New Expropriation Bill will end a year of needless turmoil around land

Thousands of people live in Marikana informal settlement on private land. (Ashraf Hendricks, GroundUp, file)
Thousands of people live in Marikana informal settlement on private land. (Ashraf Hendricks, GroundUp, file)

The ANC allowed a whole year of destabilisation of the agricultural sector and undermining of Brand SA purely because it didn't want to be seen to be outdone by the EFF, writes Max du Preez.

If the new Expropriation Bill that is going to be published any day now is promulgated by Parliament next year, there will be no need to change the property clause in the Constitution.

It will then be clear to everybody that the emotional land debate that has caused so much division, uncertainty and a decline in investor confidence was about political contestation and cheap populism rather than the actual redistribution of land.

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The ANC didn't care much about land redistribution during the first 23 years after we became a democracy. Land reform and restitution proceeded at a snail's pace and came to a virtual standstill during the Zuma years.

The EFF then evoked the land issue and last year the ANC copied them because it has no own ideological direction and was infected by the populist virus themselves.

The ANC leadership knew very well that the Constitution wasn't the stumbling block hindering radical land redistribution, but it didn't have the guts to refuse to take part in a sham that mostly served to whip up anti-white sentiment.

They knew that, because in November last year a panel of eminent experts led by the ANC's own Kgalema Motlanthe told them so in the High-Level Panel Report commissioned by Parliament.

The ANC knew that there was broad consensus among constitutional experts that Section 25 of the Constitution provided for the expropriation of land and property, under specific conditions also with no or very little compensation.

The ANC never tested this by expropriating property and having the Constitutional Court pronounce on it.

The Constitution commands the state to formulate legislation that will facilitate citizens getting access to land.

The new Expropriation Bill accepted by Cabinet last week is, at last, that legislation.

READ: Contestation should be over parameters not the instrument of expropriation without compensation

The bill makes explicit what is implicit in the Constitution, as the deputy minister responsible for the bill, Jeremy Cronin, has said several times recently.

It stipulates that compensation could also be zero under these circumstances: land occupied by labour tenants, land purely held for speculative purposes, property abandoned by owners and land with value similar or lower than the state's subsidies or investment in it.

Only the stipulation about land held for purely speculative purposes is mildly controversial and will probably end up before the Constitutional Court, but the others should be acceptable by all political parties.

The bill isn't trying to defy Section 25 (1) of the Constitution that reads: "No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property."

If it did, it would probably have been deemed to be contrary to Section 1 (c) of the Constitution that states that the supremacy of the Constitution and the rule of law are part of the founding principles that may only be changed with a parliamentary majority of 75%.

But the ANC, under pressure from the Zuma faction, made expropriation without compensation official ANC policy at the Nasrec conference a year ago, and will now push an amendement to the Constitution through anyway.

As I understand it, it will simply mean that a sentence will be added to Section 25:3 (3) that reads that zero compensation could also be regarded as "just and equitable" under certain specific circumstances, circumstances then spelled out in legislation. Again, making explicit what is implicit.

It must therefore be clear that whatever happens next year, there can never be any arbitrary confiscation of property and that it is highly unlikely that any functioning commercial farms that have no state subsidies or investment will be expriopriated with no or very little compensation.

So the ANC allowed a whole year of destabilisation of the agricultural sector and undermining of Brand SA purely because it didn't want to be seen to be outdone by the EFF.

After all had been said and done, the burning question still remains how millions of homeless and landless people in cities and towns will be helped to own their own piece of land and how tens of thousands of aspirant farmers will be established on the land.

Expropriation with little or no compensation will do very little to solve this problem.

So we're back to the problems explained by the High-Level Panel Report: the state's incompetence, lack of capacity and corruption.

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