Parliament in Cape Town. Picture: SUNDAY TIMES
Parliament in Cape Town. Picture: SUNDAY TIMES

The urgent court application by lobby group AfriForum to halt the parliamentary process related to a possible amendment to the constitution to facilitate land expropriation without compensation is an attempt to gag the institution and should be struck off the roll or dismissed, both with punitive costs.

This is the argument made in an answering affidavit to AfriForum’s application by the co-chair of the joint constitutional review committee, Lewis Nzimande, on behalf of parliament. His co-chair, Stan Maila, confirmed the affidavit.

AfriForum has applied to the high court in Cape Town to restrain the committee’s report from being passed on to parliament as an interim measure pending a court action to have the committee’s adoption of the report declared unlawful.

The committee recommended that section 25 of the constitution be amended to make it explicitly clear that expropriation of land without compensation by the state can take place in the public interest.

Proper public participation

AfriForum argued that the committee had not fulfilled its duty to undertake proper public participation as required by the constitution. It argued that the report was flawed and failed to consider hundreds of thousands of written submissions opposing an amendment. It also questioned the work of a service provider tasked by the committee to analyse the written submissions.

AfriForum says the committee abdicated its powers by allowing a third party to assess the written submissions.

In his affidavit, Nzimande accuses AfriForum of deliberately trying to frustrate parliament’s legislative processes. The committee’s report, he stressed, was not final in its effect as it would still be referred to the National Assembly and the National Council of Provinces for adoption or rejection.

If accepted, a bill will be introduced and there will be another opportunity for public participation.

AfriForum could not pre-empt or prejudge the outcome of parliament’s consideration of a proposal to amend the constitution. It will have an opportunity to challenge an amendment to the constitution if parliament adopted this.

Nzimande also points out that the high court has no jurisdiction to hear the matter, as it is still pending.

“AfriForum should have waited and sought to challenge the amendment to the constitution if one is passed,” he said.

He also noted that only the Constitutional Court could decide that parliament or the president had failed to fulfil their constitutional obligations.

The application, Nzimande said, was “deliberately aimed at shutting down parliament’s ability to consider policy options that AfriForum disapproves of. Only an act of parliament can be interdicted from coming into effect and/or challenged for want of legality.”

He said AfriForum’s application should not be granted any relief as “that will have the effect of denuding parliament of its proper role in a constitutional democracy”.

Nzimande insisted that the committee did not exclude any submissions except where they were inquiries, were unrelated, or were blanks or duplicates. He said there had been “reasonable” public participation.