Expropriation: public hearings on Section 25 changes

Parliament recently hosted public hearings on the proposed changes to Section 25 of the Constitution, which will make explicit mention of expropriation without compensation as a means to achieve land redress.

According to Annelize Crosby, head of Land Affairs at Agri SA, it was crucial to separate two important yet different processes currently taking place.

“Firstly, there is the issue of changing the wording of Section 25 of the Constitution to make explicit that expropriation without compensation can be used to address land reform. Secondly, there is the draft Expropriation Bill, which will replace the current law on expropriation.”

Crosby said that the Motlanthe high-level report and some recent Constitutional Court judgments pointed out that land reform challenges had little to do with the requirement of compensation, but rather with poor implementation, corruption and inadequate budgeting.

“We cannot help but think this is a political strategy to distract people from the real issues of failed land reform delivery. It is dangerous and short-sighted,” she said.

Agri SA had commissioned an independent study, led by economist Dr Roelof Botha, to explore the economic consequences of expropriation without compensation.

“In short, international experience and economic models show a sharp decline in economic growth and a subsequent decline in tax revenue. Without a functioning agricultural economy, which is hedged against the market value of property, land reform cannot work,” Crosby said.

She added that the Expropriation Bill process was likely to follow the constitutional amendments. This was because the bill, which will be a law of general application, needed to take its cues from the Constitution, and not the other way round.

Agri SA agreed in principle that new expropriation legislation was needed, but argued that it needed to adhere to international best practice, which was built on the premise that society as a whole should not benefit at the expense of an individual. Therefore, placing the affected individual in the same economic position they would have been in had no expropriation taken place needed to be the reference point for any expropriation action, Crosby said.

Agri SA was concerned that the current definition of expropriation in the draft bill was too narrow. As it stood, expropriation was defined as actions where the state acquired rights in property. This could open the door to state abuse, as actions whereby government infringed on property rights, without acquiring the rights, might not be compensable, Crosby said.

The public participation process would allow for input on the bill until June, Crosby added. – Wouter Kriel