On 27 February 2018 the National Assembly (NA) instructed the Joint Constitutional Review Committee to embark on a process of reviewing section 25 of the Constitution in order to make it possible for the state to expropriate land without compensation in the interest of the public and to consult widely in that exercise. That was what the Co-Chairperson of the Joint Constitutional Review Committee Mr Vincent Smith told members of the committee, invited guests and media at Parliament during the opening session of a colloquium that was hosted by the committee on section 25 of the Constitution last week.
Mr Smith said the committee is expected to report back in the NA on 28 September 2018 on the mandate. He said there is a universal acceptance that there is a need for the acceleration of the land reform programme in South Africa, which will also provide restitution for the majority of South Africans who lost their dignity during the ruthless colonialism and apartheid eras.
The NA’s adoption of the motion for land expropriation without compensation immediately after the 2018 State of the Nation Address was a remarkable, ground-breaking and historical progressive move in dealing with the huge legacy of colonialism and apartheid. Mr Smith said the committee is aware that the move has created a excitement and heightened expectation in some circles, but anxiety and panic in others.
The committee is committed to ensuring that it pursues its mandate on the issue of section 25 of the Constitution with sober and mature minds. The colloquium is aimed at informing the committee on the issues involved in carrying out its mandate.
Calls to amend the Constitution for the purposes of expropriation without compensation has also created a dichotomous reality. On the one hand, Mr Smith explained, said there is a school of thought that the Constitution as it is currently is not an impediment to land reform, and does not need to be amended. On the other, another school of thought holds that it does impede land reform and must be amended.
“At this stage,” Mr Smith explained, “the committee is just arming itself with information before it goes out for public hearings to listen to the public. Those in favour of an amendment of Section 25 of Constitution must convince us why and those appose to an amendment must also bring forward the argument against it.”
Among the guests at the colloquium was struggle veteran, constitutional architect and the former South African Constitutional Court judge Mr Albie Sacks, who was invited to speak on the implications of the review of Section 25 of the Constitution. The former judge emphasised that the Constitutional Court has not pronounced on land expropriation without compensation. Furthermore, he told the committee that he was neutral on the issue, but participated on grounds that he was invited to speak on section 25 of the Constitution.
The former judge said section 25 of the Constitution was not drafted at the 1992 Congress for the Democratic South Africa (Codesa) nor by the Constituent Assembly, which drafted the Constitution. He said section 25, which promotes and facilitates the redistribution of the land, was drafted by Parliament.
He emphasised the primacy of the principle of the judicial review tradition in a constitutional democracy to avoid the situation of the abuse of power. The former judge emphasised that the conclusion of the process of the review of section 25 of the Constitution must avoid producing legislation that allows someone in a powerful position to see a beautiful farm and decide to take it, as has happened in other parts of Africa.
He said the preamble of the Constitution and section 25 of the Constitution create a sound basis for the expropriation of land without compensation. “There must be meaningful engagement with the public to get the buy in of the people” Mr Sacks emphasised. He said a new expropriation Act that is contextualised is urgently needed.
“I am not taking a position, but am just suggesting a creative way that will get a bigger buy in.” He said reviewing of section 25 of the Constitution must be done in a manner that brings the nation closer rather than dividing it.
The Co-Chairperson of the committee, Mr Lewis Nzimande, said expropriation without compensation will go ahead. The question is the modalities. “We realise that a lot of work still lies ahead and therefore this is just the start. We will be going to the communities to listen to them. The consensus is that the access to land is not there and there are needs for land. The constitution needs to give expression to this.”
11 June 2018