Guest Column

Contestation should be over parameters not the instrument of expropriation without compensation

2018-12-11 06:01
Parliament of South Africa. Photo: Supplied

Parliament of South Africa. Photo: Supplied

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From a pragmatic sense, including a provision for expropriation without compensation in Section 25 should be "harmless" if the spirit of the section is kept as it is currently, writes Ongama Mtimka.

Opposition parties and pressure groups opposed to including expropriation of property without compensation in an envisaged future Constitution of the Republic of South Africa are failing to effectively read the emergent political mood in the country.

It is possible to craft a future Constitution that results in the insertion of a provision for expropriation without compensation without removing any of the provisions currently there in that entire section.

For instance, subsection (2) of Section 25 in Chapter 2 of the Constitution states that "[p]roperty may be expropriated only in terms of law of general application - (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court".

READ: Land - Does the will of the people trump the spirit of the Constitution?

A future subsection (2) may simply be the addition of "(c) or without compensation, if the following conditions prevail: (i) the property can be linked directly to acquisition through a historic injustice (ii) the expropriation can be executed without much harm against the current living descendants (ii) the property remains an inconvenience to a municipal council with no care by the owners over a defined period of time despite such owners having reasonable means to do so or (iv) in the case of an underutilised property held by another organ of the state which could unlock value for another organ with a greater economic value than its current use.

More provisions that make sense from a political, economic or general social point of view can be included.

From this pragmatic sense, including a provision for expropriation without compensation in Section 25 should be "harmless" if the spirit of the section is kept as it is currently.

This will help to address the deep cry especially among the youth for a sense of victory against the stalemate of the late 1980s. Changing the Constitution is an important aspect of fulfilling that psychological need.

Parties should commit to giving the state more power to be able to achieve its land redress objectives without taking away some of the guarantees given under Section 25 in its current form. The provisions precluding arbitrary deprivation of property and others in the section should not be tampered with.

Younger South Africans want to feel that the negotiated settlement can be altered to work for the majority of citizens. Since 2015 university students began to express outwardly their disapproval of the continuing political economic system in which the scourges of poverty, unemployment and inequality continue to afflict mainly the previously disadvantaged.  

Their lived experiences since 1994 belied the idea that they were born free and they singled out colonialism and inequitable access to quality higher education as the objects against which they expressed their anger. Based on the feeling that their identities were inextricably linked to their plight, they saw their disadvantages as the direct consequences of the history of racial segregation and political economic system that had grown cold to their plight.

Agitation for greater equality in land ownership was one of the focal points of the fallist movement. Younger South Africans feel that the transition short-changed the majority and it's time to challenge some of the compromises which they feel continue to affect people negatively.

As mentioned, the approval of a clause for the state to expropriate land without compensation would create a sense that the "property clause" was changed to reflect the aspirations of the majority rather than the compromises made during the transition.

Granted, the extreme proposals of state ownership of land as advanced by the Economic Freedom Fighters (EFF) and the fearmongering by AfriForum that all land belonging to whites would be targeted generate a sense of mistrust about the true intensions behind the process to change the Constitution.

There is a sense in which the rhetoric of Julius Malema appears to delegitimise the sense of citizenship of white people, if his reference to "settlers" is anything to go by. There is a need for the EFF to reassure South Africans that they remain committed to equitable citizenship and therefore land ownership by both black and white people in the country.

The country needs to engage in this debate in a way that shows commitment to the nation-building project which underscored "the miracle" of the country's peaceful transition to democracy. 

However, people should not be misled by crooked politicians into believing that resolving how the state acquires land is the same as ensuring its equitable distribution. More will need to be done in that regard but the expropriation clause within the broader Constitution should be a welcome starting point.

- Ongama Mtimka lectures South African politics, political theory, and security, peace, and reconstruction at Nelson Mandela University. He writes in his personal capacity.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

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