Picture: David Ritchie/African News Agency (ANA) Archives

The Institute of Race Relations (IRR) is briefing lawyers in preparation for taking on judicial review the Constitutional Review Committee’s procedurally flawed work on the pressing national question of expropriation without compensation (EWC).

The committee today formally resolved to recommend the amendment of section 25 of the constitution to allow for expropriation of land without compensation. This is nationalisation by another name, a change that will have disastrous economic, social, and political consequences for all South Africans.

The consequences of the hard-fought debate about EWC is the most consequential moment in South Africa’s governance framework since the constitution was adopted in 1996, and it is vital that whatever its outcome, the process must be regarded as legitimate.

However, while the invitation for public comment elicited more than 720 000 written submissions – about 80% of which were opposed to EWC – the committee has failed to consider these comments and makes its recommendation without ever having looked at 99.9% of them.

Yet, the committee has a constitutional obligation to hear and heed what South Africans have said on the EWC issue. The IRR is determined to ensure that it fulfils this obligation. 

The hundreds of thousands of submissions which people took the trouble to send in must be fully taken into account, not effectively relegated to the rubbish bin, as the committee currently seems intent on doing. 

EWC is a divisive issue, and, for this reason, the integrity and credibility of the process needs to be beyond reproach. 

Key to this is public participation. It is a South African best practice of sorts – one which is required by the country’s constitution and has been the subject of a number of court cases. As these cases have made clear, public participation must be ‘meaningful’. 

The words of a seminal judgment from 2006 – Doctors for Life International v The Speaker of the National Assembly and Others – are worth quoting: "Interested parties are entitled to a reasonable opportunity to participate in a manner which may influence legislative decisions. The requirement that participation must be facilitated where it is most meaningful has both symbolic and practical objectives: the persons concerned must be manifestly shown the respect due to them as concerned citizens, and the legislators must have the benefit of all inputs that will enable them to produce the 
best possible laws."

Participation reflects an inherent right of ordinary people to be involved in their own governance, and not merely to exist as passive subjects. It is both an affirmation of citizenship, and a means of improved governance.

Nonetheless, the quality of public participation has all too often been viewed in many quarters as inadequate. 
 
The Constitutional Review Committee had the considerable responsibility of soliciting and facilitating public participation in consideration of a possible constitutional amendment. (It is as well to note that on the big question – whether EWC will become policy – no public discussion is being offered. It is simply treated as a done deal.) Much was promised of this process. Politicians and sympathetic analysts gave assurances that this would enable a ‘South African’ solution, one in which all points of view would be heard and considered. 

By all accounts, the quality of that process has left a great deal to be desired. Early on, the Free Market Foundation warned that the timeframe proposed was simply too short – there were cases in which pedestrian technical regulations had been allotted more time. The truth of this was only highlighted when submissions started to pour in. 

In June, then-committee co-chair Vincent Smith indicated that some 720 000 written submissions had been received. Smith himself described the scale of interest and public engagement as being beyond anything previously undertaken. ‘In terms of public participation, it is incontestable, it is unprecedented,’ he said in an interview.

He added: ‘In terms of the weight of the importance: the fact that we got over 500 000 [submissions] shows that South Africans are taking it seriously, that it is a matter that is close to their hearts. It is a sensitive matter, it must be dealt with accordingly.’

Fine sentiments, not matched by action. The task of analysing the submissions was a daunting one indeed. Initial efforts to do so – contracted to a staffing company – were ineptly carried out and rejected by the committee in late September. This created a situation in which hundreds of thousands of submissions would need to be read and analysed.

Doing this was always a doubtful proposition, and it seems that a highly questionable ‘resolution’ has been settled upon. 

Firstly, for reasons that remain opaque, the number of written submissions the committee has accepted as valid is put at 450 000. (This probably represents an attempt to count the thousands of submissions that use a common template as a single one – a strategy with no validity, as we at the Institute of Race Relations have warned the committee since each of these represents the concerns of a unique, engaged, South African citizen. Reducing these to single submissions would negate the voices, and hence the participation, of thousands of people.) 

Secondly, the importance of written submissions and of their place in the public participation scheme was dramatically underplayed. Mr Smith was recently quoted on Businesslive as saying: ‘We should not leave here thinking that we did not apply our minds…we had more than 400 000 written submissions and we will not be able to process all submissions …We took a decision to do a sample and we did a sample [of about 400] and I am happy that from the sample we have an idea of what South Africans are saying.’
 
It is difficult to see this as anything other than an abandonment of any real pretence of studying the submissions ‘meaningfully’. 
 
Tebogo Mokwele of the Economic Freedom Fighters argued that this was not a referendum, and so numbers do not matter. It would be more accurate to say that numbers alone may not be decisive, but the weight of public opinion should no doubt play a role. Mokwele did make a substantive point in saying that the quality of submissions is crucial. Yet by ignoring the vast majority of them, by focusing on a scanty ‘sample’, it is precisely people’s arguments that will be excluded from consideration.
 
Thirdly, there has been an appeal to populism. So it is claimed: the mood of ‘our people’ (however that may be defined, but almost certainly not referring to all South Africans) is clear and no more investigation needs to be undertaken. No one has articulated this more baldly than President Ramphosa in his late-night address at the end of July. Although the public participation process had not yet run its course, ‘it has become patently clear that our people want the Constitution to be more explicit about expropriation of land without compensation, as demonstrated in the public hearings.’  
 
Pro-EWC and amendment sentiment was certainly in evidence at the public hearings, and this deserves to be taken into account. But it was enormously revealing that the then incomplete public hearings were put forward as trumping all other parts of the participation process. 

There was an increasingly rancid odour of predetermination in the air. It is difficult to see how it can claim even a passing deference to the ‘meaningful’ participation that the committee was meant to facilitate, and the constitution demands. 

This helps corrode faith in South Africa’s law-making processes, which, irrespective of where one stands on this issue, should concern us all.

* Terence Corrigan is a project manager at the Institute of Race Relations.