The envisaged Constitution Eighteenth Amendment Bill, which aimed to amend section 25 in order to allow the state to expropriate land without compensation, failed to garner the requisite number of votes in the National Assembly. This means there will be no changes to the Constitution.
According to section 74, any Bill that seeks to amend the Constitution must be passed by a 75 per cent majority in the National Assembly, or 267 members out of the total 400.
Before it was put to a vote by members, the Bill was subjected to a thorough debate, which was opened by the Chairperson of the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution, Dr Mathole Motshekga, He argued that it is only through this Bill that land can be returned to the people.
“Without making land available, social ills and moral decay will continue in our country, and those who do not support the Bill want the suffering of the African majority to continue,” said Dr Motshekga. He also took time to remind South Africans about the history of land dispossessions, describing them as “the original sin”. The committee’s objective by amending the Constitution, was to “correct the original sin”.
Dr Motshekga related a long history of dispossession, from the 1700s until the passing of the notorious 1913 Natives Land Act, which cemented the territorial and racial segregation began by Dutch and British settlers. The Act restricted so-called “natives” to ownership of only seven per cent of the land, which was later reviewed to eight per cent until 1936, when it was increased to 13 per cent.
Dr Annelie Lotriet of the Democratic Alliance dismissed the Bill, saying it was not necessary to amend the Constitution in order to expedite land reform. “We need to ask ourselves whether it is necessary to amend section 25. Does it comply with the Bill of Rights? And, if we continue with this amendment, it will have dire consequences for the country and a threat to the Bill of Rights,” she said.
She also argued that section 25 in its current form is clear on how the state can to use existing laws to address land reform. “The Bill creates uncertainty on property rights and it goes against the rule of law and that’s not what the country needs right now. We believe the Constitution, as it stands, there is no need to amend it,” Dr Lotriet added.
The Economic Freedom Fighter also rejected the Bill and accused the majority party of tampering with its original motion, which Mr Julius Malema said was “very radical and clear on expropriation of land without compensation”.
“The ruling party proposed a motion which took us a long winding road. We tried, but the parliamentary process was hijacked by the ANC and its handlers. We are led by cowards who do not want to offend their handlers. They are scared to deal with the land issue decisively. This is a complete departure from the radical proposal by the EFF in 2018. This Bill will undermine the struggle of black people. The ruling party doesn’t respect the rights of the dispossessed,” Mr Malema said.
Another party arguing against any amendment to the Constitution was the Inkatha Freedom Party (IFP). IFP MP Mr Narend Singh said the Bill will not change South Africa’s land ownership patterns.
Furthermore, the constitution is not to blame for the slow land reform programme. “The process has been used as a political tool to convince people who are not legal experts that the Constitution is at fault for slow land reform. The truth is corruption delays land redistribution. There is an urgent need to conclude outstanding land claims since 1998 and stop playing political games at the expense of the people … There is no need to amend the Constitution; section 25 is broad enough to deal with the land issue. What we need is the will of government to act and advance land reform,” said Mr Singh.
Mr Corne Mulder of the Freedom Front Plus warned that land expropriation without compensation will contravene the international bill of rights and have dire consequences for South Africa and its economy. “It will make property rights null and void, lead to economic failure and collapse of South Africa. International best practice guarantees property rights and the rule of law,” he said.
Mr Wayne Thring of the African Christian Democratic Party (ACDP) said his party supports land reform and restitution with compensation. “We acknowledge the need to correct the wrongs of the past, but property rights must be protected. There will be no investment when there is no security.
“From a legal and constitutional position, there is no need to amend. The problem is failure to implement existing laws, incompetence and corruption,” he said.
The United Democratic Movement’s Mr Bantu Holomisa submitted that the 1913 cut-off date in the land claims process must be removed. He proposed that the British and the Dutch must provide financial support for South Africa’s land programme.
Mr Vuyolwethu Zungula of the African Transformation Movement (ATM) said passing the Bill will be “selling out”. The ATM believe that the cut-off date for claims should be backdated to 1652. “We plead with the ANC to withdraw the Bill and go back to the drawing board,” he said.
Mr Shaun August of Good said while his party agreed there is an urgent need to address land reform and that expropriation is a legitimate tool to address the injustice, there is no need to amend the Constitution to achieve a just land reform with no compensation. “Failure to address land reform is not failure of the Constitution or section 25; we can achieve just land reform with existing laws,” said Mr August.
The National Freedom Party’s Mr Ahmed Shaik Emam said his party will never support nationalisation of land in South Africa. The National Freedom Party believes individual land ownership should be protected.
“Land restitution is extremely important,” said Mr Willie Madisha of the Congress of the People, “and it ought to have happened after the adoption of the Constitution. Our government has not done what it was supposed to do. Many decisions are taken, but never implemented. More has to be done, starting with land audit.”
By Sakhile Mokoena
9 December 2021