Explainer: Here's What The Process Of The Public Hearings Entails

Director of the Centre for Constitutional Rights unpacks what the process of the public hearings on land reform and what the process entails.
Workers rest near a tractor collecting timber in Howick, KwaZulu-Natal Province, South Africa March 9, 2018.
Workers rest near a tractor collecting timber in Howick, KwaZulu-Natal Province, South Africa March 9, 2018.
Siphiwe Sibeko/ Reuters

The constitutional review committee will engage with members of the public from Tuesday on whether Section 25 of the Constitution should be amended. This process will allow everyone to express their views.

HuffPost asked Phephelaphi Dube, director of the Centre for Constitutional Rights (CFCR), to unpack what the process of the public hearings on land reform is, and what it entails.

This is a Q&A with Dube:

Q: How does the public consultation process work? Written submissions have been received; but who gauges the mood of the public hearings, and is there space for error/bias/manipulation in this process?

Phephelaphi Dube: The process involves individuals appearing before the committee and delivering their views regarding the possibility of amending the property clause as per the resolution adopted by the National Assembly on February 27 2018. Thereafter, the members of the committee will pose clarity-seeking questions to the individuals and also to test the feasibility of the submissions made.

The fact that the hearings are open to the public and that the committee is drawn up of individuals from different political parties makes the process less prone to manipulation. It is however important for members of the public to inform themselves of the process in order to safeguard against any irregularities which may arise. For example, where members of Parliament refuse to listen to submissions with which they do not agree.

Q: Once the hearings are concluded and the recommendations to the National Assembly and the National Council of Provinces have been tabled, what will happen?

Phephelaphi Dube: Should the committee recommend the amendment to section 25, then the National Assembly would be required to vote in either support of or against the recommendation from the committee. In order to pass the resolution, at least two-thirds of the total number of members of the National Assembly (267 votes) is required.

In addition, 6 of the 9 provincial delegations of the National Council of Provinces (NCOP) would need to support the resolution. Should both the NA and the NCOP vote in favour of the resolution, then the amendment is passed on to the president for his assent, after which it would become part of the Constitution.

Q: Do property rights enshrined in the constitution have to be changed to allow the state to perform its task of land expropriation and reform? If not, does the public have enough knowledge about this matter to ignore general politicking?

Phephelaphi Dube: The Constitution currently provides for land reform to ensure equitable access to natural resources. It further provides for land redistribution through expropriation "subject to just and equitable compensation" — which needs not be at market value. As such, the Constitution grants the state extremely wide powers with far-reaching consequences in order to ensure that South Africa is a more just society.

However, the state has largely failed its land reform obligations, due in part to the governing party's adoption of a "willing buyer willing seller" approach to land redistribution, which made land reform unaffordable. Further, the state has failed to enact land-redistribution legislation leading to policy uncertainty in land redistribution.

As such, despite the provisions of the Constitution, the state has largely failed to discharge its constitutional obligations regarding land reform. Arguably, there is no need to amend the Constitution to secure property rights for all South Africans. It is therefore important that members of the public are empowered with relevant information in order to allow the public to sift through political rhetoric, so that workable solutions to the problems of land reform are found.

Q: If at the end of written submissions and public hearings, the committee finds that it is not necessary to amend the Constitution, can the ANC/parliament/the state still amend the Constitution as they please?

Phephelaphi Dube: The Constitutional Court in 2010 struck down the Communal Land Rights Act on the basis that Parliament had followed incorrect processes and had failed to facilitate sufficient public consultation. This means that it is important for Parliament to reflect the concerns of the public and also enact laws which reflect the will of the people.

In terms of the rules of the National Assembly, the committee tables its report and recommendations as to the possibility of amending section 25 before the National Assembly, and then the speaker must place the amendment on the order paper for debate.

Although the National Assembly cannot at this stage make amendments to the committee's recommendations, the National Assembly can either pass the committee's recommendations or choose not to proceed with the intended amendments to section 25.

In terms of the rules of Parliament as read with decisions from the Constitutional Court, the procedure does not allow the ANC/parliament/state to amend the Constitution in contradiction to public opinion and due process.


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