PUBLIC PARTICIPATION: EXPROPRIATION BILL B4D 2015

Introductory words In this Bill did the people have a voice heard by their representatives, considered and influenced the final decision? Reservations of the President in respect of Bill relates to the facilitation of public involvement which may render the Bill unconstitutional if such obligation was not satisfied. Apparent is that a referred Bill becomes joint business of the Houses.

Structure & objectives Referral letter from the President What Parliament must do when a Bill is referred back by the President: s 79 Relevant Rules of Parliament Case law: LAMOSA, Doctors for life, Matatiele What is facilitating public participation & public involvement?

Referral letter Rhetorically speaking: President has thrown the sink and the baby back to Parliament on this Bill in terms of s79 of the Constitution. Back as 2016, President indicates he received petitions against the signing of the Bill. Both procedural and substantial concerns were raised.

Some of procedural issues:20.7.16 NCOP and some provincial legislatures acted inconsistently with the Constitution when passing the Bill. E.g flawed mandates as others were submitted after the due date. NCOP failed to facilitate sufficient consultation with the public. Bill was not referred to the NHTL in terms of s18 of the TLGF Act 41 of 2003

Referral letter 2016 It seems that President has sent two referral letters on this Bill. 20 July 2016 and 14 February 2017. Were the negotiating and final mandates indeed flawed? Did indeed the NCOP fail to conduct and facilitate sufficient consultation with the public prior to adopting the Bill? Hence conferral may be necessary.

Referral letter 2016 continued What are the reasons the Bill was not referred to the National House of Traditional Leaders? President sought advise in relation to these concerns in 2016 from Parliament: Speaker and Chairperson. During the time President wrote his 2016 letter he had not made a decision whether he is referring the Bill back but merely asked to be informed.

2nd letter: current referral Substantive concerns Procedural concerns S79 referral to Speaker President’s reservations on the constitutionality of the Bill. Bill gives effect to the state for the right to expropriate property including land. President draws Parliament to the following case law: Matatiele, Doctors for life & LAMOSA judgments No proper consultation was done by the NCOP and provincial legislatures. President indicates this as a worrying assertion from the petitions. NCOP response to the President in 2016’s letter for advise did not addressing the issues he raised.

2nd letter concerns President notes that LAMOSA unanimously found that Parliament failed to facilitate adequate public participation as required by s72 and 118 of the Constitution during the Restitution of Land Rights Amendment Bill processing into law. He has concluded that the Expropriation Bill may not pass constitutional muster and suffer the same fate as the Restitution of Land Rights Bill.

2nd letter reservations President therefore referred the Expropriation Bill to Parliament for- 1. lack of public participation 2. Failure to refer it to the NHTL 3.insufficient facilitated public participation by NCOP or NA? Parliament Rules require that when a Bill is referred consideration thereof goes no further than the reservations of the President. Challenge in this instance is that facilitation of public participation opens up the whole Bill.

Public facilitation vs public involvement Facilitation deals with how you bring public input to influence the decision maker. This is where our jurisprudence states Parliament has a broad scope and leeway to decide on the how. Public involvement is an obligation required in every Bill processing to give effect to participatory democracy.

What is facilitating public involvement S72(1)(a) in respect of the NCOP S118(1)(a) in respect of provincial legislatures S59(1)(a) in respect of the National Assembly LAMOSA said the “the failure by one of the Houses of Parliament to comply with a constitutional obligation amounts to failure by Parliament.” See paragraph 82 of LAMOSA See para 37&38 of Matatiele

PUBLIC PARTCIPATION CASE LAW LAMOSA DOCTORS FO LIFE Effective engagement between the public and legislatures allow for an appropriate dialogue between the elected representatives of the people and the people as the electorate and the governed. Failure by one house as the public representatives is failure of Parliament. Facilitation of public participation is a constitutional requirement and obligation in order to ensure an open and transparent government when legislative organs make laws. Duty to facilitate public involvement embraces the principle to consult and participate.

FACILITATING PUBLIC ENGAGEMENT DOCTORS FOR LIFE MATATIELE JUDGMENT Parliament has a broad discretion to determine “how” best to fulfill this constitutional obligation in each case. There must be meaningful opportunity to hear those who are consulted and they must participate in the legislative making process No provision of the Constitution must be considered in isolation of the others but each must be construed compatible with one another and the basic principles of our constitutional democracy which is both participatory and representative democracy.

Matatiele judg S118 envisages that a Provincial Legislature will facilitate public involvement whenever it is engaged in a legislative process. Provincial legislatures are required to participate in national law making process hence s75 and 76 Bills’ provisions and take part as prescribed. The duty to facilitate public involvement is conferred on all legislatures at national (Parliament), provincial (Provincial Legislatures) and local level.

Duty: facilitate public involvement NA obligation NCOP obligation To determine whether Parliament complied with the duty the courts looks at whether what was done was reasonable under the circumstances. What the rules say & public participation model Nature of legislation and impact to provinces Factors to find reasonability: urgency existing or not in the enactment. S76 Bills Are the methods chosen to facilitate public engagement appropriate and adequate? Autonomy of Parliament respected and balanced with public right to participate in pa

Requirements of the duty Has the legislature taken steps to afford the public a reasonable opportunity to participate effectively? S59(1)(a) Facilitate public involvement in two aspects: 1. provide meaningful opportunities for public participation 2. take measures ensuring that the people are able to take advantage of presented opportunities.

MEANINGFUL ENGAGEMENT WAY FORWARD NCOP:SC &PL President’s reservations & remits bill MEANINGFUL ENGAGEMENT Portfolio Committee address referral PASSWORDS Passwords are an important aspect of computer security Some of the more common uses include: Novell accounts, web accounts, email accounts and screen saver protection. How PL involves public 18

Content of the Bill The memorandum on the objects of the Bill provides purpose and a good summary for each clause of the Bill. If there are clarity sought questions I will take those but the Bill speaks for itself. It provides guidance and framework that must be consistent throughout government on how expropriation for any property can take place. SECTION HEADING G

REFERRAL PROCESS CONTAINED TO RESERVATIONS President suggests consideration of inputs from NHTL. If NA feels what was done by the PC during public hearing rounds seem insufficient, the PC may call for further new submissions from the public Consideration of new inputs Committee recommends

Parliament rules Only Joint Rules (JR) 6, 202 to 212 and 222 deal with Bills remitted in terms of s79 of the Constitution. National Assembly Rules (NA Rule) 333 deal with the lapsing of bills. Has not lapsed because it was not on the order paper and so need not be revived as it is still committee work. So this is joint business of both Houses of Parliament

Comments from NHTL Touches on a number of Bill’s provisions which means it opens substance of the Bill hence not only restrict reservations of the President to procedural defects. JR 202 to 222 comes into play. Can their comments correct the reservations of the President? If so A new Bill may be necessary taking into account any other public inputs.

AT THIS POINT WE SHOULD ALL BE CLEAR WHAT TO DO