Change to property clause ‘not certainty’
ANC MPs Vincent Smith and Mathole Motshekga said it was a not a foregone conclusion that section 25 of the Constitution — also known as the property clause — would be amended.
ANC MPs Vincent Smith and Mathole Motshekga say it is not a foregone conclusion that Section 25 of the Constitution — also known as the property clause — will be amended and that the Constitutional Review Committee, which they head, will first engage in an extensive consultation process.
They were speaking at the end of a two-day land summit in Johannesburg, jointly hosted by Parliament, Nelson Mandela University, the University of Pretoria’s Gibbs business school and civil society organisations.
Smith said the review committee would call for written submissions next week and would then embark on a process of public hearings, spending three days in each province.
At the end of August, it would return to Parliament with a decision on whether it was necessary to amend Section 25 to allow for the expropriation of land without compensation.
“When we go back in August, we will not say that land must be expropriated. We will either say that the Constitution must be amended or not,” said Smith.
Participants at the summit were deeply divided on whether the amendment mooted by a motion passed by Parliament earlier in March was necessary.
On the one hand many, including legal experts, have argued that an amendment of the Constitution was not necessary as Section 25 set out the criteria for expropriation.
On the other hand, there were those who argued that an amendment was necessary to strengthen the state’s hand and give guidance to the courts.
“Our decision will be based on what makes the most sense, not on who shouts the loudest,” said Smith.
Motshekga corrected a perception created by Rural Development and Land Reform Minister Maite Nkoana-Mashabane on Tuesday, when she said she did not intend to wait for the parliamentary process to go ahead but would begin expropriating land where “just and equitable” immediately.
“What she [had meant] was that she would not wait for the parliamentary process to conclude before she utilised the Constitution [as it stands now] to expropriate,” he said.
“What she did not intend to say was that she would disregard a parliamentary process.”
Smith said he welcomed Nkoana-Mashabane’s statement because if she went ahead and used existing law to expropriate land without compensation, then her decision could be tested in court.
“Our job is to look at whether it is necessary to amend the Constitution. If she goes out and tests [the Constitution] it will help us in making that decision.”