DEPARTMENT OF PUBLIC WORKS PRESENTATION: EXPROPRIATION BILL [B4D- DEPARTMENT OF PUBLIC WORKS PRESENTATION: EXPROPRIATION BILL [B4D- 2015] FORUM: PORTFOLIO COMMITTEE ON PUBLIC WORKS WORKSHOP DATE: 30 JANUARY 2018

TABLE OF CONTENTS   Purpose Background The President’s letter Joint Rules of Parliament Case law implications on the Expropriation Bill Recommendations

1. PURPOSE This presentation aims to achieve the following objectives; Assist the Portfolio Committee on Public Works in the deliberations on facts surrounding the remission of the Expropriation Bill back to Parliament; Assist the Portfolio Committee on Public Works to assess options available to address the issues raised in the President’s letter concerning the Bill; and Put forward some recommendations for the Committee’s consideration.

2. BACKGROUND The Minister of Public Works tabled the Expropriation Bill in Parliament in February 2015. More than a year later, on 26 May 2016 Parliament passed the Expropriation Bill [B4D-2015] into law. Thereafter, the Bill was transmitted to the President for assent as required by the Rules of Parliament. Several interested parties thereupon directed written objections to the President dissuading him from signing the Expropriation Bill into law. Accordingly, the President directed a formal enquiry on this matter to both the Speaker of Parliament and the Chairperson of the National Council of Provinces (NCOP). By letter dated 19 July 2016, the Chairperson of the NCOP replied to the President’s enquiry and concluded:“We are satisfied that the National Council of Provinces complied with the requirements of the Constitution and the Rules in processing the Expropriation Bill [B4D-2015] and there is no merit in the outlined procedural issues.” On 27 September 2016 the Minister of Public Works added his voice by directing the President’s attention to the precedent set by the LAMOSA judgement based on similar circumstances.

3. PRESIDENT’S LETTER On 14 February 2017 the President decided to remit the Expropriation Bill [B4D-2015] to Parliament in terms of section 79(1) of the Constitution,1996. This fact is contained as an announcement in Parliament’s ATC Reports of 20 February 2017 The President required Parliament to address four issues he raised regarding the Bill which are; Whether it is indeed correct that the negotiating and final mandates procedures in some provincial legislatures were flawed. Whether it is indeed correct that the NCOP failed to facilitate sufficient consultation with the public prior to the adoption of the Bill. The reasons why the Bill was not referred to the National House of Traditional Leaders. The merit of the submissions in so far as they relate to the procedural issues outlined above.

4. JOINT RULES OF PARLIAMENT Part 8 of the Joint Rules of Parliament deals with Bills referred back to Parliament by the President; Part 8 of the Joint Rules of Parliament applies to section 76 Bills of which the Expropriation Bill is one. It is arguable that the four reservations raised by the President in respect of the Expropriation Bill are primarily of a procedural nature. It would seem the intention of the drafters of the Joint Rules of Parliament was to require that the referral back to Parliament either explicitly state that it as founded on a procedural or substantive defect depending on the objections received by the President. It is for this reason that the joint rules expressly and under separate headings deal with referrals based on procedural or substantive reasons or both. An unavoidable consequence of addressing a procedural defect could be to open up the possibility of previously unconsidered substantive issues.

4. JOINT RULES OF PARLIAMENT The President requires Parliament to give reasons why the Bill was not referred to the NHTL. It is mandatory to refer a Bill to the NHTL in terms of S18(1) of the Traditional Leadership and Governance Framework Act, 2003 if it contains provisions dealing with customary law or customary traditional communities. The CSLA advised in paragraph 13 of the memorandum on the objects of the Expropriation Bill against referring the Bill to the NHTL on the basis that its provisions did not affect customary law or customary traditional communities. The entry point of a Bill remitted by the President in terms of section 79 (1) of the Constitution to Parliament is joint rule 203 which deals with referral to Assembly committee. Rule 203 requires that where appropriate, the Assembly committee confer with the corresponding Council committee if, amongst others, the issue in the Bill pertains to a procedural matter

4. JOINT RULES OF PARLIAMENT Joint Rule 203 must be read with joint rule 204 which deals with Debate and decision. Joint rule 204 (4) is couched in peremptory terms and avails to the Assembly the option of approaching the issue either in terms of rule 205, 206, or 208. The President’s concerns on the Bill appear to fall within the purview of joint rule 205 which deals with procedural defects and should be read with joint rule 207. The application of joint rule 208 would be optional depending on the findings of the Assembly during its deliberations. Joint rules 209, 210 and 211 deal with Council procedure and are relevant in this instance since two of the President’s issues in the letter specifically raise matters falling within the NCOP jurisdiction.

