/ 13 March 2018

Tardiness, not Constitution, to blame for land crisis

Cyril Ramaphosa and Nelson Mandela with the Constitution promulgated in 1997. Section 25 makes it clear that an expropriation law could have been passed but politicians lacked the political will to do so
Cyril Ramaphosa and Nelson Mandela with the Constitution promulgated in 1997. Section 25 makes it clear that an expropriation law could have been passed but politicians lacked the political will to do so

So the Constitution is to blame! If only section 25 had not been included in the Constitution, land reform would already have been nearing its objective of ensuring adequate restitution for the millions of South Africans who were driven off the land before, and particularly after, the passing of the 1913 Native Land Act. That this has not happened after almost 24 years of democracy is clearly a national disgrace. The claim that section 25 of the Constitution is the cause is almost as clear as a Gwede Mantashe press conference.

Section 25 was indeed the product of compromise at the Convention for a Democratic South Africa (Codesa) negotiations that began in 1991 but, as the text reveals, save for the qualified protection of property, the clause was a victory for the ANC negotiators. It recognised expropriation for a public purpose or in the public interest. The amount of compensation was carefully formulated. It had to be just and equitable, taking account of a range of factors: the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation.

Public interest was defined to include the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources. Further, section 25(6) provides that the state must take reasonable legislative and other measures, within its available resources, to foster conditions that enable citizens to gain access to land on an equitable basis.

The wording of the section makes it clear: there is constitutional recognition that land redress is a public interest issue. There is a calibrated formula regarding compensation so that, depending on the case, little or nominal compensation to owners would pass constitutional muster.

It bears emphasis that, 24 years after the advent of democracy, we still have no new legislation to deal with expropriation. The passing of the Bill has been stalled for far too long. Given the express wording of section 25, an expropriation law could have been passed in terms of which the issue of compensation after expropriation would not be a drain on state resources. In summary, section 25 has little to do with the present spatial situation of South Africa. Limited delivery, an inadequate commitment to redress the pain and lethargy — these lie far closer to the truth.

Had the state sought to expropriate and then encountered reactionary jurisprudence from the courts that subverted the legitimate aim of restoring land to rightful owners, the present move to amend section 25 would have made sense.

But the state has never tested these constitutional boundaries. It is more than likely, based on cases dealing with land, that the judiciary would not have placed obstacles in the way of rational land policies designed to promote the public interest. But that has not occurred — because of government omission rather than constitutional commission.

It appears that rationality has disappeared from this debate. Section  25 is to be amended. Whatever the amendment, the expropriation cannot be arbitrary in nature for that would be unconstitutional, unless we repeal the core of the Bill of Rights. If, as the government has suggested, the expropriation must not detrimentally affect the economy or food security, will these qualifications be inserted into the amended constitutional text or enable legislation?

If so, the courts will surely struggle to apply them to some individual cases because they can and will be subject to contested meanings. Thus the proposed amendment, even where the government shows an energy to engage with our historical legacy, which to date has been absent, will not be free of complex and protracted litigation.

That South Africa’s spatial geo-graphy is so similar to what existed when apartheid rule ended is an obvious blight on the nation and a major impediment to constructing a society based on dignity, freedom and equality for all who live in this country. But the fault does not lie with section 25 and no clear argument other than the abolition of all private ownership of any and all South Africans has been offered.

When MPs travel through Cape Town to Parliament, perhaps they should ask whether section 25 is to blame for the fact that almost 24 years into democracy District Six has still not been restored to those who suffered the brutality of forced removals. Or, more generally, they may question why our cities, where an increasing majority of South Africans now live, are so racially divided that spatial apartheid lives on.

A land debate designed to ensure equitable access for all to the land and, more generally, the natural resources of the country, as in section 25(4) of the Constitution, is an imperative for the future of South Africa. Blaming section 25 of the Constitution is nothing more than a cheap cop-out for the tardy progress made to date.