IRR Full Submission to Joint Constitutional Review Committee, 14 June 2018

If the period allowed is too short – as it was in the Land Access case, when roughly a month was allowed for the Restitution of Land Rights Amendment Bill of 2014 to proceed through the National Council of Provinces (NCOP) – then ‘it is simply impossible...to afford the public a meaningful opportunity to participate’.2 In the Doctors for Life case, where the timeline for the adoption of the releva. [...] Said the court: ‘The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.’3 In the Land Access case, the court cited this passage with approval and went on to say: ‘In drawing a timetable that includes allowing the public to participate in the legislative process, the NCOP cannot act perfunctorily. [...] In this period, there were forcible land acquisitions not only by whites from blacks, but also by the Xhosa (King Hintsa) from the Khoi and the San; by the Hurutshe from the Tswana; by the Zulu (King Shaka) from the Hlubi, the Ngwane and the Swazi; by the Ndebele (King Mzilikazi) from the Tswana; by the Kgatla from the Po; by the Tswana in the Kalahari area from the Khoi, the San, the Kgalagadi, a. [...] In addition, the ANC has already endorsed the custodianship idea via the Agri Land Bill of 2014, while its November 2017 land audit effectively does so too by proposing that all land be vested in the state ‘as the common property of the people of South Africa’.77 21 Behind the scenes, moreover, the ANC has long identified the custodianship concept as a useful way of achieving EWC. [...] In the words of Paul Hoffman SC, director of Accountability Now: ‘Section 74(1) of the Constitution provides that the foundational values of the new order cannot be amended unless the proposed amendment enjoys the support of 75% of the National Assembly’ as well as six of the nine provinces in the NCOP.98 An EWC amendment to the Constitution will undermine the foundational values of the Constituti.