Legislation: Constitution Amendment Bill hearings imminent

The first round of public hearings on the draft Constitution 18th Amendment Bill will take place between from 20 to 24 February in Limpopo and Northern Cape provinces, reports Pam Saxby for Legalbrief Policy Watch.  According to a media statement announcing this yesterday, members of the parliamentary committee responsible for preparing the proposed new statute will split into two groups so that the optimal number of hearings can be held across all nine provinces during the time available. This is noting that the deadline for written submissions on the draft Bill was recently extended to 29 February.

There has still be no official comment from the committee, Parliament or any of the parties represented there about Cabinet’s decision on 13 December to approve the release of a revised draft Expropriation Bill for further input. Yet this decision could well compromise the entire public participation process, mainly because the ever-elusive revised draft is expected to specify the circumstances in which expropriation with nil compensation might reasonably be used as an instrument for land reform purposes. At this stage, as framework legislation, the draft Constitution 18th Amendment Bill simply seeks to provide for this – leaving the details to unspecified enabling legislation widely understood to be the new Expropriation Bill.

South Africans aware of the nuances could be forgiven for wondering what point there might be in commenting on a draft Constitution 18th Amendment Bill without sight of the very important details likely to be spelled out in the revised draft Expropriation Bill and subjected to a separate public participation process. This conundrum could have been avoided if both pieces of proposed new legislation had been released together for comment. Cabinet’s decision tends to suggest that this would, in fact, have been possible. However, as things now stand the ruling party could find itself accused, at worst, of attempting to deceive members of the public – and, at best, of not planning (or thinking) ahead.

It remains to be seen if opposition parties concerned about property rights are waiting for the most strategically opportune moment to announce their intentions in this regard. Will it be after the Constitution 18th Amendment Bill has been finalised and passed by both Houses – and is ready to be signed into law? Shortcomings in the public participation process have resulted in many key Bills being returned to Parliament or left gathering dust on a Presidency desk. Unfortunately, however, this tactic does nothing for policy certainty and even less for ongoing efforts to attract investment and boost economic growth. It could also fan the flames of grass roots frustration over the slow pace of reform, especially if land hunger (News24) is as acute as the ANC and EFF claim.

The entire process needs to be managed by all political parties with greater insight and sensitivity. At the very least, ordinary South Africans deserve the courtesy of an official statement from government explaining the relationship between the two draft Bills; when the revised draft Expropriation Bill will be released and why this has taken so long; and when they can expect to see the draft Land Court Bill Justice & Correctional Services Minister Ronald Lamola promised would be tabled ‘soon’ – as far back as last July. Given that the purpose of a Land Court Bill would be to ‘strengthen’ the adjudication process in the context of disputes over land restitution, distribution and expropriation, a first draft might throw light on a recommendation emerging from last month’s ANC national executive committee lekgotla, that the powers to expropriate landed property should be ‘vested in the executive’, not the courts.