……….article dated 1 December 2021……..
Focus back on public works Expropriation Bill
With the focus back on the original public works Expropriation Bill, a report on the countrywide public participation process has now reached Parliament, the input having now been consolidated by parliamentary staff who ventured for the first time into countrywide online public e-mail contributions and with hearings conducted by virtual input.
The conclusions and summing up in the report now completes all parliamentary obligations under the Constitution to provide reasonable opportunities for public involvement before any debate on legislation starts. It is now for Parliament to process the Expropriation Bill in the normal manner now that the time wasting calls by the EFF and the ANC to amend the Constitution are out of the way.
Parliamentary meetings on the Bill are due to commence in the first term of 2022, the first stage being for the Public Works portfolio committee to consider the report on public submissions and then wordsmith the final document in with clause-by-clause deliberation.
In the meanwhile, the EFF’s parliamentary motion to amend the Constitution has brought into better perspective the claim to seek the acquisition of land for no compensation without qualification of purpose. The Expropriation Bill now comes back into its own right describing a number of necessary purposes. Expropriation Bill key to land reform – ParlyReportSA . However, before any debate can commence, the public voice must be listened to.
Analysis of submissions
The complicated but novel public participation process of national public hearings was led by Nola Matinise, parliamentary committee secretary and Shuaib Denyssen, content adviser, whose report, with summations and analysis compiled from written submissions, oral submissions and with country-wide public hearings, will be studied by the parliamentary legal office and committee members over the Christmas recess period.
Throughout the process, it is quite evident that public misconceptions about the Expropriation Bill exist, and this factor came into play throughout the process, the compilers say. They were at pains to explain throughout the process carried out that the introduction of the Expropriation Bill should not be confused with the now failed call to amend section 25 of the Constitution.
The proposed eighteenth amendment to the Constitution sought to amend Section 25 to allow expropriation without compensation in principle, whereas the Expropriation Bill seeks to outline how expropriation in general must be undertaken, i.e. guiding the processes and procedures for expropriation of property if so required by organs of state and gives powers to the Minister where it is in the interests of all to carry out the process.
A briefing on the hearings report itself and the team’s findings was made by the same parliamentary team which highlighted the three phases of the public participation process. This was composed of a vast number of written and oral submissions (over 200,00 estimated by some of the team in off-the-record discussions), the usual oral submissions per virtual platform from the “Have your Say” advertised process. In addition, thirty-six countrywide community meetings took place where views and opinions were noted and which meetings took place in library meeting rooms, school halls and civic and town offices across the country.
The written e-mail submissions and the concept of a link provided for Whatsapp submissions, provided an excellent pilot for online communications platforms for the future, Parliament was told. All such avenues were new to the parliamentary process, the compilers said. MPs took considerable time in congratulating the young team in what had been a major and ground-breaking exercise.
After deleting duplications using email address cross checks and discarding pointless contributions i.e. emails that were abusive, irrelevant or no comprehension of the subject matter, the input data from e-mails amounting to some 120,000 messages was included. Those not included, amounting to some 10,000 which were termed “dropped” e-mails since they had no data, were put aside being kept as “legal contributions with no useful data”.
The final data was then consolidated into overall results after consolidation with the hearings from Parliament and at provincial meetings and legislatures.
The objective of the report, Ms Matinise said, was to provide a breakdown of submissions to show whether there was support for the Expropriation Bill or not, to isolate the clauses that were problematic and to indicate the clauses that were supported.
On the report generally, the compilers noted that many of the submissions commented on the lack of clarity with expropriation procedures as worded in the Bill. There was broad consensus on the need to redress historical land dispossession.
It was noted also that disagreement existed about which state entities or government departments should be involved in expropriation procedures, it being seen that the Bill emanated from the minister of public works. This was found by some to be confusing, not understanding perhaps that public works department was the home of the state asset register.
So much happening
Most in the country districts before public meetings commenced were of the opinion that it was a political party, not the government, that wished to appropriate land. It was also noted by many that it was considered a pointless exercise to discuss anything in terms of the Expropriation Bill without knowing first of the outcome Section 25 of the Constitution amendment proposition.
The compilers said that on each occasion it was explained that an Expropriation Bill was needed either way, and the decision to ask at this point for public opinion had been taken in order to speed things up in the same way as land reform itself needed speeding up.
Madeleine Hicklin (DA) noted from the report that many people were worried about the meaning of the word “property” in the Expropriation Bill, this being in common with others throughout the parliamentary hearings. “We need to look at what “property” actually is and how it is defined when dealt with by the specifics of the Expropriation Bill”, she said.
She said that the word property in a legal sense was one thing and in the public mind another. “This is the same misunderstanding we have heard in committee since this Bill was introduced and is the source from which so many people have got the idea that the Expropriation Bill alone would address the land reform issue as a whole”.
No land grabs
Ms Hicklin also said, “We cannot walk away from the fact that many people believe that this Bill is designed to give access to land purely on the basis of it being passed by Parliament. People sincerely believe that this Bill means that they will be able to get a piece of land whether it has got a house on or not and say this is, at last, the land that I can call my own”.
This was not the purpose of the Bill, she said, “Nor will the Expropriation Bill bring about any radical changes in land distribution in the general scheme of things, but it will be a useful working tool.” Other MPs agreed and expressed deep concern that the Expropriation Bill, when and if passed, might bring about a crisis in expectation due to misconceptions “mainly generated for political gain”. Parliament re-opens February 14.
The Expropriation Bill was introduced originally in 1975, the main objective of the Bill being to ensure that expropriation laws are in line with the Constitution of South Africa. It is hoped that local, provincial, and national authorities will use this legislation, said a parliamentary press release, to expropriate land in the public interest for varied reasons that seek to promote inclusivity and access to natural resources.
In fact, with reasoned debate and reasonable persons, the Expropriation Bill could be the tool to release vast areas of state land and urban development as part of re-settlement needs, it was said when the Bill was introduced. Parliament was told that most countries had an Expropriation Bill of sorts.
It was also explained that the difficulty had been that whilst the State has no controlling interest in privately owned land whatsoever, still had the responsibility for land reform and presently the minister is answerable to the public for not achieving this.
Under the proposed Expropriation Bill, the minister will be able to acquire any land, either held by any state department, SOE or private entity for an agreed price for land or for ‘nil’ compensation under certain conditions proposed in the Bill.
With these proposals in hand, should the state require private land for any public works programme, whether it be for a state housing plan, an agricultural programme, or an infrastructure development such as water, roads, rail and electricity, it can obtain such land under certain conditions and, if needs be, for nil compensation with more conditions attached.
I told you so
In many ways, the last two years of theatrical posturing by the EFF and some members of the RET movement to acquire land by edict has been more of a political game play at the expense of public emotions. The ANC were told repeatedly by legal advisors that to achieve any process of land acquisition for no compensation under certain circumstances and for good purpose was completely possible under the proposed Expropriation Bill.
They were also told that by using the normal legislative route, they would not risk the difficulty of trying to attain a two thirds majority in Parliament for a constitutional change but just would need the normal majority 50 plus 1 required to pass the Expropriation Bill.
The two courses and which one to follow has fuelled further dissent within the governing party, party whips having to ensure that any picture of party division did not arise. From the start, the ANC appears to have been trapped by the EFF initiative of using a platform of struggle respectability to get ahead in elections. There is probably a quite high percentage of ANC MPs who are quietly pleased that the tub thumping has ended.