Constitutional amendment: What is a pragmatic approach?

2018-12-05 15:50

The Constitutional Review Committee (Committee) resolved on the 15th November 2018 to adopt a report on the review of Section 25 of the Constitution of the RSA. The adoption of the report was preceded by a consultative process the Committee resolved to embark on. The resolution contains recommendations to Parliament for an amendment of the Constitution. The recommendations also gives birth to a mechanism not stated in the report, a discussion to have when it is clear what the mechanism may be. 

The National Assembly and the National Council of Provinces, by way of operation and as per the law, are supposed to receive the committee’s resolution and entertain it. How the two houses will decide on the committee’s resolution is not known at this stage.

An organization known to oppose both non-compensation expropriation and expropriation itself is reported to have instituted legal proceedings against Parliament. The relief sought, as understood from media reports, is for Parliament to be prohibited from entertaining the resolution of the Committee. It is apparent that the matter is to be heard on the 29/11/2018 (and this article was submitted on the 28/11/2018 for publication). Well, there are mixed feelings about the intentions of the organization, not blind to the feelings by some of the  committee’s approach. The above is possibly a matter for consideration by the Cape High Court and possibly other courts.

It is always, in one’s view, prudent to, when an unusual journey is commenced with, make efforts to attempt to estimate a possible duration of the journey one is about to undertake. In the process of the estimation, pointers need to be considered. Given a possibly of a long journey in the expropriation without compensation review, in his written submission to Parliament, as per para [96], writer hereof stated as follows:

“… to amend the Constitution may a take a longer time, which time appears to be in short supply. The envisaged consultative process and the entire process to legislate, possible litigation to challenge the amendments and other factors may present delaying challenges…”

A challenge to the process by way of litigation had to be foreseen and measures had to be put in place to seek to achieve or part-achieve the facilitation of land access sooner than would be when there is litigation. Now that there is litigation, the question is what then? It may be strange why a lawyer should be concerned with and about litigation. If it were to be a concern the following should be considered- facilitation of land access should not be delayed: it is an urgent matter. Since the “what then?” question is not yet answered, same is answered below.

With no benefit of access to papers in the case against Parliament, it may not be, and is not wise to comment on whether the organization may or may not succeed in its application. Justice will prevail, one believes. Justice will depend on the material before the Court and the arguments advanced by the parties. What is worth commenting on is a decision to approach a High Court. Before doing so, it is proper that it be stated that time is not on the side of the landless.

If the organization is not satisfied with the Court outcome, it may go back to the same Court for leave to appeal, a right it enjoys. Ask those in need of land whether such would not amount to additional time wasted.

It has been reported that the matter herein concerned shall be heard by two Judges, which means that in terms of section 16 (1) (a) a party unhappy with the outcomes may, in the application for leave to appeal, seek leave to appeal to the Supreme Court of Appeal. Ask those in need of land whether such would not amount to further additional time wasted.

The Constitutional Court is the last forum, furthermore time wasted for those in need of land, as they may say. Those not in need of land (because they have it) but who respect the land reform mandate, as we must all respect and advance it since it is a Constitutional Project, as per sub-sections 4-8 of section 25, may argue that since the people in South Africa (as appears in sub-section 4), made a “national commitment” firstly to land reform and secondly to equitable access to natural resources, the national commitment ought reasonably be prioritized and as a people we work together.

Even if some argue that we should work together, they may not succeed in making a case to anyone who decides to oppose land reform to understand land-reform in the manner they (some) approach or interpret land reform. Our democracy allows anyone to approach courts if they want to advance a specific course. Whether or not there is substance in approaching courts will finally be entertained by the courts approached. In this article, one deals with the practical manner of facilitating access to land to the landless and not whether it is proper for courts to be involved at this stage.

We need to note that a final ruling by the Constitutional Court flowing from the current litigation may not be the last one. Say the court rules that Parliament should proceed to entertain the resolution, and following the ruling, Parliament indeed proceeds to draft a bill proposing an amendment. The above given, Parliament must consult the public given the bill as would have been drafted and may have to consult more thoroughly with regard to the bill proposing an amendment than it did with the current process (the Committee work and report to Parliament). This second consultative process is likely to take longer than the previous process. The Bill of Rights being a cornerstone of democracy, an amendment of a provision in section 25, like any right in the bill, may likely be more challenging than other amendments.  

The nature and degree of varying ideas on expropriation without compensation given, the above should explain the longevity concerns expressed above (in the 3rd paragraph above). As on the 18/04/2018, the date of submitting written submissions, longevity of amendments was identified and was expressed as a concern. A further ground for longevity concern is the difference between the current process and the Bill to propose an amendment. The difference is that whilst the former does not require a consultative process, the latter shall demand, as a requirement, a consultative process. There is likely to be another litigation sequel to the Bill proposing an amendment, an additional longevity concern. It should be indicated that the Con-Court case of Matatiela [45] may point to a possibility of consideration of the inputs from the consultative process being necessary.

The organization which brought the application possibly argues that it is necessary to consider the inputs because the committee resolved to engage in the nature of the consultations it engaged in. The law does not make it compulsory, though it does not discourage, consultations in the nature of the review herein concerned, the court in Matatiela so suggested. However, it is only when a law is being made that the Constitution is clear and admits of no ambiguity that members of the public must be allowed to participate in the law-making process. 

A resolution to amend a Constitution is not law-making (Matatiela, paragraphs [58] and [61]), but a bill is. Since the committee resolved to consult, the complexion changes and the inputs of the members of the public should be considered and taken into account. Whether each of the more than 500 000 submissions may be considered is a matter to be canvassed in court. The urgency of land reform is an important factor [Matatiela: paragraph 50], which may be in favour of the committee’s resolution.  

One’s take has always been and will remain that “whilst we may have a delayed amendment of the Constitution” as a result of a variety of factors, including litigation against the content of the proposed potential amendment at a later stage, “we could be implementing what we have, section 25(8), departure.” Departure permits the State to, without amending the Constitution, develop a law to exclude compensation when the State expropriates land. This is further contained in paragraph [96] of the written submissions to Parliament.

Whilst therefore courts are seized with the current interdict and its potential resultant appeal processes, section 25(8) of the Constitution may be applied to achieve the very objectives the majority and the Constitution require: land reform. The invocation of departure by the State, leading to a draft bill, requires just a motion in Parliament, even when the current litigation proceeds further. It is only when the bill is published that the departure proposal must be a subject of consultation.

A bill giving effect to departure, being a legislative measure, will likely be challenged as well. The advantage with departure is that an Act of Parliament is compulsory for expropriation purpose. An act is required whether there is an amendment or not. A one year or less than 18 months period for an act to come into effect may serve a good purpose, this not ignoring litigation which may be launched. If an amendment is persisted with, without urgent steps being taken, the following may take place:

a. The current litigation ends at the Constitutional Court (not known how long it may take); or

b. That the committee is directed to consider all the submissions which served before it prior to reporting to Parliament, which may imply that the committee reconvenes (a further time challenge);

c. Bill is drafted proposing an amendment;

d. All legislative processes, including consultative processes, consideration of submissions made, the passing of the bill and others must be embarked upon (time challenge).

It is necessary to revert to the question “what then?” As a first measure, the State may commence with non-expropriation programs to facilitate land access, a matter dealt with in paragraph 24 of the written submissions to Parliament. All the above may be done in terms of the Constitution and in compliance with the principles of the Rule of law.

A bo se ke bo idya (let us facilitate land access whilst we amend the Constitution).  

Matome Chidi is an attorney at Chidi Attorneys and an Author of a Book titled- Landlessness: A Constitutional Sin.

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