/ 28 May 2018

Land expropriation without compensation? On these conditions

For government to own property on the basis of political fiat
For government to own property on the basis of political fiat

President Ramaphosa’s qualifiers to amending Section 25 of the Constitution to enable land expropriation without compensation (EWC) were:

  • Prioritising food security
  • Enhancing economic stability
  • Minimising chaos (“land-grabs”).

The Food Freedom Fighters (FFF) is inviting interested members of the public to add their names to this submission, which is a caveat to whatever amendments are made. An explanation of the FFF’s business model may help:

In the Durban Metro alone, the city’s population grows at about 2 000 people a week (and only 15% of residents pay rates). The FFF tackles urban migration’s impact on food security by buying the surplus crops of people who already grow food in their yards for private consumption, and selling it on to other consumers. By doing this, the FFF catalyses an evolution in the relationship between the property-owner and the gardener from that of employer-employee to an egalitarian one of business partners. This association begins with the conversion of all or part of the property-owner’s premises from, say, a non-utilitarian lawn, into a manicured vegetable garden.

Because the FFF buys the food from the gardener (not the property-owner), s/he “reaps” the financial value of land ownership without the initial owner losing the fact of land ownership. Said gardener then becomes an urban farmer who, as a businessperson, can expand operations to all the gardens where she or he previously maintained only flowers. This businessperson can employ people, too.

The homeowner’s role would be keeping the property agri-viable to maximise yields by facilitating steps to protect soil integrity, sustain water-saving practices, shelter plants from the elements and use clean energy to power irrigation and other aspects of the operation. With the necessary paperwork complete, these actions would make the business partnership not only B-BBEE-compliant but also a microcosmic example of what a sound triple-bottom line looks like in terms of achieving economic justice, enhancing the physical environment and bringing about the empowerment of others in society.

READ MORE: Small-scale farmers should be at the centre of land reform in South Africa

Our submission envisages government as offsetting the initial costs of this exercise by designating participating premises as ‘protected environmental economic zones (PEEZ), a term coined by academic Helen Moffett when I was explaining the concept to her at the Franschhoek Literary Festival) and by constitutionally, legally defining complying owners as, let’s say, “ideal property-owners”.

Government can further offset costs by offering incentives for getting off the grid through rebates for using, as an example, JoJo tanks, while universally reimbursing properties that add power back to the grid. The submission opposes taxing solar panels and supports net metering reimbursement at no less than the rate at which power consumption is charged.

READ MORE: ANC’s Enoch Godongwana: ‘We’ve made some mistakes on land’

If government can spend money on RDP houses, it makes sense to shift some of that money onto the set-up costs of PEEZs without unduly enriching their owners on the one hand, and without making them single-handedly shoulder the costs of the urban farmers’ scaling their operations up on the other.

Neither is the submission to say urban farmers should be limited to entrepreneurship and never receive expropriated land by whatever means are allowed by whatever amendments are made to the Constitution: the submission is a caveat to whatever happens, not a counter to a scenario that likely won’t happen, that the designation of PEEZ and the corresponding definition of the ideal property-owner should be sufficient to protect implicated business arrangements that rely on the distinct contributions and rights of those who enter into them.

Where (black) labourers enjoy most of the freedoms and financial value of the property that they would have enjoyed had they owned the property under discussion (and are therefore business partners on paper and in practice, not just labourers), the fact and title deed of property ownership should not be removed from owners who maintain those properties out of their own pockets, let alone moved to the state to be dangled in black people’s faces through leases that are not outright ownership.

Since other sections may be amended (which is why this submission is so comprehensive) and since the definition of “property” in section 25 of the Constitution is not limited to land, anyone — the state included — should be exposed to EWC on failing to meet the criteria of the ideal owner.

This would make it theoretically possible for a private entity to argue in court that its own foreseeably better stewardship of a public company (for example SAA), in terms of meeting objectives corresponding to the above-mentioned triple bottom-line met by complying PEEZs, should compel the court to abrogate the state’s claim to that property (howsoever legislated) and uphold the Constitutional preference for the “ideal property-owner” earlier spoken of, over the state’s relatively arbitrary claim over that property.

For government to own property on the basis of political fiat, where it has not demonstrated restitutive stewardship over that property, is an abuse of political power gained through sheer majoritarianism. This undermines Constitutional democracy and the rule of law.

A court should have tools to excise such parasitism from State resources. As Deuteronomy 16:20 says, “Justice alone you shall pursue, that you may live and possess” — not lease — “the land which the Lord your God is giving you.