Mayibuye iAfrika!
New bill gives real meaning to old struggle slogan, writes Abdul Milazi
STRUGGLE martyrs must be dancing in their graves after the ANC successfully pushed the Expropriation Bill through Parliament this week, solving a 20year-old problem that has plagued the previously disadvantaged. The old struggle clarion call
mayibuye iAfrica came a step closer to being answered as the bill was passed with a landslide 202 votes against 88, despite objections from the DA, Freedom Front Plus, Economic Freedom Fighters (EFF) and the United Democratic Movement in the National Assembly on Tuesday.
The EFF ’ s only objection was that the bill still offered compensation. The red brigade wants expropriation without compensation.
The current Expropriation Act was passed by the apartheid regime in 1975 and is out of sync with the democratic Constitution that was approved by the Constitutional Court on December 4, 1996 and took effect on February 4, 1997.
The passing of the new expropriation Bill is a bold step by the ANC and a significant victory for what former President Thabo Mbeki recently described as “a predominantly landless, propertyless and unskilled African majority, constituting more than 75% of our population, which depends for its livelihood on employment in the public and private sectors, but much of which is ‘ unemployable ’ because it does not have the skills required by a modern economy and society ”.
Many who have vehemently opposed the Bill claim to do so on the basis that it violates the unconstitutional rights of individuals to own land or property, while others warn that it would scare off foreign investors.
Section 25 of the Constitution (“property clause ”) does provide for the expropriation of property for a public purpose or in the public interest.
The property clause further acknowledges and accepts the government ’ s land reform objectives as a “public interest ”.
Regarding fair compensation, Professor Jacques Sluysmans wrote in his paper Land Divided: Land and South African Society in 2013, that: “The Constitution seems rather straight-forward. In section 25 (3) we find a (non-exhaustive) list of five factors that are to be taken into account when determining the compensation for expropriation.” These include: (i) the current use of the property,
(ii) the history of the acquisition of the property, (iii) market value, (iv) whether the acquisition by the person expropriated and the capital improvement made to such property was made to the land with the assistance of the apartheid state and
(v) the purpose of the expropriation. ”
The passing of the Bill also demonstrates the ANC government ’ s new determination to change the positioning of South Africa as an economic outpost of the Western world to that of a free African country serving the interests of its people.
“The fight for freedom must go on until it is won; until our country is free and happy and peaceful as part of the community of man, we cannot rest, ” the 10th president of the ANC, Oliver Tambo once said.
The ANC in Parliament says the Bill, once signed into law, will help get the land reform programme moving again.
The programme has been hamstrung by the “willing buyer, willing seller ” approach adopted by the government, which results in endless court battles as most land owners often demand more than their farms ’ value. Public Works Deputy Minister Jeremy Cronin told Parliament that a lack of legislative clarity on how to proceed constitutionally with expropriations has been costly to our country.
“There are notorious cases of extortionate amounts of public money being paid for land restitution, in some cases,” he said.
In Europe, the European Court of Human Rights (ECHR), based in Strasbourg, France rules on expropriation cases, and determine whether an individual ’ s property rights are being violated or not.
Like the SA Constitution, the European Court requires that the expropriation should be “in the public interest.”
Sluysmans says in recent years the European Court has developed a new line in case law, in which exceptions to the rule of full compensation have been accepted. These include cases where less than full compensation is deemed acceptable and and also where the government does not have to pay any compensation at all.
In the famous British nationalisation case of Lithgow and Others vs United Kingdom in the late 80s, the European Court ruled that “economic reform or measures designed to achieve greater social justice may call for less than reimbursement of the full market value ”.
The Court has made similar rulings in Germany, Sweden, Poland, Lithuania, Croatia and Georgia where the governments wanted to restore land to individuals, lost during during communism regimes and protracted ethnic wars.
Under current Polish law, public authorities may expropriate property if negotiations for a voluntary transfer fail.
“A somewhat bold, but nonetheless very well supportable statement could therefore be that the factors that the European Court of Human Rights uses in order to justify that in certain special expropriation cases, notably cases of land reform, a compensation can be paid of (far) less than market value (or even no compensation at all) are basically the same factors that a South-African court may find in its own Constitution and may use to reach a similar outcome,” wrote Sluysmans.
It ’ s been more than 100 years since the South African Land Act, which prohibited black people from buying or occupying land except as employees of white people, was passed.
The Act gave white people ownership of 93% of land, with many black communities forcibly removed from theirs and forced to resettle in the remaining 7% allocated to them.
Black ownership of land was later increased to 13% through the Native Trust and Land Act of South Africa of 1936.
The significance of this week, and Tuesday in particular, may have escaped many, but it will be remembered for having oiled the wheels of change.
“We do not want to be reminded that it is we, the indigenous people, who are poor and exploited in the land of our birth,” Black Consciousness Movement founder Steve Biko wrote in one of his essays The Quest for a True Humanity.
The Land Holdings Bill, a new proposed law that will prohibit foreign ownership of land in the country, will be another milestone, once passed.
Meaningful change is already 20 years overdue, and the natives have become more than restless.
South Africa cannot experience real change while remaining a Western economic outpost, with foreign investors and tourists prioritised over its own citizens.