Parliamentary Notebook: Expropriation without compensation set to pass next hurdle, but there's a long road ahead


Parliamentary Notebook: Expropriation without compensation set to pass next hurdle, but there's a long road ahead

Published Date: 2018-12-04 | Source: DailyMaverick | Author: Marianne Merten

Parliamentary Notebook: Expropriation without compensation set to pass next hurdle, but there's a long road ahead

Land expropriation without compensation is set to pass its second parliamentary hurdle today when the National Assembly debates and votes on the joint constitutional review committee report for changing Section 25 of the Constitution. With AfriForum's interdict bid dismissed last week, it's all eyes on the House even if it's pretty much a done deal on the numbers, given the EFF and ANC bromance on this. But there's a series of steps still to be taken -- and it's not a straight path.

The National Assembly will have passed about 11 Bills in two weeks before it closes for 2018, excluding the four Money Bills such as the Adjustments Appropriation Bill and tax amendment draft laws needed to give effect to the Medium-Term Budget Policy Statement (MTBPS). A back-of-the-napkin calculation shows broadly that is more draft laws passed in a two-week period than the whole of the rest of the year, again excluding the Money Bills related to February's Budget.

Part of this efficiency drive is the usual year-end rush, exacerbated in 2018 as some three months were reallocated to constituency work, read electioneering, that has upped the pressure on the parliamentary calendar. But given that 2019 is an election year, it's also all hands on deck to finish all outstanding business because, if that's not done, it'll lapse with the end of the current Parliament.

The new incoming MPs may well decide to resuscitate matters. That could include the Bills the Cabinet has continued to send to Parliament despite the mutually agreed-to end of May 2018 deadline -- and understanding draft laws submitted to Parliament after that could and would not be dealt with. Or the new Parliament might take up issues flagged in the various committee legacy reports currently in drafting stage.

But none of that's a given -- except for the constitutional amendment to change Section 25, so expropriation without compensation is explicitly made possible in the Constitution. That matter will have to be dealt with by the post-2019 election Parliament, even if, as the joint constitutional review committee report recommendations say:

"Parliament must table, process and pass a Constitutional Amendment Bill before the end of the 5th (the current) Democratic Parliament in order to allow for expropriation without compensation."

That is logistically and time-wise simply not possible. And the ANC has acknowledged this shortly after the joint constitutional review committee had adopted the report supporting a constitutional amendment for land expropriation without compensation.

"What is very clear is that there will be no voting on the actual constitutional amendments before the elections," said ANC MP Vincent Smith.

The bungle needs to be corrected on Tuesday 4 December.

The EFF may not like this as it is on public record that the constitutional amendment for compensationless expropriation must happen before the elections, as EFF Chief Whip Floyd Shivambu also told the SABC on the sidelines of the final public hearing in Cape Town in early August. But previously the EFF has been agreeable and accommodating: Its February 2018 motion that kicked off this whole process actually had called for the nationalisation of land. The party agreed to water down the motion brought by its leader Julius Malema in return for ANC support to have it adopted.

But by getting this motion in the name of Malema adopted, the parliamentary records will forever reflect the EFF role - and the party can brag it set the public agenda also on land. And with an election no more than six months away, that's electioneering gold. Mind you, the ANC will also claim campaign trail bragging rights. That's because the February 2018 parliamentary motion and the final joint constitutional review committee report recommendations are closely in line with the ANC December 2017 national conference resolution -- that compensationless expropriation was one measure for land reform to be executed in a way that did not impact negatively on food security and agricultural production.

But the bottom line is, as every politician knows, that the actual constitutional amendment will not happen before the elections.

Even without a truncated parliamentary calendar in 2019, when MPs return just a couple of days before the State of the Nation Address scheduled for 7 February in the latest available parliamentary programme, there's no time to pass constitutional amendment legislation.

First, Parliament has to pass another motion to establish the mechanism for the constitutional amendment bill, be it an ad hoc committee or a referral to the justice committee. Then the constitutional amendment has to be actually drafted. Then there has to be a 30-day notice period for public comment. There have to be public hearings.

And then there are the court challenges, and campaigns at global level against expropriation without compensation, an issue President Cyril Ramaphosa has had to answer to on just about every one of his international working and official trips abroad.

Freedom Front Plus leader Pieter Groenewald last week headed to Geneva, Switzerland, to meet and brief the United Nations Human Rights Council's Forum on Minority Issues on what the party in a statement described as "the ANC government's abuses as well as the destructive potential of expropriation without compensation".

He called on the UN Secretary to initiate "a full investigation, to pressurise the SA government to put an end to these atrocities (against South African farming fraternity) and to stop the process of expropriation without compensation".

This came at the end of his address to the forum in which he argued an amendment to South Africa's Section 25 property clause would violate Section 17 of the UN's Universal Declaration of Human Rights.

Such an argument is somewhat disingenuous because even though the Universal Declaration of Human Rights states that "no one shall be arbitrarily deprived of his property", such arbitrariness would not be the case in South Africa as expropriation without compensation would be in line with the Constitution and laws of general application, like an Expropriation Act. And recourse to the courts is always an option, as enshrined in the Constitution.

But there is an election coming up and there are political points to score.

"Government leaders are scapegoating and blaming the Afrikaner minority group for the current economic turmoil, unemployment and poverty. All Afrikaners are presented as land thieves and land is presented as the sole solution to all of South Africa's socio-economic challenges," said the FF+ leader, adding that expectations had been ratcheted up and land occupations were happening.

Sharing time and space with the FF+ in Geneva was AfriForum. This emerged from the statement by the alt-right group issued after having had its urgent interdict against Parliament's joint constitutional review committee dismissed in the Western Cape High Court on Friday as not urgent.

That ruling was "not the end of the organisation's battle in protecting property rights, but merely the beginning of a long and lengthy battle," said AfriForum CEO Kallie Kriel, adding also that the group would "in addition to the battle continuing locally in South African courts and on other platforms, also continue to increase its efforts to help generate international pressure for the protection of property rights in South Africa".

In contrast, the ANC parliamentary caucus said in a statement Friday's court decision was "a victory" for the majority in favour of land reform.

"The true intention of this application was to justify the violent dispossession of land. We condemn AfriForum's use of its position of wealth and privilege to abuse the judicial system with a view to undermine parliamentary process, render the voices of South Africans meaningless and to perpetuate their racially divisive ends."

And so the trenches are being dug. It's understood the SA Institute of Race Relations (SAIRR) is also looking at court action -- like AfriForum, and others, it is concerned about the weighting given to written submissions -- but has kept its powder dry as the parliamentary process has not yet run its course.

"As Parliament consistently stressed, AfriForum's application was ill-advised, abusive to the court processes, premature and intended to gag both Parliament and thousands of South Africans who expressed their views through the public participation process," Parliament said in a statement, adding the ruling was also "an affirmation of the correctness of Parliament's public participation process" where it was not the numbers, but the quality and diversity of submissions was important, as the process was not a referendum.

What matters not so much is Tuesday's vote on the report by the joint constitutional review committee recommending a constitutional change to expressly allow expropriation without compensation. The report will be adopted as together the ANC and EFF, with the support of the United Democratic Movement and National Freedom Party, have the numbers.

What will matter greatly is how political parties put forward their positions -- and whether finger-pointing and political point-scoring will trump deliberation and debate. DM

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