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Land restitution could date back to January 1800 if latest amendment on expropriation of land is passed as is

Parliament of South Africa. Picture Courtney Africa/African News Agency(ANA)

Parliament of South Africa. Picture Courtney Africa/African News Agency(ANA)

Published Aug 26, 2021


THE draft bill proposing the amendment of the Constitution to allow for land expropriation without compensation, is providing for people dispossessed of property after January 1800 to be entitled to restitution.

This bill was drafted by the parliamentary legal services based on the written submissions made to the committee mandated to amend the constitution.

The new clause became public as the National Assembly adopted a motion approving a two-week extension for the term of the committee that is expiring on Monday.

The National Assembly Programme Committee had, in the morning, dismissed a request to extend the term until November amid strong views that there was not much work left to be done.

The clause, which scraps the current 1913 cut-off date in the Constitution for land restitution, is likely to require further public participation beyond the lifespan of the committee.

This is because a note by the legal services said the clause might require permission from the House as it could be seen as extending the subject of the bill.

“The public, provincial legislatures and departments will have to be consulted as it is a substantial amendment to the bill.

“The joint tagging mechanism will also refer this to the National House of Traditional and Khoisan Leaders (NHTKL),” reads the document in reference to the 60-day consultation period.

The draft bill also provides for the state custodianship of certain land as a transitional measure in order for citizens to gain access to land on an equitable basis.

The report on the submissions said some submitters supported the amendment of the constitution in order to redress the 1913 land dispossession, where the government of the day took indigenous people’s land without compensation.

Freedom Front Plus chief whip Corne Mulder described the scrapping of the 1913 cut-off as the “Boer Republics are up for grabs”.

“We are really going down,” Mulder said.

Committee chairperson Mathole Motshekga said the management committee had mandated the legal services to produce a revised bill based on the public comments because there were new issues that arose from the submissions.

Motshekga said he was confident that the extension of the term of the committee would allow parties to consult and enable them to reach consensus.

DA MP Glynnis Breytenbach took a swipe at the last minute request for the extension of the committee.

Breytenbach said there was nothing that could not be finalised.

“We must make every effort to finalise in two weeks,” she said before accusing the ANC and EFF of changing goalposts because they knew they would not obtain a two-thirds majority to pass the amendment.

Mulder said the more they continued with the process, they got deeper into trouble.

He asked what would happen with public participation on the third draft bill as it appeared that it was selectively decided to be input.

Parliamentary legal adviser Charmaine Van der Merwe said the decision to extend the restitution period to 1800, to exclude the communal land from expropriation and other amendments could be subjected to public participation.

Van der Merve explained that both the proposed restitution January 1800 deadline and exclusion of the communal needed to be referred to NHTKL and provincial legislatures for consultation because they were material amendments.

Mathole lamented that the extension of their lifespan was not reasonable.

But, Van der Merve said the initial order paper with the motion for extension had asked for an extension until November 5, but she thought the two-week extension was granted without consideration of further amendments.

Motshekga initially granted the committee members to consult their parties on the draft bill until Monday.

“On Tuesday, we have a meeting to make inputs based on mandate and take a decision on the draft bill.”

He also said if they were not to attend to the matters raised by the public, they would be committing suicide.

“We will actually be saying what the people are saying does not matter. We will, therefore, be violating the Constitution, which makes public participation mandatory.”

He later ruled that they would meet on Friday to formally receive the reports on the written submissions, be briefed by legal services on the revised bill and also engage as a committee.

“For record purposes, we will have closed an important gap,” he said.

“When that is done, as the committee, we will be comfortable to take these documents to your principals for further consultation,” Motshekga added.

Political Bureau

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