ANC/EFF coalition plans for a settlement on state custodianship of land oversteps the mandate of the Section 25 Ad-Hoc Committee

Plans by the ANC and EFF to reach a bilateral agreement, outside the purview of Parliament, on expropriating land without compensation, reveals the extent to which they will go to violate our Constitution and go beyond the original mandate given to the Section 25 committee by Parliament.

Not only has the ANC gone out of its way to appease the EFF by including state custodianship of land as part of their new proposal to the Section 25 amendment, they are now going the extra mile to meet the demands of the EFF.

The announcement by the EFF that it will be meeting with the ANC’s ‘top six’ on Wednesday to negotiate a possible political settlement on their agreed plan on state custodianship of land is hardly surprising. It is the latest in a series of infractions by this ANC/EFF partnership to ignore the opinion that was given to the Section 25 committee by Parliamentary Legal Services on the original mandate of the committee.

State custodianship of land was not part of the mandate given to the Section 25 Ad-Hoc committee and neither was it included in the Bill that was presented and discussed during the public participation process. Parliament’s Legal Services have already cautioned the committee against making amendments to the draft Bill without obtaining a fresh mandate from Parliament.

The legal opinion provided by Parliament’s Legal Services stated that:

• We would advise the Committee to call for comments on any subsequent amendments that materially or substantively change the content of the Bill. This advice is accentuated by the nature and importance of this Bill, as well as the intensity of its (perceived) impact on the public and that Parliament has considered it necessary to do extensive public hearings. 
• We would also advise that any such material or substantive amendments and amendments that extent the scope of the Bill be forwarded to Provincial Legislatures for their views. 
• With regard to whether the Committee should approach the House to seek permission for amendments that constitute new ideas, we would recommend that the Committee errs on the side of caution, so as to ensure that it fully complies with all procedural requirements underlying this Bill.

State custodianship is undoubtedly a material and substantive change to the content of the original Bill and the ANC/EFF coalition has made no effort to comply with the opinion given by Parliament’s legal services. This means that the planned political settlement that the ANC/EFF coalition are hoping to reach is based on an illegality that emanates from the Committee’s failure to comply with the law.

Statement issued by Dr Annelie Lotriet MP - Chairperson of the DA Parliamentary Caucus, 21 June 2021