“So we are coming. If we need to expropriate your land, we are going to do that because it’s in the Constitution. It’s not something that we are going to create … We can’t wait for [the constitutional review process].”
These are the words of the minister of rural development and land reform, Maite Nkoana-Mashabane, speaking at the National Forum for Dialogue on Land, Heritage and Human Rights in Johannesburg on Tuesday.
The forum was convened at the request of the parliamentary constitutional review committee, which is looking into amending Section 25 of the Constitution to provide for the expropriation of land without compensation.
But many of the ministers and legal experts at the forum agreed that the failure to implement land reforms was the fault of the government rather than a weakness of the Constitution.
Nkoana-Mashabane said her department was not going to wait for the constitutional review committee to complete its work before implementing land reform.
Section 25 stipulates that no law should permit the “arbitrary deprivation of property” and that the state can expropriate property “for a public purpose or in the public interest” and “subject to compensation” agreed to by those affected
or decided or approved by a court.
The amount of compensation should be “just and equitable”, balancing public interest with that of those affected. This should also take into account what the property is being used for, the history of how it was acquired, the market value of the property, the extent of direct state investment and subsidy in the acquisition, beneficial capital improvement of the property and the purpose of the expropriation.
The minimal progress in implementing land reform and correcting what President Cyril Ramaphosa called the “original sin” of land dispossession was a recurring theme among the speakers.
Werksmans Attorneys director and land claims specialist Bulelwa Mabasa said amending the Constitution was not the answer. Instead “the Constitution has yet to be applied”. The real problem was that current policy was not aligned with the Constitution and that the departments dealing with land reform were hamstrung by underfunding.
Mabasa said that there had been an obsession with the willing-buyer, willing-seller principle, “which is not a principle which resides in the Constitution”. The Land Claims Court’s jurisprudence had itself fallen into that trap, to such an extent that there was now a body of legal precedent that centred on market value.
“But the Constitution clearly states that ‘just and equitable’ compensation within it allows government to take each case based on its own merits, and it can possibly lead to a conclusion that says there is no compensation payable if you take into account the history of the acquisition of the land,” Mabasa said.
Mathole Motshekga, chairperson of the portfolio committee on justice and constitutional development, said this reflected a “failure of government to exhaust all the avenues that the Constitution provides” to address the land question.
The deputy minister of public works, Jeremy Cronin, echoed Mabasa’s views, saying market value was “not the prime factor and in fact is not the fulcrum factor either … It’s a factor that can be considered but doesn’t have to be. The consideration is just and equitable.”
He encouraged Nkoana-Mashabane to exercise her expropriation powers in line with the Constitution and without fear of being challenged in court, which was inevitable.
Nkoana-Mashabane, who took over the department last month when Ramaphosa reshuffled his Cabinet, said South Africans had a culture of creating institutions “to draft documents to explain to us that which we said we want implemented”.
She said she wanted to join the team that spoke to “doing”. “Let’s get into the mode of doing so that history can judge us well,” she said.
To clarify the issue of compensation, Cronin suggested an amendment to the Expropriation Bill that would read: “In cases of expropriation in the public interest‚ the state may withhold compensation where the property is an abandoned building‚ unutilised land‚ property held unproductively and purely for speculative purposes‚ underutilised property owned by public entities‚ and land actively farmed by labour tenants in the absence of a title-deed holder.”
The managing director of the Banking Association of South Africa, Cas Coovadia, said, although the land reform debate was an emotional and a political issue, it was necessary to “move beyond the rhetoric and ideology”.
He said the banks had a R129-billion exposure to agricultural loans, which are underpinned by land as collateral.
If the security of these loans was threatened, it could cause a failure in the financial sector, which “can’t be in the national interest”.
He said the current ANC policy on land expropriation was not “populist talk” but rather “something we could work with”.
The policy resolution taken at the ruling party’s 54th elective conference in December states that land expropriation without compensation must be undertaken in a way that does not endanger food security, undermine future investment, economic growth and overall job security.
“If we do this in a way that impacts negatively on the ability of the financial sector to finance agriculture and land, and impacts negatively on the imperatives of growth and to address poverty, unemployment and inequality, then we are not going to get this done and we will be shooting ourselves in the foot,” Coovadia said.
Litha Magingxa, Land Bank group executive on agricultural economics and capacity development, said the bank had been forced to operate like a commercial bank because it no longer got support from government to buttress the agricultural sector. The support would assist it to subsidise things such as interest rates.
Magingxa said the Land Bank needed more financial products that were a blend of private and public sector funding “to realise the objectives of the land reform programme. Without that support, we are not going to go anywhere; there’s no change we are going to experience.”
Tebogo Tshwane is an Adamela Trust trainee financial reporter
at the Mail & Guardian