Guest Column

Land expropriation without compensation: the ultimate test for the ANC is still in the making

2018-12-19 20:12
Parliament of South Africa. Photo: Supplied

Parliament of South Africa. Photo: Supplied

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With Parliament having risen last week, it is perhaps helpful to take stock of where we are regarding the process to amend the property clause in the Constitution. Not only because the road to here has been rocky and overshadowed by electioneering and other politics, but also because within civil society itself, and amongst interest groups, there seems to be a fair amount of disagreement. 

This at a time where some form of common ground seeking agreement would be helpful in order to build a strong civil society that can put the necessary pressure on government to fulfill their constitutional duty of effecting an orderly land reform, within the confines of the rule of law.

Social media commentators were especially skeptical about the recent more public meetings between organised agriculture and high-level government officials. While a healthy amount skepticism of authority is something that is encouraged, the teasing of “you will be left with eggs on your face” encouraged us to dissect what has happened since the Nasrec conference with regard to expropriation. 

Note that the focus is on the legal procedures, coupled with the public utterances of high-level government officials rather than pure politicking. We purposefully leave out the utterances and the endeavors of certain parties and groups, in order to ascertain whether, in this labyrinth of a badly managed process, some clarity can emerge. 

At the 54th Congress of the ANC in December 2017, the ANC resolved to start using land reform and rural development as part of the programme of radical socio-economic transformation. To this end, expropriation of land (and land is specifically mentioned, not the wider property of the Constitution) without compensation is envisioned as one of the key mechanisms available for the government to give effect to land reform and redistribution. 

Directly stating its intention to expropriate without compensation, the ANC cautions that in determining mechanisms of implementation, it must be ensured that this does not undermine future investment in the economy, or damage agricultural production and food security, nor cause harm to other sectors of the economy. At the conference it was made clear that a blanket expropriation of all property is not the path that the ANC wants to embark on. But it left the speculation as to how expropriation-without-compensation that will not harm the economy will work. 

The document states that in effecting land reform, concrete interventions should focus on government-owned land and should be governed by the ANC’s Ready to Govern policy document which prioritises the redistribution of vacant, unused and under-utilised state land, as well as land held for speculation and hopelessly indebted land. When accelerating the programme, this must be done in an orderly manner and action must be taken against people who occupy land unlawfully (so-called “land grabs”). 

In addition, the report states that land reform must have clear targets and timeframes and must be guided by sound legal and economic principles, and all of this must happen within the country’s overall job creation and investment objectives.

In the land reform process measures such as land tax, support for black farmers and preferential allocation of water rights and infrastructure provisions of black farmers should be in place. Training and support should be part and parcel for effective programmes. Land reform must enhance and maintain food security and empower local governments to advance land reform in their areas. Title deeds should be rolled out to black South Africans, and control and administration of areas under communal land tenure should be democratised.

From the conference, in summary, the ANC foresees expropriation of land without compensation as one of the mechanisms for government to give effect to land reform with various economic and legal caveats. 

But a roaring lion kills no game and implementing this will be the challenge. Land reform cannot be subservient to the economy alone – there needs to be a careful balance between addressing the injustices of the past and keeping the economy going. While there is little justice in a collapsed economy, not addressing the injustices of the past will enable greater populism, threatening the delicate balancing act. 

After the conference, it was the EFF that tabled a motion at the end of February calling for expropriation without compensation to enable the state to become “the custodian of all land” (nationalisation). The ANC amended this motion fairly drastically, to include the economic caveats of the conference. The EFF’s proposal for nationalisation was deleted. Regardless of the robust discussion that day in Parliament the motion is still in line with what was decided at the Nasrec conference

One year from the Nasrec conference, we are at a moment where an ad hoc parliamentary committee has been established to spearhead the process to make land expropriation without compensation possible. This, after a motion to adopt the Joint Constitutional Review Committee’s report recommending that section 25 of the Constitution be amended “to make explicit that which is implicit in the Constitution with regard to expropriation of land without compensation as a legitimate option for land reform”. 

The report also recommended that the 18th Constitutional Amendment Bill, amending the property clause, be tabled and passed before the end of the fifth Parliament which will rise before elections in May 2019. This places extremely narrow time frames for the decision of an issue which is South Africa’s biggest constitutional challenge, post democracy. It is perhaps this procedural aspect which may ultimately stymie the adoption of a new property clause on the basis that the short timeframes stifle public participation. 

The Cabinet member or a deputy minister (in this case – the minister of Justice and Correctional Services or the deputy minister) or a member of the ad hoc committee may introduce the Bill in the National Assembly. The particulars of the Bill as well as a memorandum to explain the text of the amendment have to be published in the Government Gazette at least 30 days before it is introduced.

In line with the understanding that Parliament plays a role in promoting human rights and democracy through public participation – the public will, once again, be free to make written submission regarding the amendment. Thereafter Parliament including the provincial legislatures, has a duty to facilitate oral submissions. 

When the Amendment Bill is introduced the written comments received from the public must also be submitted to the Speaker for tabling in the National Assembly and to the Chairperson of the National Council of Provinces for tabling in the council. If Parliament is sitting, then the Bill can only be put to the vote after 30 days of the Amendment Bill being introduced. Where the National Assembly is in recess, the Bill can only be put to the vote after 30 days of its tabling in the National Assembly.

At least two thirds of the 400 members of the National Assembly must vote in favour of the adoption of the Bill, with the concurrence of at least 6 out of the 9 provinces. Thereafter the President must sign the Bill for it to become law. The President would also be wise to, at this stage, send it to the Constitutional Court to test its constitutionality.

The amended property clause takes effect on a date chosen by the President. 

But this is not the end of the process. The amended property clause needs to be implemented through legislative means, namely an Expropriation Act. This means that a revised Expropriation Bill will be the key tool with which to give effect to expropriation of land without compensation. 

The current Expropriation Act 63 of 1975 is out of sync with the Constitution and as such, a revised Expropriation Bill will have to be passed in order to fill the legislative lacuna. The publication of a revised Expropriation Bill is imminent.  

Based on the well discussed Expropriation Bill of 2015, the updated Bill will clarify the instances where property may (not must) be expropriated without compensation. Clause 12(3) indicates that this will be land occupied by Labour Tenants, land held for purely speculative purposes, land owned by state-owned entities, abandoned land and where direct state investment in the land is more than market value. This correlates with the Ready to Govern ANC policy document. The exact definitions of these properties will be crucial.

A further consideration is that the Property Valuation Act 17 of 2014 which currently governs the manner in which compensation is calculated for land expropriated by the State, will have to be amended for alignment with the amended property clause. 

Through the labyrinth of slogans and threads, there seems to be some consistent pathway indicators at least on paper. But that is not where the story ends. The government remains obliged to abide by the constitutional imperative for a robust and orderly land reform that falls within the confines of the Rule of Law. 

That will be the ultimate test for the ANC.

- Elmien du Plessis is associate professor in Law at the North-West University.

- Dube is a doctoral candidate at the North West University whose research focuses on constitutional property law. This article is written in her personal capacity.

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