Amending (section 25 of) the Constitution
“The land, our purpose is the land; that is what we must achieve. The land is our whole lives: we plough it for food; we build our houses from the soil; we live on it; and we are buried in it. When the whites took our land away from us, we lost the dignity of our lives: we could no longer feed our children; we were forced to become servants; we were treated like animals. Our people have many problems; we are beaten and killed by the farmers; the wages we earn are too little to buy even a bag of mielie-meal. We must unite together to help each other and face the Boers. But in everything we do, we must remember that there is only one aim and one solution and that is the land, the soil, our world.”
Tat’ uPetros Nkosi[1]
February 2018 should be dubbed South Africa’s ‘most “lit” contemporary history month’.
In the short 28 days, we saw the resignation of Mr Jacob Zuma, the appointment of the new President, Mr Cyril Ramaphosa, and a few days before his reassignment, former Minister Malusi Gigaba announced our first Value Added Tax hike since the dawn of democracy.[2]
But the most “lit” of these moments, came just one day before the month ended.
On Tuesday, 27 February 2018, the contentious issue of land was debated in Parliament, and 241 members of the National Assembly voted in favour of the Economic Freedom Fighters’ motion (as amended) for a constitutional amendment, to enable land expropriation without compensation.[3]
This startling occurrence was, in my view, the moment in history for the month of February. And while some have welcomed this development, others have not.
This is not surprising. The land question has always been a thorny one, and the debates around the ‘in principle’ stance in favour of land expropriation without compensation by the majority of the National Assembly will still elicit much emotive debate in the coming months.
Despite the many divergent views, the history of systematic dispossession along racial and other discriminatory lines, is well documented and accepted.
The scale of dispossession is apparent in the laws by which land had been allotted. The Native Land Act 27 of 1913 and the Native Trust and Land Act 18 of 1936 designated just 13,7 percent of the country as set aside for Africans.[4]
The devastating impact of the Native Land Act resound in the first chapter of Sol T Plaatje’s ‘Native Life in South Africa’ where he records:
“Awakening on Friday morning, June 20, 1913, the South African native found himself, not actually, a slave, but a pariah in the land of his birth.”[5]
And over the years, the systematic disenfranchisement continued,[6] further entrenching inequality, eroding a large portion of the pollution of its inherent dignity, and changing the country’s landscape, seemingly, forever.
With the move towards an egalitarian society, s 25[7] of the Constitution was introduced, with the hope that it would address some of this dispossession, while also confronting the tension between individual property rights, on the one hand, and social responsibilities, on the other.[8]
But it appears that s 25 (and the various Acts passed to give effect to it) has not been able to meet this sensitive balance. It is widely accepted that the state’s attempts at land reform[9] have, for various reasons, been unsuccessful.[10] In so far as agricultural land is concerned, the recently published Land Audit report reveals that:
‘White [people] own 26 663 144 ha or 72% of the total 37 031 283 ha farms and agricultural holdings by individual landowners; followed by Coloured [people] at 5 371 383 ha or 15%, Indian [people] at 2 031 790 ha or 5%, African [people] at 1 314 873 ha or 4%, other at 1 271 562 ha or 3%, and co-owners at 425 537 ha or 1%.’[11]
With these and other relevant indicators, although some doubt has been cast on their accuracy,[12] it seems that the move towards constitutional amendment was inevitable. The extent of the amendment, however, remains contentious, because s 25 in its current form had the onerous, constitutionally entrenched task of protecting minority groups.
While the viewpoints in favour of, or against amendment of s 25 provide an opportunity for South Africans to engage in meaningful debate over this highly sensitive matter, it is also an opportunity to take a closer look at what the Constitution has to say about amendment of its provisions.
What is required to amend s 25? Is there a process involved?[13]
Since its adoption, the Constitution has been amended seventeen times.[14] This latest amendment modified some of the provisions of chapter 8 of the Constitution,[15] which deals with the courts and the administration of justice.[16]
In contrast with the anticipated amendment to s 25, the modifications in the seventieth amendment were relatively uncontroversial, although there was some disagreement about some aspects, like the modification to s 167 which essentially broadened the scope of matters that may be heard by the Constitutional Court.[17]
There have also been some other revisions to the provisions dealing with the tenure for judges of the Constitutional Court, amendments to the appointment of the leadership of the Constitutional Court and the Supreme Court of Appeal, and floor crossing amendments, but by and large, the previous modifications to the constitution have largely been technical.[18]
To come back to the question, what does the Constitution say about amending its provisions.
