Public interest: People queue to attend a public hearing in Kimberley on land expropriations. The ANC’s national executive committee decided at its lekgotla earlier this month that the courts should not be involved in the process of determining compensation for expropriated land. (Paul Botes/M&G)
One of the parties likely to take issue with the draft Bill to amend the Constitution that sets out the conditions for land expropriation, is the ruling party itself.
The draft law was issued in December by the parliamentary ad-hoc committee overseeing the amendments of section 25 of the Constitution, for comment by the end of February. The draft Bill envisages that the value of expropriated land be determined by the courts.
But, earlier this month at the lekgotla of the ANC’s national executive committee (NEC), the body resolved to have the power to expropriate land and to determine compensation given to the executive.
Explaining the NEC’s decision, Mathole Motshekga, who heads up the parliamentary ad-hoc committee on amending section 25 of the Constitution and the NEC land reform and food security commission, said that the courts are not an appropriate platform as they do not have the capacity to evaluate land.
“It is the government that has the office of the valuator general who can evaluate land and therefore determine the price. The courts only deal with disputes that are before them they cannot act proactively,” Motshekga said.
“The executive can act proactively. People who think that the courts must be responsible simply don’t understand the Constitution, how it is structured and how it works.
“Our [ad-hoc committee] mandate in Parliament is to make explicit what is implicit [in section 25 of the Constitution] so the ANC resolution is in line with our mandate,” he added.
Opposition parties, the Democratic Alliance (DA) and the African Christian Democratic Party (ACDP) have come out against the draft amendment, while the Economic Freedom Fighters (EFF) say that it will support the Bill that is out for public comment.
The DA’s parliamentary caucus chairperson, Annelie Lotriet, says giving the executive powers to expropriate and to determine compensation leaves room open for “corruption and political interference”.
“Moving the power to the minister to determine which property is to be expropriated and the quantum of the compensation will not speed up the [land reform] process. This can open the door for dispossession of property, which is against section 25 (1).
We are also against diminishing the role of the courts to only be involved in a review process,” Lotriet said.
Siyabulela Manona, who is a director at land research firm Phuhlisani, says that the proposed amendment by sections of the ANC is nothing new and can be seen as a factional battle within the party.
“The ANC is playing internal power politics, its one faction waging a battle against another faction and the only way the battle can be done is to destabilise what you are trying to do by introducing radical policy measures which you know well are not going to work,” he says.
Rosalie Kingwill, research associate at the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape, says: “The executive has always had these powers over land expropriation but has seldom used them over 25 years, [but] it has been used for restitution which provides a defined legal purpose.”
Kingwill adds that there is nothing theoretically wrong with the executive having these powers because it is the executive that is constitutionally responsible for expropriation. But she says the legal and institutional framework governing land expropriation is weak.
“Thus these issues become a political lever for political ends such as we have now, clearly electioneering. Land administration is a political issue — it is not just technocratic — but there should be checks and balances to ensure accountability,” she says.
“Secondly the law itself is weakly developed with regard to expropriation and compensation, and we need the judiciary to help develop the law. But the judiciary should not (theoretically) lead on policy, that is the legislature’s role and the executive to carry out the law,” Kingwill adds.
The ANC does not have the two-thirds majority needed to have the amendment to the Bill pass. In its report on the outcomes of the January lekgotla it says that it will need “consensus with other parties on the precise working of the amendment” in order for the Bill to pass.
If the ANC does not manage to convince the other parties to support its proposed amendment, the party plans to identify “an alternative strategy” according to the lekgotla’s resolutions. While remaining mum on what this alternative strategy would be, Motshekga said he was confident that the party’s amendment would pass.
“There are no right-thinking people who will not support this proposal. If they put their trust in the country first they will understand that if we don’t solve this problem we then go the Zimbabwe way where it becomes the law of the jungle and nobody will benefit from that process,” he said.
Motshekga confirmed to the Mail & Guardian this week that the ANC is in discussion with other parties in a bid to garner support for the amendment.
“This is a matter of public interest, it’s not a party political matter. We are in communication with other parties and we are confident they will support us because they have not put anything else on the table,” he said.
In response to questions about whether or not the EFF would support the ANC’s proposed amendments, the opposition party’s deputy president, Floyd Shivambu said the party would support the Bill that was adopted by the ad-hoc committee.
“The Constitutional amendment we are dealing with in Parliament is about amending the Constitution to allow for expropriation without compensation and the Constitutional review committee report that we overwhelmingly adopted by Parliament is clear on what should happen.
“That’s the Parliament report we adopted and the Constitution will be amended by more than two-thirds of Parliament to realise this position,” he said.
Thando Maeko is an Adamela Trust business fellow at the Mail & Guardian