenure on the land they occupy, access to mineral rights and beneficiation of minerals, restitution for apartheid-era land dispossession and the slow pace of our democracy’s land reform programmes.
People have also proposed possible solutions to these problems and have indicated their determination to hold elected representatives and appointed officials to account and expect them to uphold the constitution.
The constitution is our supreme law, providing the legal basis for the existence of our democratic state, sets out the rights and responsibilities of citizens and defines the structures and obligations of our government.
For instance, the constitution allows for land to be expropriated for a public purpose or in the public interest.
It defines the public interest to include “the nation’s commitment to land reform and to bring about equitable access to all South Africa’s natural resources”.
The constitution also sets out the terms for compensating current owners of land earmarked for expropriation. The compensation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances. These circumstances include the current use of the property, the history of its acquisition and use, its market value, the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property and the purpose of the expropriation.
In addressing the restitution and redistribution aspects of land reform, the constitution says “a person or community whose tenure of land is insecure as a result of past racially discriminatory laws or practices is entitled to security of tenure which is legally secure or comparable redress” to the extent provided by an Act of Parliament. A person or community dispossessed of property after June 19, 1913, as a result of past racially discriminatory laws or practices is entitled to either restitution of that property or to equitable redress, to the extent provided by an Act of Parliament.
The panel has been inspired by the respect which ordinary people continue to have in the institutions of our democracy, their respect for the constitution and their recognition that it is in the interests of all that our state system functions.
In March, the panel will be wrapping up its public hearing engagements with provincial hearings in North West and Limpopo.
The provincial public hearings and round-tables with academics, experts and civil society organisations in particular fields are part of our efforts to publicise the panel’s work and to encourage ownership of our work by a range of South Africans.
We are wrapping up our public hearings in March, but we have also invited the public to give us written submissions. The cut-off date for these is the end of March.
Submissions may be handed in at public hearings (handwritten if typing is not possible), posted to PO Box 2164, Cape Town 8000 (attention Leanne Morrison) or e-mailed to highlevelpanel@parliament. gov.za
Have the laws of our democracy and their application helped or hindered us in realising the society envisaged in our constitution? What are the gaps? Are there too many laws? Are too many of them too complicated? Tell us.
Our consultations across the country will shape our final report and its recommendations,for handing over to the Speakers’ Forum in August 2017. However, urgent problems coming up need not wait until we finish our report and we are referring the same to the relevant authorities.
Kgalema Motlanthe is chairperson of the High Level Panel on Key Legislation and Acceleration of Fundamental Change