There is no room for complacency.
A parliamentary ad hoc committee is pushing ahead with the drafting of a bill to amend Section 25 (the property clause) and allow expropriation without compensation (EWC). The committee has developed two possible options for the wording of this amendment bill, and is considering a third proposal for which the EFF is pushing strongly.
These points emerged from a meeting convened by the committee in Parliament last week. At this ‘constitutional dialogue on land ownership’, the committee – formally the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution – made it clear that the decision to amend Section 25 has already been taken and cannot be revisited. Hence, its sole task is to draw up an amendment bill that can be tabled in the National Assembly by the end of March 2020.
Under the committee’s Option 1, sub-sections 25(2) and (3) would be amended so as to limit the obligation to pay compensation on expropriation. This would be done by adding a proviso stating that ‘a court may determine that no compensation is payable in the event of expropriation of land for purposes of land reform’. However, ‘where compensation is payable’, its amount would have to be ‘just and equitable’, as Section 25 currently provides.
The committee’s Option 2 is more sweeping and would involve the insertion of a new sub-section (25(4A),saying: ‘Notwithstanding the requirement for compensation in section 25(2)(3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.’
The critical difference between the two is that Option 2 takes the decision on zero compensation away from the courts and transfers it to the ANC’s deployed cadres. Once the Expropriation Bill has been enacted, this will allow hundreds of municipalities, SOEs, government departments, and other ‘expropriating authorities’ to decide that no compensation should be paid for land expropriated for ‘land reform’ purposes. Since these decisions on zero compensation will have been authorised by the new sub-section 25(4A), the courts will find it difficult to intervene.
The EFF wants yet more sweeping changes. Sub-section 25(1), which currently bars the ‘arbitrary deprivation’ of property, should be replaced, it says, by a clause obliging the state to ‘redress the imbalances of the past through the enactment of laws that will…equitably redistribute resources’. Sub-section 25(2), which requires the payment of compensation on expropriation, should be replaced by a clause saying that ‘property may be expropriated without compensation’, provided this is done via ‘a law of general application’ and ‘in the public interest’. Sub-section 25(3), giving the courts the power to decide on ‘just and equitable’ compensation, should be replaced by a provision making ‘the state the custodian of all South Africa’s natural resources, inclusive of land’.
The committee is unlikely to include the EFF’s proposals in its constitutional amendment bill. Its mandate is to make ‘explicit’ the zero compensation options that are supposedly already ‘implicit’ in Section 25 – and the EFF’s changes go beyond this.
However, this is no reason for complacency. Once Section 25 has been amended by the addition of a new Section 25(4A), ordinary legislation could easily be adopted that would achieve the EFF (and ANC) objective of vesting all land in the custodianship of the state.
Assume Section 25 has been amended to include the committee’s Option 2 and to say (in a new sub-section 4A): Notwithstanding the requirement for compensation in section 25(2)(3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.’
Parliament could then (by a 51% majority) enact a statute vesting the custodianship of all land in the state – and saying that this expropriation without compensation is ‘a legitimate option for land reform in order to redress the results of past racial discrimination’.
The constitutional validity of this statute would be difficult to challenge, while its consequences would be devastating. With all land vested in the state as custodian, existing title deeds would be meaningless, people could no longer use home ownership to build up household wealth, and everyone (including businesses) would need land-use contracts with the state which would be open to termination whenever cadres regarded this as ‘in the public interest’.
Land would become a key patronage tool in the hands of the ruling party – and would be used by it to cement dependency on the state and keep itself in power. Investment, growth and employment would all diminish, and further ratings downgrades would be sure to follow.
Despite the enormous ramifications of the pending constitutional amendment, the committee proposes to give the public a mere three weeks or so to make written comments on its draft. In addition, the period for written submissions will start in December – when many people are on holiday and the country effectively shuts down.
This proposal makes a mockery of the constitutional requirement to ‘facilitate public involvement’ in the legislative process. It also disregards a number of Constitutional Court rulings on what proper public participation requires.
According to the court, citizens must be given ‘a reasonable opportunity to know about’ pending legislation and to ‘have an adequate say’. Enough time must thus be allowed for the consultation process, and ‘a truncated timeline’ may itself be ‘inherently unreasonable’.
The court has also stressed that legislative timetables cannot be allowed to trump constitutional rights. On the contrary, it says: ‘The timetable must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable.’
The High Level Panel of Parliament (chaired by former President Kgalema Motlanthe) reported in November 2017 that there was no need to amend the Constitution to shift land reform from failure to success. Failure resulted not from Section 25 but rather from a host of other factors – including minuscule budgets, bureaucratic inefficiency, elite capture, corruption, insufficient support, and a determination not to allow new black farmers the benefits of individual ownership.
These crucial challenges have yet to be overcome. The country is nevertheless being relentlessly pushed into an unnecessary and highly damaging constitutional amendment that is sure to ‘bring Zimbabwe to South Africa’ (as a DA local councillor once put it).
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