ANTHEA JEFFERY: Procedural defects bar president’s assent to expropriation bill

The expropriation bill of 2020 was passed by parliament in March and needs only President Cyril Ramaphosa’s assent to become law. However, under section 79 of the constitution the president may not sign a bill into law if he “has reservations about its constitutionality”. Instead, he must refer it “back to the National Assembly for reconsideration”.

Bills also cannot pass constitutional muster unless parliament ensures adequate “public involvement” in the process of their adoption. If this requirement is not met the bill must be struck down, as the Constitutional Court has repeatedly ruled in dealing with other statutes (and as the Institute of Race Relations (IRR) pointed out in a letter and petition to Ramaphosa requesting him not to sign this bill.

In the New Clicks judgment by the apex court justice Albie Sachs said there were many ways in which public participation could be facilitated. “What matters is that ... a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say,” he said.

The best way for the public to “know about the issues” is via the comprehensive socioeconomic impact assessment (SEIA) report meant to accompany every bill released for public comment. This report must analyse a bill’s “likely implementation and compliance costs” and warn against any “excessive costs” likely to result, such as “disinvestment by business”.

The expropriation bill is already deterring investment in commercial farming, as both Agri SA and the Banking Association SA warned. Yet the sole SEIA report (drawn up on a 2019 version of the bill) claims that it will “reduce unemployment [and] poverty”, while boosting “entrepreneurship, food security and ... the productivity of the nation”. This assessment ignores how expropriation without compensation (EWC) triggered economic collapse in Zimbabwe and Venezuela, and is clearly calculated to mislead rather than inform.

Meaningful public participation also demands that people “have an adequate say” on the legislation that is to govern them. Yet the portfolio committee on public works and infrastructure in the National Assembly failed to consider about 15,000 written and emailed submissions. Moreover, in dealing with the remaining 120,000 emailed submissions it focused solely on “clause-specific comments” and brushed aside all other evidence and analysis.

The committee thus ignored important warnings about the likely economic damage from the bill and the risks to democracy in facilitating EWC. The committee also overlooked the bill’s inability to overcome the problems impeding land reform, which range (said the high level panel of parliament in 2017) from the government’s policy of denying land ownership to emergent farmers to corruption and “the diversion of land reform budgets to elites”.

As regards oral presentations to parliament, the general rule is that anyone who provides a written submission and asks to make an oral presentation should be given the chance to do so. But the portfolio committee was in such a rush that only 33 oral presentations (out of a total of 135,000 written submissions) were allowed. In addition, many of those who spoke — whether to the committee hearings in parliament or during the public hearings held in SA’s nine provinces — had so little information about the bill that they thought it aimed to amend the constitution to allow EWC.

Despite a large volume of evidence and argument against the many damaging and unconstitutional provisions in the bill, the National Assembly made only limited changes to the text in adopting a “B” version of it on September 27 2022. This version then went to the select committee on transport, public service & administration, public works & infrastructure in the National Council of Provinces (NCOP). Since the bill significantly affects the provinces, the NCOP committee needed to ensure proper public consultation among provincial populations. Instead, it allowed a mere 30 days for written submissions, even though the Constitutional Court has stressed that “truncated timelines” may be “inherently unreasonable”.

The NCOP committee also required that all written submissions be made via a Google Forms facility. This form allowed people to make clause-specific comments but provided no opportunity to raise wider concerns. This was inherently unreasonable, since it prevented the public from having their say on many of the most important issues raised by the bill.

Four of the provinces that subsequently endorsed the bill, in an NCOP committee meeting on March 13, appear to have lacked proper final voting mandates. According to the DA, three of these provinces had failed to put necessary reports before their provincial legislatures, while a fourth had not yet submitted its final mandate. Since the Western Cape rejected the bill, the remaining four provinces with proper voting mandates could not command the necessary five province majority. This casts doubt on the validity of the NCOP’s adoption of the bill on March 19.

In addition, there was no public consultation at all on an important clause added by the NCOP committee after the period for public comment had closed. This clause in effect changes the definition of expropriation by authorising two types of expropriation: that which transfers ownership to the state and that which transfers ownership directly to third parties.

The ramifications of the change are extensive, but difficult to evaluate. The ostensible aim is to allow ownership to pass directly to third-party beneficiaries of land and water reform. The potential scale of such transfers is difficult to predict. Many other direct transfers to third parties — of mining rights, shareholdings and other property — could also be implemented.

Yet the public was denied any opportunity to know anything about this new definition and to have their say on it. This too is a major procedural defect. It is also inconsistent with the Constitutional Court’s 2023 judgment in SA Iron & Steel Institute and others v Speaker of the National Assembly and others. Here, the apex court struck down new definitions of “waste” that were introduced at a late stage and without any public consultation on their wide-ranging ramifications.

The Expropriation Bill remains a draconian measure that will incentivise hundreds of cash-strapped municipalities and other state entities to expropriate property of almost every kind for nil or inadequate compensation. This will stifle investment, shrink the economy and worsen the unemployment crisis. It will also undermine the rule of law and many guaranteed rights. Parliament should never have adopted a measure so clearly in conflict with the constitution. Nor should it have turned the public consultation process into a meaningless “tick-box” exercise.

The onus now rests on the president to right these wrongs. Since he has an overarching obligation to “uphold, defend and respect the constitution as the supreme law”, he must decline to give his assent to a bill that is so unconstitutional in its content — and so procedurally flawed in the manner of its adoption by the legislature.

• Dr Jeffery is head of policy research at the Institute of Race Relations.