Picture: SUPPLIED
Picture: SUPPLIED

Investors who were rattled by government proposals to expropriate land without compensation could know by the end of March 2019 what the redrafted section 25 of the constitution, or the property clause, will look like.

This week both houses of parliament — the National Assembly and the National Council of Provinces (NCOP) — adopted the contentious report on expropriation without compensation, which calls for a constitutional amendment to make it explicit that expropriation without compensation can be used to address skewed land ownership patterns dating back to the colonial and apartheid eras.

On Thursday, during its final sitting of the year, the National Assembly adopted a draft resolution by ANC chief whip Jackson Mthembu calling for the establishment of an ad hoc committee, which will initiate and introduce legislation amending section 25 of the constitution.

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.

The matter could eventually be processed by the next parliament,  which means the amendment might not happen at all if the parties backing the change fail to secure a two-thirds majority among them.

The DA has vowed to  challenge in court the “flawed processes” leading up to the adoption of the final document on expropriation without compensation.

The high court in Cape Town is due to hear an application by lobby group AfriForum on a date yet to be set. The group wants a declaratory order that the adoption of the report by the joint constitutional review committee was unlawful and should be set aside. It wants the public participation process reviewed.

The Institute of Race Relations (IRR) also indicated in November that it is preparing to take legal steps to prevent the push by the ANC and the EFF to amend the constitution.

“The committee has a constitutional obligation to hear and heed what South Africans have said on the issue. The IRR is determined to ensure that it fulfils this obligation. The hundreds of thousands of submissions, which people took the trouble to send in, must be fully taken into account, not effectively relegated to the rubbish bin, as the committee currently seems intent on doing,” the IRR said at the time.

The DA and other smaller parties objected to the establishment of the ad hoc committee on Thursday, but were outvoted. Mthembu said the ANC wants the legislature to process and pass the amendment bill before the five-year term of the current parliament ends in May, just before the general elections.  This gives the ad hoc committee at least four months to conclude the process.

According to the ANC’s resolution, the committee will consist of 11 voting members of the National Assembly and 14 nonvoting members. The 11 voting members would be made up of six from the ANC, two from the DA, one from the EFF and two representing other parties. It will have to conduct public hearings and accept petitions, representations or submissions from interested persons or institutions.

The committee has to report to parliament by March 31 2019, said Mthembu. Parliament rose on Thursday for the constituency period and the festive season break until early February.

The EFF suggested that members of the ad hoc committee must return to parliament by  mid-January to start working on the bill. 

phakathib@businesslive.co.za