Guest Column

Land debate is about shifting power

2018-03-11 06:06

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In her piece last week, “Land expropriation without compensation: What does it mean?”, Professor Ruth Hall from the Institute for Poverty, Land and Agrarian Studies raises four key questions we ought to be thinking about as we drive the process to amend the Constitution.

First, she thinks there is no need to do this because, she says, the Constitution provides for expropriation without compensation. This is a weird reading of section 25(2)(b), which provides that property may be expropriated in terms of a law of general application, but subject to “compensation, the amount of which, and time and manner of payment of which, have either been agreed to by those affected, or decided by a court”.

This section lists a number of factors that must be taken into account to determine what is “just and equitable” compensation, including the current use of the property, the history of acquisition, the market value, the extent of direct state investment and the purpose of the expropriation.

Hall relies on these provisions to make a hypothetical conclusion that expropriation without compensation is provided for in the Constitution, an entirely false reading of the section. If the drafters of the Constitution wanted expropriation without compensation, they would have explicitly included it. The section is clear that expropriation must be accompanied by compensation.

The quantum of “just and equitable” has not been tested and is grossly profane within the context of our colonial and apartheid history, which the amendment seeks to address.

Balancing interests between the nation’s commitment to land reform and the interests of land possessors, many of whom are in possession of the land thanks to our colonial and apartheid past, is an attempt to draw a moral equivalence between the blood-watered yearning for the return of dispossessed land and the interests of those responsible for the shedding of that blood.

In reality the provision protects the interests of landowners, while the demand for expropriation without compensation is a matter of restorative justice.

If the hypothetical possibility advocated by Hall were to be entertained, the practical implication of it would be nerve-racking. In the case of land restitution, for example, the state would have had to negotiate with all 80 000 land possessors affected by the land claims ending in December 1998 if there was a need for expropriation in all these.

The state would have had to agree on a compensation price with each of those possessors, failing which, the responsibility of determining “just and equitable” would be left to the courts to decide. We would have an excessively litigation-based land reform programme.

The second point Hall raises is her own ambivalence towards giving the state the responsibility of being custodians of the land, taking into account the ANC’s past experience of abuse of power, corruption and its injudicious dispensation of patronage for reprehensible purposes. This is a credible point and it should concern all right-thinking South Africans. If, as society seems to be fast learning, the ANC is presiding over a kleptocratic regime, is it okay to entrust it with the responsibility of being custodians of the land?

The invocation for land expropriation without compensation must not be understood in isolation from the necessary imperative of changing the very nature of power and how that power is yielded for the benefit of the common good.

Vesting the custodianship responsibility over the land to the state would be a leap towards changing the nature of power in society.

Hall does not seem to be opposed to the idea of state custodianship of the land, but is concerned, rightly so, by the corrosive history of the ANC’s relationship with power.

The Economic Freedom Fighters (EFF) is also well aware of this and it is for this reason that Cardinal Pillar 7 demands: “Open, accountable, corrupt-free government and society without fear of victimisation by state agencies.”

It is our responsibility to force accountability out of the ANC, kicking and screaming. Constitutional amendments should be such that whoever is in charge of state power must exercise that power in a manner that advances society.

Third, Hall is concerned, as are many others, that “property” in section 25 does not refer to only land. The EFF position of expropriation relates to land and the constitutional review committee must be trusted to make these distinctions when dealing with amendments.

Last, she is concerned about whose rights to the land will be expropriated. She asks if land rights for the poor will be treated the same as those of the rich. Hall ought to know there is a major difference between rights to land on one hand and land ownership on the other.

The EFF believes that land is common property. All land must be expropriated and given over for productive use to the people, with preference given to black people who have been excluded from having rights over land for generations.

The resolution by the National Assembly for the constitutional review committee to come up with amendments to the “property clause” is the most important development post-1994; it is pregnant with so many opportunities for significantly transforming our society for the better, for dealing with the demons of our past in a manner not done before.

True reconciliation and authentic South African nationhood depends on our honest confrontation with our past and all its demons.

Only then can we truly claim to be one nation.

- Gardee is secretary-general of the EFF

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