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The National Assembly’s decision on the expropriation of land without compensation has raised uncertainties, concerns and questions about the feasibility of this policy, which is yet to become law. To determine the applicability and legality of the policy, the colloquium that was hosted by the Joint Constitutional Review last Friday at Parliament consisted of legal experts, academics, business organisations and entities that have a shared interest in land-related matters whose representatives shared their expertise on the matter.

The academic session of the colloquium began with Prof Ruth Hall from the Institute for Poverty, Land and Agrarian Studies, saying that concerns over land are historical and have even found expression in the Freedom Charter, but the charter never explained which land should be shared, by whom and how.

The new process should first take stock of the challenges and achievements, if any, of a raft of laws that were passed to bring about land reform. She cited the state’s incompetence as a major factor that failed well-intended land reform laws.

Referring specifically to land claims backlogs, Prof Hall said to date, the state is sitting with many claims that are either not gazetted, not settled or not finalised, because of weak institutional capacity. She said instead of a full bench of judges, land claims are administered by a single judge.

“We need a new approach to this. If not, it will take decades to resolve the current and second round of claims before the Land Claim Commission, she said. “At the current pace, it would take up to 35 years to revolve old land claims. And 143 years to process the new ones. This shows that there is no political will by the executive to resolve this matter,” Prof Hall emphasised.

In light of alleged land corruption and inherent deficiencies in state machinery, she asked: “Can we trust the state with this new process when it has so many deficiencies and its officials are faced with mounting allegations of land corruption?”

With regard to the expropriation of land without compensation, she said the expropriation of land without compensation should have a stipulated spectrum rather than a blanket approach. “Indicate a spectrum of circumstances to operationalize the criteria in S25(3) and stipulate zero compensation, partial compensation, market-related compensation or premium above market price. This could provide a means of advancing expropriation of land without compensation in certain circumstances, providing policy and legal certainty, subject to judicial review.”

Organised agricultural labour organisations and the banking industry also shared their views during the colloquium. A representative of AGRISA, Mr Dan Kriek, said it supports an orderly process of land reform, but believes there is no need to amend section 25 of the Constitution to accommodate expropriation of land without compensation. “Changing Section 25 is not going to fix the problems that we are experiencing with land reform. It will cause a host of other problems. The slow pace of land reform to date is in our view a failure of implementation rather than a failure of a legal framework,” said Mr Kriek. The United Nations’ guide on international best practice for expropriation says that compensation is required, he concluded.

Dr Vuyo Mahlati of the African Farmers’ Association of South Africa said there is a need to amend section 25 of the Constitution to ensure that “we don’t leave its interpretation to courts”. Dr Mahlati is of the view that the amendment will come up with a centralised and transformative land reform programme. “This would help to level the playing fields, give effect to food security and ensure that black commercial farmers are part of the value chain of agrarian reforms in this country. This could bring about inclusive growth in our agricultural sector,” she explained.

Mr Pierre Venter of the Banking Association of South Africa, said amendment of section 25 of the Constitution should be considered in a manner that does not affect the country’s property market. “We should ensure that this amendment does not elevate the risk of undermining property as an assert to invest in.” If such an amendment is made, there is a risk of an increase in local and foreign bonds. “We may go down to a junk bond status in the global bond index. “We draw our bond investment from foreign pensions that expect a high return on investment, which stands at 368 billion currently.”

The Congress of Traditional Leaders of South Africa’s Kgoshi Letsiri Phaahla stated that no land must be expropriated from traditional leadership. “Our understanding is that this amendment is meant to expropriate land from those who own the majority of land and give to those whose land was expropriated through illegal means. Land acquired by illegal means must be expropriated.”

The Co-Chairperson of the committee, Mr Vincent Smith, said the committee is having these engagements to determine the best way for expropriation without compensation to be effected, either with or without the amendment to the Constitution. “We are doing all this to ascertain how do we do this in a way that will maintain stability.”

The other Co-Chairperson of the committee, Mr Lewis Nzimande, said through the colloquium the committee has gained valuable perspectives on various stakeholders that will inform the work of the committee going forward. The forthcoming public hearings to solicit the views of South Africans on this matter, which the committee will commence shortly, will be crucial before a final decision will be made about the modalities to be followed in executing the expropriation of land without compensation. 

Abel Mputing
11 June 2018