5. CASE LAW IMPLICATIONS ON THE EXPROPRIATION BILL The are striking similarities particularly in the procedural issues that unfolded during the hearing of LAMOSA and Others and Chairperson of the NCOP and Others CCT40/15 and those that were raised by the objections submitted to the President regarding the processing of the Expropriation Bill [B4D-2015] in Parliament. The LAMOSA litigation and that of similar Constitutional Court cases such as Doctors for Life International and The Speaker of the National Assembly and Others CCT12/05, Matatiele Municipality and Others and President of RSA CCT73/05 raised the elusive issue of the adequacy of public participation in the legislative making process. The applicants in the LAMOSA case sought an order declaring the Restitution of Land Rights Amendment Act invalid for failure by the NCOP and some or all Provincial Legislatures to facilitate adequate public participation before the Act was passed as required by section 72(1)(a) and 118(1)(a) of the Constitution,1996. LAMOSA reiterated the notion upheld in Doctors for Life that South Africa’s democracy contains both representative and participatory elements. The Court observed that these elements are not mutually exclusive but instead shore each other up.

5. CASE LAW IMPLICATIONS ON THE EXPROPRIATION BILL. In Doctors for Life at paragraph 29 the Constitutional Court pointed out that section 42(1) of the Constitution defines Parliament as being the National Assembly and the NCOP. This means that the failure by one House to observe its distinct obligation to facilitate public involvement in the law making process can be imputed as a failure of Parliament as a whole in its Constitutional obligation. It is possible however, that the Court can accept that the public consultation process in one of the Houses was constitutionally compliant as was the case in LAMOSA. The Constitution saddles the National Assembly (s59), the NCOP (s72(1)) and Provincial Legislatures with separate but parallel obligations to facilitate public participation. The Constitution demands that the public must be afforded a meaningful chance of participating in the legislative process before Parliament can be adjudged to have discharged its duty herein.

5. CASE LAW IMPLICATIONS ON THE EXPROPRIATION BILL. The Court in Doctors for Life opted for reasonableness as a standard to be used to assess whether Parliament had met its obligation of facilitating public participation. The Court went on to observe that what can be regarded as the reasonableness of Parliament’s conduct will depend on the facts and circumstances of each case. The public consultation timelines were subjected to scrutiny by the Court in its assessment of the adequacy of public consultation or constitutional compliance.

5. CASE LAW IMPLICATIONS ON THE EXPROPRIATION BILL. Public notification, choice of venue, choice of language, time allocated for consultation and availability of copies of the Bill were subjected to scrutiny as elements of the assessment of the adequacy of consultation in LAMOSA. The scrutiny exercise in LAMOSA extended to the NCOP Negotiating mandates including whether delegates had attended. The laxity of the Provincial Legislatures to share public consultations reports to ensure that they inform the NCOP Negotiating mandates process was also considered as relevant. It was as a result of the lack of sharing of reports between the Provincial Legislatures that it became impossible in LAMOSA for the NCOP Select Committee Members to achieve a uniform understanding of public concerns across the country.

5. CASE LAW IMPLICATIONS ON THE EXPROPRIATION BILL. In the end the Court in the LAMOSA case held that given the importance of the legislation the public participation process had been unreasonable and constitutionally invalid. A thorough consultation process was warranted in the circumstances. The Court went on to echo Doctors for Life by stating: “ the timetable must be subordinated to the rights guaranteed in the Constitution , and not the rights to the timetable.” An important point made in Doctors for Life was that the NCOP may facilitate the public participation process through the Provincial Legislatures and this in no way subordinates them to the authority of the NCOP.

6. RECOMMENDATIONS It is recommended that the Portfolio Committee on Public Works; Acknowledge the striking similarities between the unreasonable public participation process that took place in the NCOP and Provincial legislatures in the LAMOSA judgment and the process of the Expropriation Bill ]B4D-2015]; Identify and implement all the procedural guiding principles and/or yardsticks enunciated in the LAMOSA and Doctors for Life Cases; Parliament develop standards for the application of the Public Participation Process The NCOP and Provincial Legislatures share public participation reports; The Portfolio Committee reach consensus on the correct Joint Rules to apply to the facts of the Expropriation Bill [B4D-2015] In doing so, consider the importance of this Bill for the Country.

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