The Western Cape High Court  will hand down judgement on Friday on lobby group Afriforum’s application to interdict the parliamentary process on the possible amendment of the constitution to allow land expropriation without compensation.

After hearing arguments on the application on Thursday,  Judge Vincent Saldanha hinted that he and fellow judge Mokgoatji Dolama might reject  Afriforum's application. 

However, Saldanha told the court at the end of the day’s proceedings that even if the court rejected the urgent application it was obliged to hear the second leg of Afriforum’s application.

This related to the application for a declaratory order that the adoption of the report on land expropriation without compensation by the joint constitutional review committee was unlawful and should be set aside.

The committee recommended in its report to parliament 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.

Afriforum applied for an urgent interim interdict to restrain the committee’s report from being passed on to parliament as an interim measure pending its court action.

It wanted the report to be referred back to the committee. This would prevent the National Assembly debate on the committee's report from taking place as scheduled on Tuesday.

Saldanha was concerned however that the pending court action by Afriforum did not interfere with parliamentary business. In terms of the separation of powers, only the Constitutional Court is able to intervene in parliamentary processes. "Parliament needs to get on with its business," the judge emphasised.

Afriforum claimed that the review committee unlawfully and unconstitutionally delegated its powers to consider public submissions on the constitutional amendment to an external service provider when this was its  function.

It also argued that the service provider invalidly decided to exclude about 176,000 duplicate submissions — of the 639.000 written submissions received — which violated the constitutional right to public participation.  More than 100,000 identical submissions under different names were made from Afriforum’s website.

Advocate Tembeka Ngcukaitobi, appearing for parliament, pointed out the committee’s report had already been passed on to the National Assembly so Afriforum’s urgent application was too late.

“The bus has already left the station,” Ngcukaitobi said.

Another question debated between Afriforum’s advocate Etienne Labuschagne and the two judges was the meaning of “meaningful participation” with Saldanha emphasising that this was neither a numbers game nor a referendum. The fact that duplicate submissions were excluded did not mean that the original was not considered, the judge said. Furthermore, as Ngcukaitobi pointed out, the committee had said it had considered the duplicates and decided itself to exclude them.

The committee concluded that there was a 65% opposition to an amendment to the constitution, but Afriforum said if the excluded duplicates were included the figure would have been 74%. Ngcukaitobi said the percentage was inconsequential as it was common cause that there was overwhelming opposition to an amendment in the written submissions and oral hearings and overwhelming support during public hearings.

The committee was not obliged to make a decision on the basis of a majority view.

Ngcukaitobi argued that Afriforum’s case was not urgent as Afriforum should have known already on September 14 what the scope of work assigned to the external service was as this was when the service provider submitted its report to the committee. If the provider had usurped the committees functions, this would have been known at that stage and it was then that the application for an urgent interdict should have been brought.

He pointed out that there would be further opportunity for public participation during the next phase of the process.ensorl@businesslive.co.za