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Constitution Eighteenth Amendment Bill Under the Spotlight

March 29, 2021

Parliament

The Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution has expressed concern about the public hearings of the portfolio committee on public works and infrastructure.

The committee held public hearings on the Expropriation Bill this week in parallel with ad hoc committee hearings on the Draft Constitution Eighteenth Amendment Bill.

The Expropriation Bill was tabled in parliament in October 2020.

The bill, designed to provide for the expropriation of property for a public purpose or in the public interest, was published for comment at the beginning of 2019.

The public works and infrastructure department published the bill’s explanatory summary in Government Gazette 43798 in October 2020.

The bill aims to:

• provide for the expropriation of property for a public purpose or in the public interest;
• provide for certain instances where expropriation with nil compensation may be appropriate in the public interest; and
• provide for matters connected therewith.

According to the explanatory summary, the proposed legislation intends to give effect to the provisions of the Constitution including the equality clause (section 9); the property clause (section 25) and the just administrative action clause (section 33).

The bill also seeks to set up a “uniform framework for the expropriation of property across the three spheres of government without interfering with the existing expropriation legislative competence of expropriating authorities”.

At the end of last year, the public works and infrastructure minister, Patricia de Lille, pointed out that the Chief State Law Adviser had certified the bill as constitutional.

The minister added that a law of general application is needed that will ensure that any act of expropriation is in compliance with the Constitution.

She also emphasized that the drafting of the bill was separate from the work of parliament in reviewing Section 25 of the Constitution.

“The Bill has been drafted to be consistent with Section 25 of the Constitution as it currently stands,” she said.

In a statement, the ad hoc committee chairperson, Dr Mathole Motshekga, said he will first approach the chairperson of the portfolio committee on public works “regarding the public hearings on the Expropriation Bill, which are “running concurrent” with the work of the ad hoc committee in its attempt to find the correct wording to allow for the expropriation of land without compensation in the Constitution”.

“It seems a bit like putting the cart before the horse, as our process should inform what should be in the Expropriation Bill. I will write to the Chairperson first, as the concern was raised several  times during our hearings”, he said.

The ad hoc committee has been receiving virtual oral submissions on the Draft Constitution Eighteenth Amendment Bill since Tuesday from stakeholders who indicated previously in written submissions an interest to elaborate further in oral presentations.

Meanwhile, in a statement, the portfolio committee on public works and infrastructure announced the conclusion of the first round of oral submissions on the Expropriation Bill.

A total of 129 127 written submissions were received during phase one of the public’s input on the bill.

The committee chairperson, Nolitha Ntobongwana, emphasised that the committee is working through the written submissions and plans to complete the process by 13 April 2021.

The committee emphasized that there was no intention to conduct oral submissions in the same week as the ad hoc committee.

“This was an unfortunate incident that should be avoided at all cost, as it might have led to unnecessary confusion, which could have curtailed the participation of interested participants.”

The committee added that it must be kept in mind that the “Expropriation Bill project timeline indicates that, to ensure coordination, it will dovetail in completion with the work of the Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of Constitution”.

The committee also plans to visit regions in each province to “listen to the wider public input”.