Dead line to change Section 25
Legal challenges loom and Parliament has little time to introduce a bill to amend the Constitution and finalise it
ON TUESDAY, the National Assembly adopted the report of the Constitutional Review Committee on its review of whether Section 25 of the Constitution should be amended to allow the state to expropriate land without compensation, in the public interest.
As background, earlier this year the National Assembly (NA) and National Council of Provinces (NCOP) passed a resolution mandating the Constitutional Review Committee to embark on a process to establish the views of the public on the possible review of Section 25 of the Constitution, to allow for the state to expropriate land in the public interest without compensation, and mechanisms for expropriating land without compensation.
The report of the committee stated that the committee conducted several public hearings throughout the country in various provinces. Citizens were given an opportunity to orally present their views to the committee in various provinces. Written submissions were also made to the committee.
Several stakeholders who made written submissions were also given an opportunity to orally present their views to the committee. In summary, the report further noted that the public’s inputs demonstrated an overwhelming support for constitutional amendment and expropriation of land without compensation. From the report, it was clear there is a need to address the historical inequitable land ownership that resulted from colonial and apartheid racial land laws, policies and practices.
The political parties in support of expropriation of land without compensation agreed that Section 25 makes provision, where appropriate, for the state to expropriate land at zero compensation or below market value. The contentious issue was whether to amend Section 25. Those in favour of doing so emphasised that this was in order to clarify the position and to make explicit what already is implicit in the Constitution.
Political parties opposing the amending of Section 25 emphasised that although apartheid was evil and that there should be redress, changing the Constitution would threaten the existing constitutional architecture. The slow pace of land redistribution was not a constitutional problem but rather the waste of resources through maladministration and corruption.
One of the issues highlighted during the debate in the NA, was that the process of public participation was flawed and that the submissions were not suitably considered. These are serious allegations and there are threats of challenging the adopted report in court. There have been challenges to the NA and NCOP for lack of consultation, and in some instances bills have been referred back to Parliament.
One such case is the Constitutional Court case of Doctors for Life International v The Speaker of the National Assembly (2006). The Concourt provided a test for determining whether public participation is validly conducted. The test is as follows: there must be consideration of the nature of the legislation concerned, the importance of the legislation, intensity of the impact on the public and other relevant factors which will depend on the circumstances of each case.
Other factors that must also be taken into account are: whether stakeholders were given a meaningful opportunity to participate in the law-making process and taken seriously as citizens, that their views matter and receive due consideration at the moments when they could possibly influence decisions in a meaningful fashion. I think if one were to consider the nature of the measure, the NA and NCOP mandated the committee to conduct or assess the views of the public and report to both houses once it had done its review.
In the case of a legislative measure such as a bill, it requires that all of the above requirements mentioned in the test be followed. In the event of a bill, there must be a meaningful consideration of a comment and a submission, that is, what the clause states, what the stakeholder comment to the clause is, and also the response of the committee or department. However, it seems the mandate of the committee was merely to give an assessment of the public’s views and may not necessarily require stringent requirements such as those of a bill. It is probable that the committee facilitated the required public involvement in terms of sections 59(1)(a) and 72(1)(a) of the Constitution in terms of its mandate.
The next step now is that a bill amending Section 25 would need to be introduced in the NA. Implementation of the constitutional amendment would also require a law of general application. Therefore, a bill or bills giving effect to the constitutional amendment may also be introduced in Parliament. These will be separate bills, referred to different committees, and will follow different procedures.
The Constitution sets out the procedure a bill has to follow. For example, a constitutional amendment follows the process listed in Section 74. The bill or bills giving effect to the constitutional amendment will follow either a Section 75 or Section 76 procedure.
As the bill amending Section 25 is an amendment to the Bill of Rights of the Constitution, it requires a twothirds majority when adopted in the NA. Once adopted, the bill will then be sent to the president, who will sign it into law. It is possible that the constitutionality of the bill or bills will be tested. In such an event, the Concourt will check the constitutional amendment against the constitutional principles.
General elections are scheduled for next year. In terms of its programme, Parliament has eight weeks next year before the term of the fifth Parliament comes to an end. This does not allow much time for the completion of bills – a factor that will surely impact which bills are introduced in Parliament next year. Also, the procedure a bill has to follow impacts the time in which it can be completed. It is therefore likely that the bill amending Section 25 could be introduced and finalised before the end of the Fifth Parliament in March 2019.