A separate committee in parliament is set to soon begin redrafting section 25 of the constitution or the property clause after both houses of the legislature agreed to adopt the contentious report on land expropriation without compensation.

The expropriation without compensation debate has polarised the country and spooked investors, with the proposed amendment set to be challenged in court by various stakeholders and political parties.

This means the process to change the constitution could be stymied pending the conclusion of court processes which may end in up in the highest court in the land, the Constitutional Court.

It is therefore highly unlikely that any amendment will be finalised by the current parliament, whose five-year term ends in a few months’ time.

The National Council of Provinces on Wednesday gave the report the thumbs-up with eight provinces voting in favour of its adoption. The DA-led Western Cape objected.

On Tuesday, the National Assembly voted in favour of the report despite strong objections by the official opposition, the DA, which has vowed to take the legal route to challenge the “flawed processes” leading up to the adoption of the final document. 

MPs, particularly those from the ANC and EFF, want the constitution to be amended 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 days.

Indications are that the process of amending the constitution will only be finalised after the 2019 elections, leaving the possibility that the amendment might not happen at all if the parties backing the change fail to win enough votes to secure a two-thirds majority among them.

However, ANC chief whip Jackson Mthembu has suggested that the party would bring a motion on Thursday to chart the way forward which could fast-track the process. Parliament is scheduled to rise on Friday for constituency period and the festive season break until early February.  

The EFF insists that the process can and should be concluded before the general elections, which are likely to take place in May. This gives parliament at most four months to conclude the process.

According to the constitution, if the National Assembly is dissolved when its term expires, the president, by proclamation must call and set a date for an election, which must be held within 90 days of the date. However, the National Assembly remains competent to function from the time it is dissolved or when its term expires, until the day before the first day of polling for the next Assembly.

Parliament spokesperson Moloto Mothapo said that adoption of the committee’s report by both the National Assembly and the National Council of Provinces means that a bill may be introduced, according to the procedures in section 74 of the constitution and the rules of parliament.

Details of the bill would have to be published in the Government Gazette at least 30 days before it is introduced. This is to allow for public comment. The bill must also be submitted to the nine provincial legislatures.

“The National Assembly may consider and vote on the bill only after 30 days at least have passed since its introduction. For the National Assembly to pass a bill seeking to amend a section of the constitution’s Bill of Rights, at least two thirds of National Assembly members must support it,” said Mothapo.

“If this happens, the bill would go to the National Council of Provinces.  The National Council of Provinces chairperson must then refer it to a relevant council committee and to the provincial legislatures.

"According to the council’s rules, such a bill must be dealt with in a way which ensures provinces have enough time to consider it. The National Council of Provinces can only pass such a bill if at least six provinces support it.”