STEPHANIE COOKSON

In 2019, the South African Parliament created a committee focused on the amendment of Section 25 of the Constitution,  this committee put forward a draft Amendment Bill that deals with expropriation without compensation. Despite being a heavily debated issue for some time, many South Africans hold apprehensions towards amending the Constitution. Land inequality in South Africa stems historically from the 1913 Land Act that dispossessed mostly Black South Africans, who made up approximately 80% of the population, of their land and designated only 13% of the nation’s land for these citizens. The effects of land injustice and ‘spatial apartheid’ are still felt today, and over 26 years on from the end of apartheid, the current attempts at land reform are considered a failure. The motive behind land reform,  since 1994, has been to address land inequality, and is still the motive today.

One of the reasons for apprehension about changing the constitution, is that many feel it creates the potential for anybody’s land to be taken away from them, and because of this, changing the Constitution is a slippery slope to compromising private property rights altogether. Interestingly, this is a frequent misconception as the Constitution already allows for land expropriation. “It has always been possible to expropriate land for land reform purposes. Section 25(4)(a) of the Constitution makes this plain,” said Dr Gustav Muller, a senior lecturer from the Department of Private Law at UP. The Constitution is supreme, and thus influences other property law.The most fundamental part of the legal process of land expropriation is deciding if a piece of land can be expropriated at all. This means that the government cannot simply decide to take and give land as it wishes. “People tend to forget that before we even get to the expropriation inquiry, we must first get past the fact that an expropriation is an administrative action which must be lawful, reasonable, and procedurally fair,” explained Dr Muller. A key part of this process is that for land to be expropriated, it must be justified in terms of the interest of the public, which is a legal requirement.

 

many feel it creates the potential for anybody’s land to be taken away from them

 

While the fear towards the idea of complete state control over people’s land is understandable, revisiting the mechanisms of land reform is needed in order to address land inequality. Dr Marc Wegerif, a Sociologist and post-doctoral fellow at the Human Economy Programme, briefly outlined the successes and failures of post-apartheid land reform in a seminar in early March. This process promised to reform land ownership through restitution, tenure reform, and redistribution, claiming to reform ownership of 30% of agricultural land by 1999. Of the 86 million hectares of commercial and agricultural land in South Africa, only 9.6% of this has undergone such land reform. This is important for concerned South Africans to understand, because it means that not only is land redistribution not a new occurrence, but that it is also needed considering the failure of past attempts to address deep inequalities.

If the Constitution already allows for land to be expropriated, one might ask what the point is of the amendment in the first place. This is the issue that has inspired widespread debate and disagreement. While it allows for expropriation, “as currently interpreted,” it does not allow for this without compensation, Dr Wegerif explained in his seminar. The current draft amendment Bill, called the Constitution Eighteenth Amendment Bill, is a proposed addition to the Constitution’s Section 25 on property expropriation. It makes explicit the possibility for expropriation without compensation, explained Dr Wegerif. Regardless of whether some agree with redistribution in general or with the expropriation of land without any compensation at all, the more pertinent problem is with how exactly the government decides when to award compensation, and when to award ‘nil compensation’.

 

This process promised to reform land ownership through restitution, tenure reform, and redistribution

 

After the proposed draft of the Bill was introduced, public comments were submitted and will be considered by the committee. This committee will either draft a new Amendment Bill in light of these comments or submit the Bill to Parliament as is. Dr Muller believes that considering these comments is the next logical step and does not think “that the current version of the Bill will proceed further without some changes”. After this, the Bill will need a two-thirds majority vote in Parliament. Once passed, a new expropriation Act will need to be drafted, and this legislation will need to specify the circumstances under which land can be expropriated without any compensation, according to Dr Muller.

