While the ANC and EFF cooperated to adopt a recommendation that section 25 of the Constitution be amended to allow for expropriation without compensation in the Joint Constitutional Review Committee, parties opposed to the amendment did not rule out going to court after the committee's report is adopted in both houses of Parliament over what they consider procedural flaws.
On Thursday morning the committee met to decide if it would recommend that the Constitution be amended to allow for expropriation without compensation.
EFF deputy leader Floyd Shivambu proposed a recommendation that "section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution with regards to expropriation of land without compensation as a legitimate option for land reform so as to address the historic wrongs caused by the arbitrary dispossession of land and, in so doing, ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes".
This is the exact wording of the recommendation the ANC proposed in a document submitted to the committee last week. The EFF's proposed recommendation differed in substance to that of the ANC's, albeit also supporting expropriation without compensation.
The proposal also included several other points, also straight from the ANC's recommendations, except the recommendation that Parliament must table, process and pass a draft constitutional amendment bill before next year's elections.
Shivambu's proposal was seconded by Vincent Smith, the ANC's whip in the committee.
DA MP Annelie Lotriet made a counterproposal, highlighting the procedural shortcomings the DA and the other parties opposed to the amendment – Cope, ACDP, FF Plus and IFP – have raised in previous committee meetings. The DA's proposal advised against amending the Constitution, as an amendment is not necessary to effectively implement a progressive land reform programme.
12 votes against four
Lotriet's proposal was dismissed with 12 votes against four. Before the voting, EFF leader Julius Malema said: "Dismiss and dump it in the dustbin of history."
After some discussion, the EFF's proposal was whittled down to the main recommendation on the constitutional amendment and two further recommendations. These are that Parliament must urgently establish a mechanism to effect the necessary amendment to the relevant part of section 25 of the Constitution, and that Parliament must table, process and pass a draft constitutional amendment bill before next year's elections.
This proposal was adopted, also by 12 votes against four, with the ANC, EFF and NFP supporting it (Mncedisi Filtane, of the UDM who also supports an amendment, wasn't present at Thursday's meeting).
The two proposals weren't debated, a matter which was raised by FF Plus MP Corné Mulder.
As the meeting adjourned, ANC and EFF MPs left the meeting singing together.
At a press briefing after the meeting, Smith said the adopted recommendations were "chapter and verse of the ANC's presentation" and the "EFF's were quite different", but that it was not important who presented the recommendations to the committee.
"Clearly, political parties looked at each other's presentations and looked to meet each other halfway," he said.
He said the UDM and NFP were also "comfortable" with the ANC's proposals.
Committee co-chairperson Stan Maila said: "There is no party who can claim victory here. This is the people's victory."
ANC, EFF in a 'convenient coalition'
Opposition parties that opposed the amendment also had a press briefing after the meeting, and again raised their concerns with the procedures followed.
"Today, in a convenient coalition, the ANC, NFP and EFF voted to take land rights away from South Africans and decided to use their majority to recommend that Parliament should amend section 25 to allow for land expropriation without compensation," said DA MP Thandeka Mbabama, reading from a joint statement by the DA, Cope, FF Plus ACDP and IFP.
"The ANC and the EFF have essentially pushed this report through the committee, despite errors in procedure that have been wilfully committed by the committee and some of its members," continued Mbabama.
"The opposition is of the view that the final report is flawed as integral parts of the report are yet to be finalised."
The main point of concern is how the committee dealt with the hundreds of thousands of written submissions it received.
According to the opposition, some of these submissions were "arbitrarily disregarded and access to all submissions was limited".
Claims of intimidation, bullying at hearings
"The committee has thus not engaged, meaningfully or at all, with the contents of the written submissions."
They also complained that President Cyril Ramaphosa "pre-empted the outcome of the process with his late-night announcement that expropriation without compensation would proceed regardless".
"Additionally, the public hearings were characterised by high levels of intimidation and bullying with incidents of racial attacks on, and threats against speakers casting further doubt over the integrity of the process."
Mulder said in his 30 years as an MP he had never seen a committee not debating differing positions.
"Wow, what an experience," he said. "This is scary stuff we're dealing with. This is real scary stuff."
Cope MP Deidre Carter lamented that the "committee ignored whatever the opposition suggested".
Committee co-chairpersons Maila and Lewis Nzimande and Smith dismissed the allegations of procedural flaws.
"We did everything possible to go by the rules," Maila said.
He said Parliament had never had a public participation process like the one the committee had presided over.
"It wasn't compromised at all," said Nzimande.
'Nothing wrong with Ramaphosa's late-night announcement'
Smith said: "Politicians opposing the amendment are really grabbing at straws when they say there [was] bullying and intimidation. It's an attempt to discredit the process."
"Also, the notion that when President Cyril Ramaphosa made the announcement in July he cut us off at the knees must be debunked."
He said Ramaphosa stated his party's position, just like other parties have done.
"We must deal with it with the contempt it deserves."
They pointed out that members of the committee had the opportunity to go through the printed copies of the written submissions. Nzimande said there was also an electronic version of the submissions.
Over the course of the Joint Constitutional Review Committee's last few meetings, it became clear that the parties opposed to an amendment were gearing up for a possible court challenge – "we reserve our rights" was a refrain in those parties' observations.
There are no such steps in the works just yet.
"At this point, we will follow the process to its logical conclusion," Lotriet.
Opposition to participate in debate
The committee's report will be tabled in the National Assembly and National Council of Provinces. It will then be debated before being put to a vote for adoption.
"And then obviously we'll look at the available options," Lotriet said.
Mulder said they would participate in the debate, which will probably be on November 27.
"We as political parties will look at the options and at the right time make the right decision," he said.
Lotriet said the process was obviously open for review.
"Our first expectation would be that the process is followed in terms of the Constitution," she said.
"The process must be perfect, that would be our primary expectation."