Legal battle looms over South Africa's land reform plans

Land reform (Photo: iStock)
Land reform (Photo: iStock)

A legal battle may be looming over plans by South Africa’s ruling party to change the Constitution to make it easier to expropriate land without paying for it, with widely divergent views over the process that needs to be followed.

Land expropriation without compensation could violate the founding provision in section 1 of the Constitution, which guarantees human dignity, rights and freedoms, outlaws racism and ensures the supremacy of the rule of law, according to Robert Vivian, a professor of finance and insurance at the University of the Witwatersrand’s school of economic and business sciences. It can only be amended with the backing of 75% of lawmakers in the National Assembly, he said.

“I can’t see an argument anyone could put up against this,” Vivian said at a function hosted by the Free Market Foundation in Johannesburg on Wednesday.

If that’s correct, it’s unlikely amendments will make it through the current parliament, where opposition parties that are against constitutional changes control more than a quarter of the 400 seats. Elections are scheduled for next year, and it’s unclear whether the ruling ANC and like-minded parties will then be able to secure the majority they need.

Pierre de Vos, a law professor at the University of Cape Town, argues that section 25 of the Constitution, which deals with land rights, can be changed by two-thirds of lawmakers without violating any other provisions on condition there isn’t arbitrary expropriation and correct procedures are followed.

Government data show more than two-thirds of farmland is owned by whites, who constitute 7.8% of the country’s 57.7 million people - a status quo rooted in colonial and white-minority rule. The ANC decided in December that the situation is untenable and tasked a parliamentary committee to review the Constitution to address it. The panel has yet to propose amendments.

The ANC controls 62% of the seats in the National Assembly, while the Economic Freedom Fighters, which wants all land nationalised, has 6%. The DA, which favors leaving the Constitution unchanged, has 23% of the seats. Other opposition parties are divided on the issue.

Agri SA, the nation’s biggest farming industry lobby group, said last month it will go to the country’s highest court to protect property rights.

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