THE Restitution of Land Rights Amendment Bill is on President Jacob Zuma’s desk — along with a letter asking him not to sign it. The bill, which would give people whose land was taken from them between 1913 and the end of apartheid a further five years to claim it back, was adopted by the National Council of Provinces (NCOP) without its own public consultation on March 27, and sent to Zuma for the signature that will make it law.
Three community groups who believe the NCOP failed to honour its constitutional obligation to hear their views, have since written to Zuma asking him to send the Restitution Bill — and a similarly flawed amendment to the Mineral and Petroleum Resources Development Act — back to Parliament for proper consideration of the public opinion on them. “The bills were and remain of intense public interest and have far-reaching consequences for rural communities in respect of matters that are of substantial concern to them,” they said in a letter submitted on their behalf by the Legal Resources Centre.
“The [NCOP] committee did not consider holding public hearings on the Restitution Bill and it did nothing else to involve public involvement in the legislative process,” they added.
Zuma and his government have had their feet held to the fire by the courts several times since he became president five years ago and could again if he signs the Restitution Bill without a proper review of the process that got it to his desk. The Constitutional Court forced him to drop Menzi Simelane as national director of Public Prosecutions in 2011, calling the choice “irrational”, overturned his extension of Sandile Ngcobo’s term as chief justice and, with the threat of a mandatory order, caused him to establish an arms-deal inquiry demanded in an application by veteran activist Terry Crawford-Brown. Ngcobo was earlier the author of a seminal judgment underlining the importance of separate consultations by the National Assembly and the NCOP on legislation with provincial significance.
Now Zuma is being asked, in line with that judgment, to oblige the NCOP to heed concerns voiced at hearings outside of its own processes, which included:
• existing claims have not been ring-fenced to ensure they are neither torpedoed nor delayed by the expected flood of new claims. With existing funds and capacity already overstretched and no new budget in the pipeline, up to 30 000 existing claims could be stalled by overwhelming pressure on available funds and administrative capacity;
• traditional leaders are likely to use the renewed claim period to seize control of communal land in rural areas at the expense of communities who prefer to control their own land either individually or through communal property associations independent of chiefs and headmen. This fear was exacerbated by Zuma’s advice to chiefs to line up their lawyers in preparation for giant collective claims; and
• new and possibly conflicting claims could undermine the tenure security of vulnerable groups, particularly rural women.
Mining Communities United in Action, the Land Access Movement of South Africa and the Association for Rural Democracy echoed public concern that the bills were rushed through the NCOP ahead of the May 7 election as fodder for the ANC campaign to woo traditional leaders.
The three movements welcomed cautiously the intention to give people who missed the first opportunity to reverse their dispossession another chance, but insist that provincial delegates should have considered the concerns of many mainly rural people about the bill in its current form. They argue that by failing even to discuss whether to test public opinion on the Restitution Bill, the NCOP violated Section 72 of the Constitution, which says: “The National Council of Provinces must … facilitate public involvement in the legislative and other processes of the Council and its committees.”
Although the challenge would be about the legislative process rather than the content of the bill, and as such fairly technical, it echoes Ngcobo’s powerful 2006 judgment in favour of Doctors for Life International, in which he underlined the importance of the public voice in legislation. “Our Constitution was inspired by a particular vision of a non-racial and democratic society in which government is based on the will of the people. Indeed, one of the goals that we have fashioned for ourselves in the Preamble of the Constitution is the establishment of ‘a society based on democratic values, social justice and fundamental human rights’,” he wrote.
Recalling the concept of “people’s power” developed by communities during the struggle against apartheid, Ngcobo said: “The nature of our democracy must be understood in the context of our history.” An election every five years is not the full extent of democracy, he said.
“The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. “Finally, because of its open and public character, it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours, where great disparities of wealth and influence exist,” he said.
An initial draft of the Restitution Bill was tested in hearings hosted by the Department of Rural Development and Land Reform, the bill as introduced into Parliament was discussed in hearings arranged by the National Assembly and, earlier this year, the current draft was debated in hearings organised by provincial legislatures. The argument, therefore, is not so much a lack of public hearings overall, it is that the NCOP didn’t consider and debate the reports of these hearings, nor hold its own.
In three meetings over six weeks, the select committee of the NCOP shrugged off concerns raised in the voting mandates of the provinces that did not simply endorse the bill and declined to provide an opportunity for further input from communities and institutions. Henk Smith of the Legal Resources Centre in Cape Town said the NCOP could have decided to rely on inputs to the prior public engagements in place of its own hearings, but only if it then studied the records, and interrogated the draft against the record of the hearings. Ngcobo emphasised the separate obligations of the National Assembly and the NCOP in his 2006 ruling: “These democratic institutions represent different interests in the law-making process … If either of these democratic institutions fails to fulfil its constitutional obligation in relation to a bill, the result is that Parliament has failed to fulfil its obligation.”
Zuma’s dilemma will be that if he heeds the demand to send the bill back to Parliament, it will be stalled until after elections and processing it will have to go back several steps.
If he doesn’t, the government could face a challenge before the Constitutional Court on the grounds that the NCOP refused to listen to the people it is charged to represent.
*This article was first published the The Witness on 5 May 2014.