Like almost all modern Constitutions, it provides for its own amendment, which is different from the amendment processes of money bills or bills affecting provinces.
Section 74 is the relevant provision dealing with Bills amending the Constitution.
Firstly, it is clear from the provisions of s 74 that the extent of the votes required to pass such a bill are different for various provisions of the Constitution.
For instance, where an amendment to s 1 of the Constitution is envisaged, which contains the founding provision, the support of 75% of the members of the National Assembly is required, and the National Council of Provinces (NCOP), with a supporting vote of at least six provinces.
But, if it is an amendment of the provisions of chapter 2 of the Constitution, ie the Bill of Rights, a supporting vote of at least two thirds of the National Assembly is required, plus the National Council of Provinces, with a supporting vote of at least six provinces.
Since s 25 falls under chapter 2, this will be the required vote for the anticipated amendment bill.
For completeness, any other provision of the Constitution may be amended subject to the same requirements as chapter 2, but NCOP involvement is dependent on one of three factors, namely, whether amendments relate to a matter that affects the Council, whether it alters provincial boundaries, powers, functions or institutions, or where it amends a provision that deals specifically with a provincial matter.
A second noteworthy aspect of the provision is that before the vote, there are still requirements that must be met with regards to the introduction of the intended bill.
Thus, the section states that at least 30 days before the bill intending an amendment to chapter 2, (in this case, s 25) may be introduced, it will be necessary for the person or committee intending to introduce the bill, to firstly, as is the norm, publish it in the national Government Gazette, and have the details of the proposed amendment for public comment. The particulars must also be submitted to the provincial legislatures for their views.[19]
The public’s written comments and the views of the provincial legislature must be submitted to the Speaker of the National Assembly, and also the Chairperson of the NCOP.
To ensure that the process is not a rushed one, and perhaps to make sure that appropriate public participation happens, s 73(7) prohibits the vote on a bill amending the Constitution within 30 days of its introduction or tabling.
The third aspect then is the acceptance. Once passed by both houses, the bill will then proceed to the President for his assent.
In sum, then, although it is probably still far off in terms of drafting, the amendment bill to s 25 would still need to go through several delicate steps to become law. Not only would such a bill require a high threshold of vote in both houses, it would also require extensive consultations with the public, and a consideration of the many divergent viewpoints.
But, our constitution does allow for such an amendment, and sets out in some detail, what the process would entail. The ability to amend a country’s constitution is essential. As the current President said several years back:
‘the Constitution did not come down from Table Mountain on stone tablets; it was written by men and women, and we are some of them. We have changed and amended the Constitution 17 times already, and we will continue to amend it because it is a living document – never fear that.’[20]
Equally important, however, is the need for the correct balance between the rights of majority versus a minority group, because that is what the Constitution requires.
It will be interesting to see how this amendment will be affected in the future, and whether the final word on its import will be that of ‘The People’, Parliament, or the Court (raising the question - Can a constitutional amendment be unconstitutional).[21]
[1] This is the introduction to Madlanga J’s judgment in Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017). According to the footnote, these words were said by uTat’u Petros Nkosi, at a community meeting in the then Eastern Transvaal. The note cites Rugege “Land Reform in South Africa: An Overview” (2004) 32 International Journal Legal Information 283 at 286.
[2] See https://www.dailymaverick.co.za/article/2018-02-21-budget-2018-vat-is-increased-a-first-for-new-sa/#.Wp9D9ujFLIU for more on this.
[3] Marianne Merten ‘Parliament: Historic land expropriation agreement reached amid South Africa’s changing politics’ Daily Maverick 28 February 2018, accessible at https://www.dailymaverick.co.za/article/2018-02-28-parliament-historic-land-expropriation-agreement-reached-amid-south-africas-changing-politics/#.Wp88qejFLIU.
[4] Helga Lucinda Links ‘An output based evaluation of delivery of land reform in South Africa over the period 1994 – 2010’ Thesis presented in partial fulfilment of the requirements for the degree Master of Arts in Public and Development Management at the University of Stellenbosch accessible at https://scholar.sun.ac.za/bitstream/handle/10019.1/.../links_evaluation_2011.pdf?
