Land expropriation: To amend or not to amend the Constitution?

Land reform
Land reform

Amid continuing concerns about the effect that expropriation without compensation may have on the economy, it seems clear that government has already decided to amend the Constitution – three weeks before Parliament’s process of public hearings on the amendment have been finalised.

City Press’ sister publication Rapport can reveal that the majority of parties who will this week make oral submissions to the constitutional review committee – among them experts on constitutional law, academics, commercial farmers and human rights activists – are opposed to the amendment of the Constitution.

About 60% of the nearly 500 000 written submissions received by Parliament appear to oppose an amendment of the Constitution, according to a preliminary analysis of the submission by Isilumko Staffing, a copy of which Rapport has seen.

However, a majority of the estimated 3 000 South Africans who made submissions in the more than 30 public hearings held by the committee thus far have supported the amendment of the Constitution.

A source in the Cabinet, who is involved with the process, said government wants to change section 25(8) of the Constitution, which provides that no provision of section 25 may impede the state from taking legislative and other measures to achieve land, water and related reform so that the “just and equitable” requirement is no longer a stumbling block.

“By merely adding that nothing in the property clause, including the requirement for just and equitable compensation, may prevent the state from taking such steps, will probably be sufficient. It is subject to the parliamentary process, but it’s clear that work of the constitutional review committee is headed in this direction,” said the source.

Another possibility that is being considered is an amendment to section 25(3), so that the amount of compensation can sometimes be zero.

Professor Ruth Hall of the Institute for Poverty, Land and Agrarian Studies said the whole process could still be complicated by the fact that the ANC’s proposal for an amendment may not be radical enough for the Economic Freedom Fighters (EFF).

Rapport was this week able to obtain a number of other submissions that will also be presented to Parliament, the majority of which also appear to be opposed to an amendment of the Constitution.


. Anton van Dalsen, legal councillor for the Helen Suzman Foundation, said it was opposed to expropriation.

“The high-level panel headed by former president Kgalema Motlanthe makes it clear that the Constitution is not to blame for the failure of land reform,” he said.

. Tanya Cohen, chief executive of Business Unity South Africa (Busa), said Busa was also opposed to an amendment. “If there is an amendment we hope it will bring clarity and certainty in respect of property rights.”

. AgriSA chief executive Omri van Zyl said diplomats from South Africa’s leading trading partners this week told AgriSA that they were extremely uncomfortable about expropriation without compensation. He said AgriSA was also opposed to any changes to the Constitution.

. Constance Mogale, on behalf of the Alliance for Rural Democracy, will tell Parliament that the alliance supports expropriation without compensation when it is in the public interest, but not an amendment to the Constitution.

. The University of Cape Town’s Land and Accountability Resource Centre believes that section 25 of the Constitution already allows for expropriation without compensation and asks what will happen to expropriated land.

. Zenande Booi asks that existing legislation be reviewed.

. Nedbank, which this week came under fire for an email in which it asked land owners to keep paying their leases even after said land is expropriated, said it is opposed to an amendment to the Constitution, but it does not want to pre-empt the process. Nedbank is the only bank that will make a submission.


. Benedict Sigogo, president of the Black Lawyers’ Association, said they believe that section 25 should be amended to facilitate expropriation.

. The Southern African Catholic Bishops’ Conference said if a constitutional amendment can contribute to real progress in fulfilling the needs of our people and can circumvent any further delays then it may be the best option. Still, it argues that expropriation without compensation may not be wise.

. Black First Land First will say there is a national consensus on the necessity of expropriating land and that Parliament is wasting its time with public participation.

. Cosatu supports expropriation without compensation, but will argue that no politician should be a beneficiary of expropriated land.

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