🔒 Fighting ELWC, IRR takes Parliament committee on judicial review

JOHANNESBURG — Fewer issues than land expropriation without compensation elicit such highly, emotionally charged feelings among South Africans. So, when a Parliament committee on Thursday controversially announced that it would start the process of changing the Constitution to affect so-called land ‘ELWC’, the likes of the Institute of Race Relations (IRR) were already waiting in the wings to fight back. The battle has started with the IRR launching a legal process to take the committee on judicial review. And as Anthea Jeffery – who is the Head of Policy Research at the IRR – explains in this podcast, her organisation is of the view that there is a good chance of successfully reviewing the committee’s decision because the committee has ignored 99% of all written submissions on the matter. – Gareth van Zyl

It’s a pleasure to welcome on the podcast Anthea Jeffery who is the Head of Policy Research at the Institute of Race Relations.

Anthea, thank you very much for chatting with us today on BizNews Radio.

Thank you.

There’s been a development today where the Institute of Race Relations plans to take the Constitutional Review Committee, which has been looking at land expropriation without compensation, on judicial review. The IRR has already consulted its lawyers. Can you tell us more?

Certainly. The committee was charged by Parliament to examine the need to amend the Constitution to allow expropriation of land without compensation, which is nationalisation by another name. It also has the constitutional obligation as a committee of Parliament to facilitate public involvement in the legislative process. It invited witness submissions on whether there was a need to change the Constitution to allow EWC and it received more than 720,000 written comments, according to former co-chair Vincent Smith. But of those 720,000, the committee has looked at most at about 400, which is less than 0.1% of the submissions that it received.

Dr Anthea Jeffery of the IRR.
Dr Anthea Jeffery of the IRR.

Therefore, the committee seems to have prejudged the issue, to have made up its mind that it was going to recommend ELWC irrespective of what the public told it. And because it has a concern that about 80% of those submissions are against ELWC, it’s just disregarding them. It’s going ahead with making the recommendation as planned in any event and it’s effectively leaving out of account 99.9% of the written comments received.

At the time of us doing this interview a final decision from this committee hasn’t yet been published, so are you expecting them to advocate for expropriation of land without compensation? (*Update — shortly after this interview, the committee had made its decision and confirmed that it planned to go ahead with changing the constitution. Read more by clicking here.)

I think that unfortunately, it’s very likely to do so. It will meet again today to decide on its recommendation. The ANC and the EFF — backed by the UDM — seem to be determined that that’s the recommendation which should be made. They’re riding roughshod over all the procedural objections, which had been made by the IRR and via political parties and opposition parties represented on that committee, and it seems very clear that their intention is to recommend the constitutional amendment. This is probably the only chance that the public will ever be given to put forward their views on whether the Constitution needs to be amended in this way.

If they recommend this amendment and if Parliament endorses that recommendation, then next year Parliament will have to embark on a process of obtaining public comments on the content of that legislation to amend the Constitution. They are very likely to say that it’s too late for people to talk about whether they want the Constitution amended or not — they’ll only be able to comment on the form of wording that should be used. So this is a crucial opportunity that people should be given to let their views be known on whether the Constitution should be amended. Most of them are opposed to the constitutional amendment and most of them are simply having their submissions effectively relegated to the rubbish bin while the constitutional review committee goes ahead with the recommendation they plan to make in any event.

Obviously, there are the written submissions, but there were also thousands of people who pitched up at those public meetings — and we all saw that on television. Many of those people looked like they come from poorer parts of South Africa and they may not necessarily have access to email or postal services. But it looked like — from various eyewitness accounts — that the vast majority of them wanted ELWC. So what do you make of that debate?

Well, I think we must recognise the shortcomings in that process, the public consultation, which was quite carefully orchestrated particularly by the EFF in terms of the choice of people who were given the chance to speak. In addition, when people were allowed to speak it was for approximately two minutes at most, which meant there was no opportunity really to develop an argument, and I think that mostly what we heard through those public hearings was a great deal of concern about the failures of land reform. However, those failures can, of course, be overcome without amending the Constitution, and this is, in fact, what the government’s own high-level panel recommended in November last year.

Land Grab. More brilliant cartoon work available at www.zapiro.com.

