/ 17 January 2020

Courts to guide land expropriation

Flexibility: The people living on the Wild Coast have for years resisted their land being mined for titanium. A ‘just and equitable’ reading of the law may allow for above market-based compensation.
Two changes are to be made for a court to determine how much must be paid for expropriated land. (Paul Botes/M&G)

Two legislative changes are required to allow a court to decide how much will be paid for expropriated land.

The first is enabling legislation, a draft Bill published in December last year for comment. This Bill aims to amend the Constitution, by providing for the expropriation of land without the payment of compensation.

The second process involves the drafting of additional legislation to section 25 of the Constitution to give powers to the courts to determine the circumstances when no compensation will be paid. This is intended to be spelled out when this legislation is drafted.

For the draft expropriation Bill to pass, the National Assembly, with a supporting vote of two-thirds majority, and the National Council of Provinces, with a supporting vote of a minimum of six provinces, must approve it.

Mathole Motshekga, the chairperson of the ad-hoc parliamentary committee overseeing changes to the legislation, says they hope to have completed their work by March 31. Motshekga says the new legislation “complements” the Constitution.

“The Constitution is a framework legislation. We are going to adopt an enabling legislation, which will deal with the details. We can’t
deal with the details in the Constitution [because] it is not something we can amend from time to time,” he says.

The preamble to the draft Bill notes the urgent need for land reform and, given that the dispossession of land was inflicted on the majority of people, expropriation without compensation is a legitimate option.

The draft Bill has evoked strong reactions, both in support of it and against it.

Speaking at the ANC’s 108th birthday celebrations this past weekend, President Cyril Ramaphosa reiterated the party and government’s stance that all legislative efforts to return land to those who were dispossessed of it will be done in line with the Constitution. He explained that the “return of the land will happen in a manner that promotes economic growth and sustains food security”.

The Democratic Alliance, the Institute of Race Relations and rights organisation DearSouthAfrica, launched online petitions calling for South Africans to make submissions to the proposed amendments.

AgriSA, a federation of agricultural organisations, has come out against the draft Bill because the Constitution in its current form does not hinder land reform and redistribution.

“It’s rather the pre- and post-settlement support, the transfer of title deeds, the lack of training and lack of support from the department is a big reason why we haven’t seen the emergence of new farmers and land being transferred to new owners,” says AgriSA’s chairperson, Willem de Chavonnes.

The Constitution currently reads: “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected …”

The proposed amendments to section 25 has an additional clause which reads: “National legislation must … set out specific circumstances where a court may determine that the amount of compensation is nil.”

The insertion of this clause has prompted three opposition parties, the DA, the Freedom Front Plus and the African Christian Democratic Party, to call for it to be scrapped.

“This is highly problematic as the threshold required for passing legislation is a simple majority in Parliament, said the DA chairperson of the parliamentary caucus, Annelie Lotriet, in a statement shortly after the draft Bill was gazetted in December.

“It also makes it possible for extremely arbitrary circumstances to be proposed through legislation.”

University of the Free State political analyst Ina Gouws says the amendment will create more “uncertainty” in the land reform process.

(John McCann/M&G)

“It is problematic that, in this amendment, property is not only limited to ‘land’ and that any property — for example, cash, computers and vehicles — may be expropriated. It is also problematic that lawmakers, specifically the governing party in any administration, may change the circumstances of expropriation without compensation at any time,” she says.

The process to change section 25 (the draft Bill) has been going on for nearly two years and various sectors of society having made their contributions to the possible amendments.

In December, just before the festive season, the draft Bill was published in the Government Gazette for public comment. The closing date for written submissions is January 31, when public hearings will be held.

The draft Bill envisions that the amendments will ensure “equitable access to land and will further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes”.

Motshekga said: “South Africans want certainty. They want to know where we are going. We think if land is released, we won’t be complaining about unemployment. There will be work for everyone to do. We think this is the key to the future.”

There were also concerns about when the draft Bill was gazetted — in December, when many South Africans are away on holiday.

“It is to be expected that there will be more interest and willingness to participate in the call for public comment regarding the proposed amendments for section 25. So it is regrettable that the process became open during the festive season where people may be preoccupied, displaced and restricted,” says Gouws.

De Chavonnes says many farmers use the holiday period for planting or harvesting and that the timing of the calls for the public to make submissions was inconvenient. “It would’ve been much better if [the ad-hoc committee] allowed for the public to provide written submissions until the end of February.”

Motshekga has dismissed these complaints as coming from “detractors who do not want to see the process go on”.

“It’s not a new process, the criticism is unfair. We also made sure that before we gazetted the Bill there was an inclusive process where all political parties and other stakeholders came together [to discuss the Bill]. We did not exclude anybody,” Motshekga says.

“During January we are going to use other platforms to make sure
that interested parties participate and we are also going to have public hearing so that everyone who has something to say makes their presentation.”

Thando Maeko is an Adamela Trust Business Fellow at the M&G