It is these circumstances that have inspired debate, since they are of great importance to the future of land reform. This is an area in which the political parties play a role. The African National Congress (ANC), and the Economic Freedom Fighters (EFF) have been the main proponents of reforming the country’s land reform process to address land inequality. However, because a two-third majority vote in favour of the Bill is needed for the Bill to pass through Parliament, the ANC and EFF need to be  in agreement, “this is more than a creative tension and poses a serious risk for the progress of the Bill through Parliament” said Dr Muller. The ANC holds under two thirds of parliament, and should the two parties disagree, it is unlikely that the Bill would pass. In Dr Muller’s opinion, the ANC views rewarding nil compensation as a last resort, while the EFF “is in favour of expropriation without compensation as a default position irrespective of the circumstance,” he explained.

 

this is more than a creative tension and poses a serious risk for the progress of the Bill through Parliament

 

Dr Wegerif also points out the problem with the ANC’s proposal that “the state, rather than a court, [would be] able to determine if any compensation can be paid”. Part of the Amendment Bill will weaken land rights, but this weakening can be good, according to Dr Wegerif, as long as it is well structured and limited to some extent. The potential danger of having the state in a position to decide what land to expropriate as well as what compensation will be awarded, if any, is that it makes people “very vulnerable to arbitrary state action. If at least an independent court will decide if you should get compensation or not, and if so, how much, you have more protection,” explained Dr Wegerif.

For this reason, checks and balances are needed, such as court involvement on the decisions regarding compensation, as well as the importance for the criteria on which land can be expropriated and the purpose of doing so. “The draft, especially with the ANC proposal, doesn’t do these things adequately,” said Dr Wegerif. He also noted the possibility for personal gain abuses.

“The amendment of Section 25 for [clarification] purposes is a window dressing and a waste of time,” said Dr Muller. The “real work” will be needed in the Expropriation Act that defines the circumstances of expropriation with nil compensation or close to it. This new Act is  much needed, said Dr Muller, “since we simply cannot achieve transformative results in terms of an old order statute,” he explained.

 

the state, rather than a court, [would be] able to determine if any compensation can be paid

 

Dr Wegerif does not believe that the possibility of nil compensation is the key to accelerating land reform, which should ultimately address land inequality as a result of historic injustice. “They [the committee] have gone for the most simplistic minimum amendment,” Dr Wegerif explains in his seminar. “There is nothing that would encourage productive ownership, food security and agricultural reform,” he asserted. Dr Wegerif submitted his own comments, where he expressed the need for the amendment to explicitly favour marginalized South Africans, include the criteria of considering the social and ecological function of land, and include obligating the state to help beneficiaries of land reform to succeed in  food security and production in South Africa. Both Dr Wegerif and Dr Muller note the potential risk to the intended beneficiaries of land reform as well. “Who is getting expropriated without compensation and at risk of this in the future?” Dr Wegerif asks in his seminar, explaining that it is usually “poor, black, and indigenous people, not generally rich white people”. Dr Muller is concerned that protection against “arbitrary exercises of state power” is being taken from such beneficiaries. “What stops the state, in 30 years , from expropriating black owners of land with no compensation?”, he added. Dr Muller is of the view that the government has used the now repealed willing-buyer willing-seller policy that was previously used to attempt land reform as an excuse not to exercise its already possible powers. The state cannot use this excuse and simultaneously “[appropriate] more money to VIP protection every year, and still want to claim that it is serious about land reform for ‘the people’”.

Before the national lockdown went into effect on 26 March, public hearings were being held throughout the country for South Africans to voice their concerns and comments on the draft Bill. “The COVID-19 situation is very likely to affect the process going forward,” said Dr Wegerif, as the remaining public hearings were cancelled due to the pandemic. The draft Bill still needs to be revised, voted on in Parliament, and then signed into law by the President. Dr Wegerif advises people to “look out for attempts to interdict the draft going to Parliament, and then efforts to interdict the President from signing it into law” over the next few months. It will be important for South Africans to remain informed about the process, as land inequality affect millions of South Africans, and it is clear that much progress is still needed, in terms of the draft Amendment Bill, and the state of land reform in general.

Visual: Promise Zulu

 

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