[5] Published in 1916, it was first and foremost a response to the Natives’ Land Act of 1913. In a foreword to the book, author Bessie Head wrote: “It is possible that no other black legislation has so deeply affected the lives of black people in South Africa as the Natives’ Land Act of 1913. It created overnight a floating, landless proletariat whose labour could be used and manipulated at will, and ensured that the land had finally and securely passed into the hands of the ruling white race.”
[6] For more, see M K Roberts ‘Black land tenure: Disabilities and some rights’ in A J Rycroft et al (eds) Race and the law in South Africa (1987). See also Jacob Dlamini ‘The land and its languages: Edward Tsewu and the pre-history of the 1913 Land Act’ in Ben Cousins & Cherryl Walker Land divided, land restored: Land reform in South Africa for the 21st Century (2015).
[7] Section 25 reads as follows:
‘(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application -
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including -
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section -
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).’
(9) Parliament must enact the legislation referred to in subsection (6).
[8] Geoff Budlender, UK Naidoo ‘ConCourt regards property as a social construct’ Politicsweb 13 August 2015 accessed at https://www.politicsweb.co.za/opinion/concourt-regards-property-as-a-social-construct--g on 8 March 2018.
[9] The Government of South Africa has land policies in place. The centre of land policy is the land reform programme, which has three main parts to it, namely; Land Restitution, Land Redistribution and Land Tenure Reform. See: RSA, White paper on South African Land Policy, 1997.
[10] Ruth Hall Researcher (2010) A Political economy of land reform in South Africa, Review of African Political Economy, 31:100, 213-227, DOI: 10.1080/0305624042000262257
[11] Rural Development and Land Reform Land Audit Report November 2017 Version 2 Phase II: Private Land Ownership by Race, Gender and Nationality. Accessible at https://us-cdn.creamermedia.co.za/assets/articles/attachments/73229_land_audit_report13feb2018.pdf accessed on 9 March 2018.
[12] Ben Cousins ‘Land debate in South Africa is clouded by misrepresentation and lack of data’ The Conversation 8 March 2018 accessible at https://theconversation.com/land-debate-in-south-africa-is-clouded-by-misrepresentation-and-lack-of-data-93078?utm_medium=email&utm_campaign=Latest%20from%20The%20Conversation%20for%20March%208%202018%20-%2096448301&utm_content=Latest%20from%20The%20Conversation%20for%20March%208%202018%20-%2096448301+CID_f51c6816f5f737d9440dd0199898ad20&utm_source=campaign_monitor_africa&utm_term=explains
[13] So far, the Constitutional Review Committee has been given a deadline of 30 August 2018 to ‘review section 25 of the Constitution and other clauses where necessary to make it possible for the state to expropriate land in the public interest without compensation.’ See https://www.parliament.gov.za/press-releases/national-assembly-gives-constitution-review-committee-mandate-review-section-25-constitution accessed on 9 March 2018.
[14] Constitution Seventeenth Amendment Act of 2013, with effect from 23 August 2013 – Proc. R35 / GG 36774 / 20130822.
[15] See Sipho Hlongwane ‘No 17: A Constitutional amendment (almost) everyone agrees on’ Daily Maverick 22 November 2012 accessible at https://www.dailymaverick.co.za/article/2012-11-22-no-17-a-constitutional-amendment-almost-everyone-agrees-on/#.WqH_F-jFLIU.
[16] It came into force simultaneously with the Superior Courts Act 10 of 2013.
[17] In terms of s 167(3) The Constitutional Court may now decide,
(b) ….
(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and
(c) makes the final decision whether a matter is within its jurisdiction.’
[18] Pierre De Vos ‘Changing the Constitution: much ado about nothing’ Daily Maverick 12 January 2014 accessible at https://www.dailymaverick.co.za/opinionista/2014-01-12-changing-the-constitution-much-ado-about-nothing/#.WqIZVOjFLIV.
[19] Section 73(5) of the Constitution.
[20] See Sipho Hlongwane ‘No 17: A Constitutional amendment (almost) everyone agrees on’ Daily Maverick 22 November 2012 accessible at https://www.dailymaverick.co.za/article/2012-11-22-no-17-a-constitutional-amendment-almost-everyone-agrees-on/#.WqH_F-jFLIU.
[21] In June 2008, the Turkish Constitutional Court annulled Parliament's amendments to the Constitution regarding the right to education and the principle of equality. See: Yaniv Roznai, Unconstitutional Constitutional Amendments - The Migration and Success of a Constitutional Idea, 61 Am. J. Comp. L. 657 (2013).