Parliament's chances of making expropriation work doubtful - legal experts

Tembeka Ngcukaitobi (File, Gallo Images)
Tembeka Ngcukaitobi (File, Gallo Images)

Cape Town - Lawyers debating the motion to investigate the expropriation of land without compensation said Parliament’s motion for the expropriation of land continues to put land reform in a state of limbo and does not stand much chance of putting to rest an injustice dating back to the 1800s.

Advocate Tembeka Ngcukaitobi was among legal experts speaking during a debate on Friday at the University of Cape Town on whether the latest motion will result in successful state expropriation of land. 

Ngcukaitobi said section 25 of the Constitution provides for three primary clauses intended to transform society, namely security of tenure, the restoration of lost land and the provision of land for those who lack it.

“Allowed for those who lost land to have it restored to them. Loss of property due to the 1913 land act must be returned, regardless if proof of loss entitled you to access to land. If you had weak tenure, you were entitled to means to strengthen it. It was a mandate for transformation,” Ngcukaitobi said.

Ngcukaitobi said it has become clear the spirit of section 25 has collapsed entirely. However, he said while South Africans were made to believe that the cause of the collapse is the clause itself, the ANC is making the mistake of trying to amend the Constitution because of its failure to comply with it.

“We have a constitutionally delinquent government from corruption to transforming society. This government has failed to implement the spirit of the Constitution. After 23 years, only 5.5% of land reform was achieved against a target of 35% in the first five years,” he said.

The lawyer said corruption is the first problem in the implementation of land reform. He said the R1bn paid to acquire the Mala Mala reserve from one family bankrupted an entire government department and that this money went to a select few.

“It has robbed us of a constitutional future. Corruption is an unconstitutional anti-revolutionary thing. Price of land is artificially inflated by owners and government buys it up for multiple times the inflated price and the eventual transaction is even higher,” he said.

Lawyer Luleka Flatela said the ANC-led government has the necessary tools to expropriate land but is essentially gutless in its efforts to do so to the benefit of dispossessed South Africans.

“Section 25 protects the rights of land owners from the 1800s till 1913. The 1913 legislation was really about consolidating crumbs but by that point much land was already taken. The land restoration was allowed much later aand subjected to proof of dispossession.

“If this expropriation is meant to answer the land question, it will not. There is already an expropriation act from the 1970s which allows for expropriation for public purposes but not one expropriation bid in for this purpose was launched. And government is scared to do it,” Flatela said.

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