Parliament under pressure over land bill
• Call for public to get more time to comment on no-compensation move
The parliamentary committee tasked with formulating legislation to amend the constitution to allow for expropriation of land without compensation is under pressure to extend the deadline for public comment amid looming legal challenges.
The parliamentary committee formulating legislation to amend the constitution for expropriation of land without compensation is under pressure to extend the deadline for public comment as legal challenges loom.
It is feared that expropriation without compensation to address skewed land ownership since the colonial and apartheid eras could rattle investors and hit the struggling economy.
The Banking Association SA (Basa), representing registered banks, said previously that while the country had to deal with land reform it had to be done without discouraging investment.
In December, parliament published an invitation in the Government Gazette for the public to make written submissions on the draft legislation by January 31. But various groups say the period should be extended as the festive period made it difficult for most individuals and organisations to table detailed submissions.
On Tuesday, the Centre for Constitutional Rights (CFCR), which operates as a unit of the FW de Klerk Foundation and aims to promote “the full spectrum of rights, values and principles in the constitution”, said it had written to the chair of the ad hoc committee, Mathole Motshekga, urgently requesting an extension of the deadline for public comment.
“[We are] concerned that such a critically important amendment bill was published for public comment at the start of the festive season. Most businesses and civil society organisations close for the year and only reopened early in January 2020,” the centre said.
It said that this would be the first time the SA public was faced with an alteration of a right in the bill of rights. The bill of rights forms a “cornerstone of democracy in SA, and it is therefore vital to ensure meaningful public participation”, the organisation said.
Motshekga was yet to respond to requests for comment on Tuesday.
The land expropriation issue has polarised the country and spooked investors.
In December, the Institute for Race Relations (IRR), a leading think-tank in SA, said it would launch a legal bid to challenge major procedural shortcomings in the parliamentary process of redrafting section 25 of the constitution. The institute raised a number of issues of concern, and said that contrary to all the assurances provided by the ANC and the mandate given to the ad hoc committee the draft bill did far more than merely “make explicit that which is implicit” in the existing wording of section 25 of the constitution.
First, the draft bill made it clear that both land and “any improvements thereon” were to be subject to expropriation without compensation.
“However, the ad hoc committee’s mandate is to deal with land alone. Buildings are, of course, immovably attached to land that may be expropriated, but the additional value of these structures can always be calculated,” the IRR said.
The IRR also pointed out that the draft bill empowered parliament to adopt any number of subsequent statutes, all of which could be passed by a simple 51% majority, which would set out
THIS UNCONSTITUTIONAL CONDUCT AND ABUSE OF THE PARLIAMENTARY PROCESS CANNOT GO UNCHALLENGED
“specific circumstances where a court may determine that the amount of compensation is nil”.
This subsection vastly extended the circumstances in which “nil” compensation could be paid.
“In fact, it opens up an endless vista of potential expropriation without compensation takings. For this reason too, the subsection does far more than make ‘explicit that which is implicit’ in the existing section 25.”
The proposed changes in the draft bill were anything but minimal, the IRR said. They were not consistent with the ad hoc committee’s mandate, it said.
“In addition, the way in which section 25 is being amended is contrary to section 74 of the constitution, with its important procedural rules for amending the bill of rights.”
“This unconstitutional conduct and abuse of the parliamentary process cannot go unchallenged and especially not when the resulting damage to confidence, investment, employment, growth and prosperity is likely to be so great,” the institute said.