NHI, Expropriation, Electoral and Traditional Courts bills near completion, whispers of legal challenges abound

28 Aug 2022

Critical pieces of legislation on expropriation, elections, public health and traditional courts are headed for a vote in the House — but not without controversy and potential legal action.

Electoral Amendment Bill

Some parliamentary work remains to be done on the Electoral Amendment Bill that will accommodate independents to contest national and provincial elections. Putting the governing ANC’s decision for minimal changes into coherent legislative drafting has taken longer than expected.

Time pressures remain because Parliament had to ask the Constitutional Court for an extension — granted to 10 December 2022 — when it became clear it would not meet the initial two-year window from June 2020 to change the law. Even if the National Assembly adopts this legislation in September, it will leave the National Council of Provinces (NCOP) with just two months to process the draft law by the new December deadline.

Few, aside from members of the ANC, are enthusiastic about the limited technical tweaks to accommodate independent candidates, rather than the wholesale electoral reform anticipated across a broad spectrum of South Africa’s body politic.

Although the majority opinion of a ministerial advisory committee supported broader reform, it was the narrow minority option that was put into legislation after ANC workshops and discussions. Bluntly put, by taking the route of least electoral change, the ANC is keeping in place a system that has worked to keep it in power — and one that will be in place for the crucial 2024 elections, where polls have put the party as dropping below the 50% mark.

The politically choreographed push emerged strongly when, in countrywide public hearings, ANC supporters used similar phrasing and terms when telling MPs of their preference for the narrow changes.

Opposition parties and civil society have expressed their dissatisfaction. Civil society group My Vote Counts, along with 21 other organisations, wrote to Parliament’s home affairs officer on 11 August to express dissatisfaction “with both the content of the Bill as well as the manner in which it has been processed”:

“We are mindful that this is a process of national importance and therefore, broad and meaningful public participation and engagement is of critical importance. The provincial road shows conducted by the Portfolio Committee in March 2022 fell far short of the constitutional requirements,” the letter reads.

“This may inevitably lead us to a situation in which litigation becomes unavoidable to challenge a Bill that transgresses on key constitutional principles.”

Civil society organisations – including My Vote Counts, the Council for the Advancement of the South African Constitution (Casac), the Ahmed Kathrada Foundation and Defend our Democracy – are set to meet on 2 September to discuss the bill.

NHI Bill

From the outset, the National Health Insurance (NHI) Bill has proven to be sensitive, both politically and in practice, with many critics — not only from the opposition — pointing to malfeasance and incompetence in the public health system.

The bill has just gone through its clause-by-clause deliberations, where the ANC supported the draft legislation as it stands.

DA MP Michelle Clark wrote to the parliamentary health committee chairperson, ANC MP Kenneth Jacob, on 22 August to raise the constitutional flag after the Pretoria High Court declared the certificate of need sections in the current health regimen as invalid. These measures, which effectively require doctors to apply for permission to open a practice, are central to the NHI Bill.

“Instead of heeding the DA’s caution, the ANC has decided to continue their habit of ignoring the Constitution by deliberating the NHI Bill despite the North Gauteng High Court declaring it unconstitutional,” Clark said in a subsequent statement. “It is atrocious that the majority people in South Africa’s only hope for healthcare is poorly run public hospitals. And these are the heathcare facilities that are meant to be the foundation of the NHI.”

The ANC, which has the numbers in the House, is supported by the IFP at this stage, whereas the EFF, DA, Freedom Front Plus and others remain opposed.

The DA has muttered about legal challenges to the NHI Bill, as it has on the Expropriation Bill.

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Expropriation Bill

The third attempt since 2007 to replace apartheid legislation on land is just about good to go to the House. The Expropriation Bill has taken on added significance since efforts to amend Section 25 of the Constitution to expressly allow compensationless expropriation floundered in late 2021 amid politicking between the ANC, which lost the support of the EFF that was required to meet the two-thirds majority needed for a constitutional change.

The draft law was tabled in Parliament in late 2020, and has introduced the so-called nil compensation for categories such as abandoned land or land held for speculation and state land.

But it is enmeshed in controversy — and noisy claims of legal action — amid concerns that it may be used to expropriate any property, not just land. Official reassurance has been that whatever expropriation may be done, it must be in the public interest and public purpose. Put differently, the official explanation is that expropriating someone’s personal share portfolio that falls outside such powers had no public purpose or public interest.

Traditional Courts Bill

The Traditional Courts Bill is scheduled for the House on 8 September.

In the making since 2008, including a substantial review whose provisions were then overturned before the May 2019 elections, civil society and academia have slammed the bill as unconstitutional for effectively instituting a separate system of law for about 16-million rural residents.

After failing to gain sufficient support from provinces in 2012 in the NCOP, the substantial review under the auspices of the Justice Department included organisations representing women, rural communities, civil society as well as traditional leaders.

An agreement was reached on, among other matters, gender equality and representation rights and an opt-out clause for those living in rural areas who do not want traditional councils to settle their cases.

A revised bill was brought to Parliament in 2017, but the opt-out clause was removed in 2018 during the justice committee’ parliamentary hearings that curiously also allowed two members of the National House of Traditional Leaders speaking rights.

The bill was passed without the opt-out clause and sent to the NCOP, where it was passed with some technical changes on 2 December 2020 after a four-month public consultation process. This has been criticised as a “rushed process that ignored significant concerns raised by numerous stakeholders”, with only KwaZulu-Natal and the Western Cape not in support, according to the Land and Accountability Research Centre in a statement issued at the time:

“While the National Assembly is still to confirm the NCOP’s amendments to the Bill, this will largely be a sign-off process… Should it be passed, we call on President [Cyril] Ramaphosa not to sign the Traditional Courts Bill into law, and to refer it back to Parliament or the Constitutional Court for consideration.

“The rights of citizens living within traditional communities cannot hinge on the goodwill of those tasked with implementing the Traditional Courts Bill.”

The bill has been with the National Assembly since 2021, also paused to get a legal opinion on the lack of the opt-out clause after the DA also raised concerns over the draft legislation’s constitutionality.

But it decided to approve the draft law after being advised that at this stage in terms of Rule 311(2), it could not make any other amendments, according to the committee report published in the Announcements, Tablings and Committee Reports, Parliament’s record of work, of 8 June 2022.

That effectively means even if MPs of the justice committee wanted to, they could not reintroduce the opt-out clause. And this means the Traditional Courts legislation, if passed in September, could well be the subject of court challenges. DM

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South Africa

Electoral Amendment Bill

NHI Bill

Expropriation Bill

Traditional Courts Bill