‘No need to amend Constitution’

Amending the Constitution to allow for land expropriation without compensation is not necessary as it is already provided for under current legislation, Prof Ruth Hall of the Institute for Poverty, Land and Agrarian Studies at University of the Western Cape said.

Amending the Constitution to allow for land expropriation without compensation is not necessary as it is already provided for under current legislation, Prof Ruth Hall of the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape said.

Speaking during a seminar on the land issue on Tuesday, she said over the last 20 years the government had failed to give effect to the property clause that allowed for expropriation without compensation.

Hall said the debate on land reform needed to be refocused as it narrowly concentrated on how to get the land and not what will happen to it.

The core questions that need to be answered included: who should get the land and for what purposes, and what land should be targeted, said Hall.

“There is a need to put some clear proposals together around ‘equitable access’ and countering elite capture. This is the core land question. Our best suggestion for now is the National Land Reform Framework Bill, as proposed by the high-level panel, which would define ‘equitable access’ and create responsibilities on different spheres of government, especially municipalities, to engage with people seeking land, and establish transparent and accountable processes for prioritising those in greatest need. That is surely what equitable access means,” said Hall.

In February, in a move that spooked investors, Parliament voted in favour of an EFF motion for land expropriation without compensation. The constitutional review committee was instructed to review Section 25 of the Constitution and other property clauses, and report back to Parliament in August.

In March, ANC MPs Vincent Smith and Mathole Motshekga said it was not a foregone conclusion that Section 25 of the Constitution — also known as the property clause — would be amended. They said the review committee, which they head, would consult extensively.

Hall argued that the EFF was pushing for a blanket approach to land expropriation while the ANC was more in favour of a case-by-case approach as articulated in the Constitution.

“If the view is that the state should become the custodian of all land as argued by the EFF, then custodianship, like in the case of minerals, does not constitute an expropriation. This could happen. In the 2013 Constitutional Court case of AgriSA versus Minister of Minerals and Energy, [it was stated that] making the state a custodian of a resource doesn’t constitute an expropriation; the owners stay owners, and the state is custodian,” said Hall.

“This is different from nationalisation. The state didn’t have to expropriate mineral resources; it simply became the custodian under the Minerals and Petroleum Resources Development Act.

“I doubt the ANC will agree to custodianship, given its history of shoring up private property rights — but this will be central to the debate through this year.”

In November, former president Kgalema Motlanthe tabled a review of key legislation in Parliament. His high-level panel proposed that instead of amending the Constitution, the government should use its expropriation powers more boldly, in ways that test the provisions in Section 25 (3), particularly in relation to unutilised or underutilised land.

The panel also found that a lack of leadership and policy direction, corruption and inadequate budget (budget for land reform is less than 0.4% of the national budget, with less than 0.1% set aside for land redistribution) were to blame for SA’s failed land reform.

THE CORE QUESTIONS THAT NEED TO BE ANSWERED INCLUDE: WHO SHOULD GET LAND AND FOR WHAT PURPOSES