They looked at the rather slow pace of land transfers, but they also looked at the very great failure rate on the transferred land and they said that they didn’t think that the constitutional amendment was needed. Government needed to do other things to make a success of land reform and I expect if you’d ask a different question at those public hearings — such as “would you like the government to improve the success rate of its land reform programme and make sure that those who genuinely want to farm are given the support that they need” — then they would’ve had exactly the same sort of positive response from people, many of whom may not have had the opportunity to think through the implications of a constitutional amendment.

How does the judicial review from your side work and does it temporarily suspend any processes on Parliament’s side or does the ball still get rolling from their side?

Well, it’s obviously difficult to organise everything in time for when Parliament plans to meet at the end of this month in order to endorse the recommendation made by the committee. There is obviously very little time between today when the recommendation is to be made and the parliamentary process, which will endorse it. Nevertheless, if Parliament has acted on the basis of a flawed recommendation, then Parliament’s decision is also flawed and we will challenge the Constitution or review the committee decision, Parliament’s decision or both depending on what are the most appropriate calls of action.

Will other parties potentially join you in this review?

I gather that the DA is certainly considering a judicial review. There are other opposition parties that have been deeply disturbed by the procedural flaws in the process but are well aware that the committee has an obligation to hear and to heed what the public has told it and that has not fulfilled that obligation. Therefore, I think there may well be applications, which are lodged by other organisations as well.

Earlier this year President Cyril Ramaphosa took to the SABC in a controversial way and made some interesting statements about ELWC. He said the following and I quote: “A proper reading of the Constitution on the property clause enables the state to effect expropriation of land with just and equitable compensation and also expropriation without compensation in the public interest”. He then also went on to say that, “Our people…”, and I quote, “Want the Constitution to be more explicit about expropriation of land without compensation as demonstrated in the public hearings”.

Ramaphosa then finally went on to say, and I quote, “The ANC will, through the Parliamentary process finalise a proposed amendment to the Constitution that outlines more clearly the conditions under which expropriation of land without compensation can be affected”. Now gathering from that statement, what he was looking for was more of a clarification around land EWC. Do you think that’s ultimately the only thing that we’ll get if an amendment to the Constitution is made or could there be more?

I think it’s very difficult to interpret from that statement just what is envisaged. The ANC’s argument is that they’re going to amend the Constitution to make explicit what is now implicit in the Property Clause, that just equitable compensation could be zero at times. But it’s not at all clear that is the correct meaning of just and equitable compensation, which is always supposed to strike a balance, according to the Constitution, between the interests of those affected by the expropriation and the public interest in a more equitable access to land.

One fears that this basically a reassuring message that has been put out by the President and by others in the ANC to say that there’s really nothing to worry about. But the moment the obligation to pay just and equitable compensation is attenuated, the moment there is the possibility of paying no compensation whatsoever and the Constitution, of course, won’t specify exactly what the circumstances where no compensation will be paid are going to be, in that possibility you could actually have quite a wider range of circumstances in which there’ll be zero compensation. That is going to thoroughly undermine property rights in South Africa and property rights are the foundation for investment, for growth, for employment, for individual prosperity and the opportunity for the disadvantaged in South Africa to get ahead.

Finally, is your organisation going to fight this decision tooth and nail, and what do you think your chances of success are?

The procedural flaws are so obvious that we should have a very good chance of success. They’ve quite openly acknowledged that they’ve looked at 400 out of the 720,000 or so submissions, so they argued that fewer than 720,000 are valid and what they’ve done — in quite an extraordinary way — is to change the minutes of the meeting, and that again is after they were adopted.

It’s the kind of obvious flaws which the courts should take very seriously especially because the Constitutional Court, on a number of occasions, has said that Parliament and its committees must provide, and I’m quoting, “Some meaningful opportunity for people to be heard on the laws that will govern them.” The Constitutional Court has also said, and again I quote, “That opportunity must be capable of influencing the decision to be made” and the Constitutional Review Committee has simply ignored those from the court. IT seems to think that it can simply disregard what people said, that it doesn’t need to hear and heed the public submissions, but that goes against the thrust of a number of Constitutional Court judgments.

Anthea Jeffery, thank you so much for chatting to me today. It’s been interesting finding out more about this.

Thank you.