AfriForum's court bid 'embarrassing' – Adv Tembeka Ngcukaitobi

Adv Etienne Labuschagne tells court that 176 000 submissions deemed duplicates were not considered

AfriForum 'justifying violent dispossession' with 'embarrassing' court bid – Ngcukaitobi for Parliament

AfriForum came to court to "justify violent dispossession" in its bid to review the Joint Constitutional Review Committee's report recommending expropriation without compensation, Parliament's counsel, advocate Tembeka Ngcukaitobi, told the High Court in Cape Town on Thursday.

Judges Vincent Saldanha and Nape Dolamo will deliver their judgment on the first part of AfriForum's application on Friday morning at 10:00, after arguments were heard on Thursday.

AfriForum asks in an urgent application that MPs be interdicted from moving to adopt the committee's report on Tuesday when it will be debated in the National Assembly and put forward for adoption. The second part of its case is to have the report reviewed.

The Joint Constitutional Review Committee adopted the report on November 15, recommending that section 25 of the Constitution should be amended to allow expropriation without compensation.

The gist of AfriForum's case is that the public participation process is flawed because about 176 000 of the hundreds of thousands of written submissions that the committee received were deemed duplications and not considered in the report.

Advocate Etienne Labuschagne, SC, appearing for AfriForum, argued that this means that the opinions of the thousands of people who supported AfriForum and sent submissions via AfriForum's website were discounted.

Labuschagne also said that the appointment of a third-party service provider meant that the committee delegated its power of analysis, rendering it unconstitutional.

Saldanha said the service provider's work was clerical.

Submissions 'similarly worded'

Labuschagne said the fact that service provider summarised the submissions, meant that it analysed them. He argued that the legality of committee work is prescribed by Parliament's joint rules, which state that the committee must consider the submissions, and in this case, the Joint Constitutional Review Committee didn't consider the submissions deemed duplications.

He said the committee might not have appointed the service provider, but it did decide to delegate its responsibility.

"The delegation is by this committee, no doubt," he said.

Dolamo said in 2006 the Constitutional Court ruled Parliament could decide how public participation takes place as long as there was meaningful public participation.

"We submit there was not meaningful participation as the submissions of the members of our clients were dismissed simply because [they were] similarly worded," Labuschagne said.

He said discarding these submissions because they are duplications was irrational.

Saldanha questioned whether just pressing "send" on AfriForum's provided submission was meaningful participation.

"They pressed a button. That is the extent of their participation. Is that serious participation?" he said.

'It's not a competition'

Labuschagne countered: "One cannot just ride roughshod over that.

"They partook with the view to having meaningful participation."

Saldanha said public participation was not a numbers game, but about substantive issues.

Dolamo said: "But we're not dealing with a referendum here. If 50 people sent the same submission, it's one submission, isn't it?"

Saldanha pointed out that the duplications were mentioned in the report, and thus considered.

"How can you tell us your client's submissions weren't counted?"

He said the process wasn't a "competition".

"It seems that your client has a very different understanding of the word 'duplicate'," Saldanha said.

AfriForum's case 'embarrassing'

Labuschagne conceded that the content of the submissions would be the same.

"We are dealing here with a judgement call that was made by a service provider," he said.

"How can you elevate that to a judgement call? It was clerical," Saldanha said.

Ngcukaitobi, who described AfriForum's case as "embarrassing" at least three times, said the Joint Constitutional Review Committee's report stated that the majority of written submissions were opposed to amending section 25, thus AfriForum's views had been taken into account.

"MPs themselves tell us they looked at the submissions.

"These exclusions were recorded," he said.

"The fact is that the CRC (the committee) knew that the majority of written submissions objected to an amendment," he said.

Dolamo said: "The point is there was public participation."

Not the end of the road for AfriForum

Ngcukaitobi said it was clear that AfriForum's intention was to "bulk up the submissions to create the impression that there is opposition" to an amendment.

"They were trying to treat this as a referendum, some kind of petition," he said.

"It was never meant to be a referendum.

"The idea that there has been a failure of public participation is not supported by the facts, it's not supported by the law and, most importantly, it is not supported by the report."

He also said it was not the end of the road for AfriForum, as the committee that will draft the amendment if the report is adopted will also have to follow a public participation process.

"Not only is the case very embarrassing, it is legally flawed," he said. "What is most striking is their application is the complete absence of exceptional circumstances. What is exceptional about their participation is never explained."

Turning to the content of the lobby group's submission to the Joint Constitutional Review Committee, Ngcukaitobi lamented the "very objectionable attitude of AfriForum", which denies that land was violently taken from black people.

"They have come to court to justify violent dispossession. This is a form of colonial and apartheid denialism," he said.

"If you have no qualms submitting this to court in South Africa in 2018, you have to re-examine yourself."