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Disregarding 99.9% of land submissions likely to trigger judicial review

2018-11-11 09:50
Land expropriation hearings. (Video screen grab)

Land expropriation hearings. (Video screen grab)

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Anthea Jeffery

Whether or not the Constitution should be amended to allow expropriation without compensation is the most important policy issue the country has confronted since 1996, when the Constitution was adopted.

Yet the Joint Constitutional Review Committee is planning to disregard more than 99.9% of the written submissions sent in to it on this key question.

In February 2018, the committee was instructed by Parliament to obtain the views of South Africans on the "the necessity of... expropriating land without compensation".

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It invited written submissions, receiving at least 720 000 comments by the 15 June deadline. The Democratic Alliance (DA) puts the true figure at some 780 000.

It would take years for the committee to do a proper analysis of all these submissions. However, the committee is determined to finalise its recommendations by the coming Thursday, so that Parliament can vote on them by the end of this month. To meet this arbitrary deadline, the committee is busy cutting short the consultation process.

The committee has discounted at least 270 000 of the submitted comments, cutting the total to roughly 449 000. It has also decided to look only at a "sample" of some 400 submissions, as this (says former co-chair Vincent Smith) has given it "an idea of what South Africans are saying".

This sample makes up 0.09% of the 449 000 submissions the committee has retained, and 0.05% of the more than 720 000 submissions Smith earlier acknowledged as having received.

The committee is thus planning to disregard at least 99.9% of the written comments.

The committee also seems to have prejudged the issues from the very start. At its first meeting, before any submissions had been sent in, Smith reportedly made it clear that expropriation without compensation is going to happen, whether people like it or not.

This presumably is also why the committee is determined to discount so many of the written comments. If all the submissions were taken into account, about 80% would oppose expropriation without compensation. Even if the number is confined to 449 000, some 65% reject the proposal.

This widespread rejection of expropriation without compensation does not fit the committee’s preferred narrative – and its apparent determination to recommend a constitutional amendment, irrespective of what the written submissions say.

The ANC and EFF are now trying to get around the procedural problems by resorting to a different stratagem. At the committee’s most recent meeting this Thursday, these parties insisted that the committee need not engage with the submissions itself. Instead, it could rely on a flawed report on the remaining 449 000 submissions compiled by unknown recruitment company Isilumko Staffing.

The story here goes back to September, when this inexpert company began presenting its analysis of the submissions to the committee. MPs objected to the veracity of its report, the DA noting, for example, that some submissions had not been captured at all. Isilumko’s poorly informed representatives were sent packing, and it was decided that the committee must analyse the submissions for itself.

Procedural irregularities accelerating

Now, however, the ANC and EFF claim it was only Isilumko’s oral presentation that was rejected, not its written report. Despite DA and other objections, the minutes of the September meeting were thus changed at last week’s meeting. The previously adopted minutes reflected that the Isilumko report had been rejected; the amended minutes say it was only the Isilumko presentation that was repudiated. 

The procedural irregularities in the committee’s work are rapidly accelerating, but the ANC and EFF seem contemptuous of this, too. When opposition parties at this week’s chaotic meeting stressed the need for procedural correctness, ANC and EFF members dismissed their concerns with dares to "let them go to court".

An EFF delegate from the National Council of Provinces (NCOP), Tebogo Mokwele, has also argued that the committee is "not dealing with a referendum" and that "numbers don’t matter".

This stance is perhaps to be expected from a minority party with only 6% of the seats in the National Assembly. But it does not alter the committee’s obligation to obtain the views of South Africans on whether expropriation without compensation is needed or not, as Parliament instructed it to do.

If the committee continues to insist that its own small sample and the flawed Isilumko report are enough, it will also be reneging on a vital constitutional obligation to facilitate public participation in the law-making process. As the Constitutional Court has stressed, citizens must be given "a meaningful opportunity to be heard", which must also be "capable of influencing the decision to be taken". The committee thus cannot simply shrug off its obligation to "hear" and heed what some 720 000 people have said.\

Ramifications enormous

The economic and political ramifications of amending the Constitution to allow expropriation without compensation – nationalisation by another name – are also enormous.

According to another EFF NCOP delegate, Tsapane Mampuru, the committee must make its decision on ‘the basis [of] what’s...good for South Africa’. On that test, the committee should have no hesitation in rejecting an expropriation without compensation constitutional amendment, which is sure to undermine investor confidence, limit growth, and add to the unemployment crisis.

Depending on the scale of expropriation without compensation, economic catastrophe of the kind evident in Venezuela and Zimbabwe could also follow. In both these countries, expropriation without compensation has led to hyperinflation, crippling shortages of food, medicines, and other essentials, and a surge in poverty and joblessness to levels of 80% or more. In both these states, millions of people have had little choice but to flee to neighbouring countries with stronger economies. In South Africa, however, even that limited escape hatch will not be available.

A decision so vital to South Africa and all its people requires particularly careful consideration and a fully informed assessment of whether the improbable "pros" of expropriation without compensation outweigh its manifest "cons".

The DA has warned that if the committee "fails to engage properly with all the written submissions", its work is likely to be set aside on judicial review. The DA is already considering bringing an action of this kind. The Institute of Race Relations (IRR) is also busy instigating such litigation. The short-cut and shoddy process the committee seems intent on using makes a travesty of public consultation and cannot be allowed to stand.

- Dr Anthea Jeffery is Head of Policy Research at the IRR, a think tank promoting political and economic freedom. If you agree with what you have just read, SMS your name to 32823. Each SMS costs R1. Ts and Cs apply.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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