The Cape Town high court on Friday dismissed lobby group AfriForum’s urgent application to interdict the parliamentary process on the possible amendment to the constitution to allow for land expropriation without compensation.

AfriForum had launched an urgent application to stop a report by the joint constitutional review committee from being passed on to the National Assembly as an interim measure pending its main court action. MPs are due to debate the report on Tuesday, before it is forwarded to the National Council of Provinces for concurrence.

In its second leg of its application, the lobby group wants 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. It wants the public participation process reviewed. This part of the application will be heard on a later date.

The group 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 that 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. He pointed out that there would be further opportunity for public participation during the next phase of the process.

Considering the written submissions, 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, as the process was not a referendum.

Last week parliament said it believes AfriForum’s application is “ill-advised, abusive to the court processes, premature and is intended to gag both parliament and thousands of South Africans who expressed their views through the public participation process.”

Earlier in November, the constitutional review committee formally resolved to recommend that the property section of the constitution be changed to make it explicit that expropriation without compensation is one of the means that can be used to address the skewed land ownership patterns dating back to the colonial and apartheid eras.

The committee ignored objections from opposition parties, business organisations and some academics, who have argued that the change would discourage investment without dealing with the real causes of the slow implementation of land redistribution, almost 25 years after SA’s first democratic elections.

Other parties in parliament including the DA, Freedom Front Plus and the IFP, have also indicated that they may launch a court bid. They also argue that the committee’s work was characterised by several procedural flaws. Their main concern is the manner in which written submissions were handled.

With Linda Ensor