The government’s haste to push through a draft bill to amend the property clause in the Constitution and clear the way for compensation-free expropriation is facing mounting resistance.
The Institute of Race Relations (IRR) gave notice this week that it planned, through litigation due to commence in January or February next year, to challenge the ‘major procedural shortcomings’ in the process of drafting the bill and preparing it for a decision by Parliament.
The draft law is expected to be published for comment in the next few days. The period allowed for public comment falls over the holiday period.
The IRR said in a statement: ‘Contrary to all the assurances provided by the ANC – and the mandate given to the Ad Hoc Committee charged with formulating the amendment – the Draft Bill does far more than merely ‘make explicit that which is implicit’ in the existing wording of Section 25.’
The IRR also pointed out: ‘Contrary to Section 74, a two-stage method is being used to adopt this EWC amendment. The Constitutional Review Committee effectively decided that an EWC amendment was needed, while Parliament is now confined to deciding on the wording to be used. Yet Section 74 clearly requires a ‘one-stage’ process, in which Parliament itself must fully consider the need for an amendment to a guaranteed right, as well as what the wording of any new clauses should be.’
South Africa’s biggest farmers’ organisation, Agri SA, said it was ‘disappointed’ that its request to MPs to postpone publication of the controversial bill for comment until after the holiday season had been rejected.
Agri SA’s Annelize Crosby said in a statement: ‘Agri SA deems it problematic that the Committee has rejected a fair request to allow for proper public participation over such a controversial and potentially far-reaching step as amending an internationally recognised fundamental human right.
In the same statement, Willem de Chavonnes, chairman of Agri SA’s Centre of Excellence for Land, said: ‘Agri SA has maintained throughout that there is no need to amend the property clause. It will have a massive impact on the economy and on job creation that will eventually lead to food insecurity.’
He added: ‘The problem is not section 25 of the Constitution and this has been confirmed in various court cases and most recently by the Constitutional Court in the Mwelase judgement.’
In this case, he said, the court held: ‘It is not the Constitution, nor the courts, nor the laws of the country that are at fault. It is the institutional incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis.’
Crosby said Agri SA – which, with its affiliates, was ‘engaged in large scale transformation projects and has shown their commitment to address the skewed land ownership pattern in South Africa’ – was ‘considering all available legal options to ensure the protection of property rights for all South Africans’.
Annelie Lotriet, chairperson of the Democratic Alliance Parliamentary Caucus, said the party remained ‘firm in our view that Section 25 is not an impediment to meaningful land reform, but rather that the lack of political will has been the central problem’.
‘We further hold the view that inviting public participation in legislation of this magnitude over the festive period amounts to depriving the public of a proper opportunity to engage with the proposed legislation.’