Land expropriation: Walking a tightrope for one of the most unequal societies on earth

Cape Town - The fact that Parliament’s review of constitutional measures for land expropriation is in its infancy, has not stopped legal experts and local investors from weighing in on the impact that this might have on SA’s economy.

Since his election as ANC president and recently president of SA, Cyril Ramaphosa has had to neutralise the effect of land reform rhetoric and demands by his political opponents in the party. They used land reform as an election rally cry in the run up to the ANC's December national conference. 

However, Ramaphosa must also address imbalances where it relates to the ownership of the means to the economy in SA, one of the most unequal societies on earth. The ANC and Economic Freedom Fighters united in Parliament in a show of force when it voted together to put potential changes to section 25 of the Constitution for the purpose of land reform onto the table.

This also comes amid reports that European Parliament member Janice Atkinson has written to British Foreign Secretary Boris Johnson to mediate with SA regarding the National Assembly’s adopted motion regarding land expropriation.

Minister of International Relations Lindiwe Sisulu on Sunday encouraged members of the international community to continue supporting the government's efforts to reverse the legacy of apartheid.

In the statement she added that "there is no need to panic or be alarmist".

Sisulu reiterated Ramaphosa's assurance that the views and concerns of all stakeholders will be considered during the Parliamentary processes and that Parliament will take a decision for the benefit of all South Africans.

"There is a parliamentary process underway and all stakeholders, domestic and international, must respect that process and also take advantage of that process to make their input. The President remains committed to engage all stakeholders during this process," said Sisulu.

The Black Wealth Foundation chairperson Lulamile Ntonzima welcomed the adopted motion. He said government’s efforts to redress economic imbalances in land ownership would be to the ultimate benefit of the whole nation.

“Continued disenfranchisement of the black majority in all economic aspects would also contribute significantly to political risks in South Africa and thus addressing it should be urgent and preoccupying all sectors of decision making,” Ntonzima said in a statement.

Lulamile slammed what it called AfriForum’s efforts to “de-campaign” SA in the international investment community due to the land question’s gains in traction. They indicated that they would write to the Presidency, National Treasury and the Department of International Relations and Cooperation to “assist in conceptualising an essential mobilisation message” around land reform.

Werkmans Attorneys land claims specialist and director Bulelwa Mabasa said this task would be a balancing act because while section 25 protects against the deprivation of property arbitrarily, it also, in section 25(8), says that nothing in the clause may impede the realisation of land reform.

“It may be argued that land reform and the obligation placed on the State to ensure access to land to historically disadvantaged communities must be read together with the right to human dignity and the right to practise one's culture and religion. On the other hand, the right not to be deprived of property, may also be read together with the right to housing, however, this debate is centred squarely on section 25,” said Mabasa.

Mabasa said courts currently have the final say in terms of what constitutes just and equitable compensation where land expropriation does occur. He said the current Expropriation Act requires that the State gives notice to the landowner which the land owner may or may not object to.

“The landowner may also approach the Courts to challenge whether or not the decision to expropriate is just and fair or in the public interest. The Expropriation Act carried through by the Department of Public Works in the government entity that implements expropriation, even though the Department of Rural Development and Land Reform may expropriate for purposes of restitution,” he said.

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