Image via Picyrl
Image via Picyrl
This article was first published on 16 September 2018, it has since been amended to reflect the outcomes of the National Assembly vote on a parliamentary report which endorsed amendments to the Constitution in favour of land expropriation without compensation on 4 December 2018.
Following a protracted public hearing’s process, the Joint Constitutional Review Committee (CRC), under instruction from Parliament, tabled its report on land.
The report, which hasn’t been free of controversy, suggested that amendments be made to section 25 of the Constitution to allow for the expropriation of land without compensation.
The public hearings process formed the foundation for the report’s findings. In total, the report received 449 552 authentic written concerns along with thousands of oral submissions. Some civil rights groups and opposition parties have bemoaned a ‘flawed’ public participation process, citing the CRC’s alleged incompetence which led to a large portion of the submissions being ignored.
Despite litigative efforts from AfriForum, and the threat of a legal fightback tabled by the Democratic Alliance (DA), the debate and subsequent vote on the CRC report, involving the National Assembly and the National Council of Provinces (NCOP), moved ahead.
On 4 December 2018, the National Assembly of South Africa was tasked with deciding whether section 25 of the Constitution should be amended or not.
In order for the report to be accepted, it needed to garner at least two-thirds of the National Assembly vote. The CRC report on land expropriation was processed and passed, with 209 National Assembly members voting in favour of Constitutional amendments and 91 members voting against.
Yet, just how many South Africans understand the Bill of Rights is arguable. Worryingly, a lack of comprehension relating to the fundamental democratic rights of citizens, as prescribed by the Constitution, can unravel an already loosely bound social fabric.
While constitutional amendments are nothing new, it seems the issue of land expropriation is the most daunting of revisions tabled since the Bill of Right’s inception in 1996.
Why is this? Well, for one, the issue of land is, and always has been, linked to power – politically, socially and culturally. Within a South African context, the issue is elevated, with emotions attached to it, heightened, due to the country’s oppressive past.
Indigenous Africans were dispossessed of land and human rights during white minority rule under apartheid and during colonial times. The European land grab, which dominated the African continent by the 20th century, is well documented and has resulted in gaping socioeconomic wounds that still struggle to heal, especially in Southern Africa.
The ruling African National Congress (ANC) has prioritised land reform as a means of socioeconomic redress. The populist rhetoric points to land as the Master Key which will ultimately unshackle the majority of South Africans from the oppressive chains of poverty.
The practical mechanisms implemented to achieve this redress are still unclear. In fact, the ANC believes it may be possible to expropriate land without compensation under the current Constitutional laws – a method the government is already testing. Which begs the question, why the need for a constitutional amendment, the pre-emptive provision, and an extensive public hearings process?
Let’s take a closer look at the Constitution of South Africa to see if the ANC has its wires crossed.
Both the ANC and the Economic Freedom Fighters (EFF), have taken aim at this specific clause. The Expropriation Bill, and its derivatives serve to amend this section of the Constitution, which deals exclusively with property rights.
That’s the very first sentence of section 25. Taken at face value, this cripples the very foundation of land expropriation without compensation.
However, there is an exception. Property rights are subject to judicial clauses, meaning that only a court of law can decide whether to revoke those rights.
This makes sense, and applies across the board – it’s there to protect citizens, but also to ensure the rule of law. Think home-loans, evictions and illegal occupations – which lead to the next point.
This is where the Constitution clarifies its stance on property rights, relevant to the first clause regarding dispossession.
Property may be expropriated only in terms of law of general application:
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
Interestingly, this notes the ‘willing buyer, willing seller’ methodology, which the ANC and EFF have both blasted as impractical. The populist rhetoric goes: why pay for stolen land?
The government has been criticised for lowballing landowners in willing negotiations. The ANC has caught even more flack for failing to distribute farms already expropriated with compensation.
Again, following on from the ‘willing buyer, willing seller’ policy, the Constitution now points to the finer details of expropriation. It’s supposed that this specific clause is being closely studied by the ANC as they embark on a trial run of reform without compensation.
The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including:
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation
This subtext not only provides an outline for fair compensation but also brings adds a number of variables into the discussion of expropriation, namely, historical uses and acquisition, along with the purpose of state involvement.
Arguably the most contentious clause held within the Constitution in regards to property rights. The Bill of Rights addresses the issue of land reform, directly, and goes further to add that property is not limited to land.
For the purposes of this section:
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
It’s undoubtedly on this basis that the ANC believes the Constitution does allow for the expropriation of land without compensation.
In fact, ANC executives, including President Cyril Ramaphosa, have directly cited public interest and access to resources as grounds for ‘land affirmative action’.
The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
This puts onus on government to enact sustainable land reform.
This clause deals directly with redress – aimed at righting the wrongs of oppressive apartheid land laws.
A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
Thursday, 19 June 1913. The Natives Land Act (No. 27 of 1913) was passed to allocate only about 7% of arable land to Africans. This act is essentially regarded as the fundamental precursor to apartheid – which literally means ‘separateness’
This law dispossessed and displaced the majority of South Africans. It’s addressed directly in the Constitution, which has formed the basis for post-apartheid land claims.
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
Ultimately the Constitution’s trump card, and a fact which has no doubt been scrutinised by the ruling party; this clause prioritises government’s duty to enact land reform. In fact, it ranks redress, through appropriate legislative measures, above provisions allowed for in the Bill of Rights.
No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination.