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Parliament Under Pressure to Extend Comment Period for Land Expropriation Bill

Business Day

14 January 2020 – 19:34 Bekezela Phakathi

Centre for Constitutional Rights tells parliament committee chair the public has not had enough time to comment

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.

There are fears that land expropriation without compensation, which is meant to address skewed land ownership dating back to the colonial and apartheid eras, could rattle investors and hurt SA’s already struggling economy.

The Banking Association SA (Basa), which represents all registered banks in the country, previously said that while it is necessary for the country to deal with land reform, it had to be done without discouraging investment.

In December, parliament published an invitation in the Government Gazette calling on the public to provide written submissions on the draft legislation by January 31. However, various groups say the comment period should be extended because the festive period made it difficult for most individuals and organisations to table detailed submissions on the contentious proposed legislation.

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 CFCR said.

It said the proposed amendment meant that this will be the first time the SA public will be 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 redrafting section 25 of the constitution.

It raised a number of concerns and said contrary to all the assurances provided by the ANC — and the mandate given to the ad hoc committee — the draft bill does far more than merely “make explicit that which is implicit” in the existing wording of section 25.

First, the draft bill makes it clear both land and “any improvements thereon” are 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 empowers parliament to adopt any number of subsequent statutes, all of which could be passed by a simple 51% majority, which will set out “specific circumstances where a court may determine that the amount of compensation is nil”.

This subsection vastly extends 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 are anything but minimal, the IRR said. It said they are not consistent with the ad hoc committee’s mandate.

“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 IRR said.