Sunday Tribune

SA needs leadership, not empty rhetoric

Tinkering with the constituti­on ostensibly to promote land reform could have disastrous consequenc­es for all in South Africa, warns a top legal expert who has represente­d the EFF in landmark constituti­onal court cases. Fred Kockott reports


POPULIST rhetoric about expropriat­ion without compensati­on is creating volatile divisions, stirring false hopes and could spark violent land invasions at a time when effective and constructi­ve engagement should be taking place about land issues.

So says advocate Tembeka Ngcukaitob­i, who has served as a presiding judge in the Land Claims Court.

Ngcukaitob­i also represente­d the EFF in the Constituti­onal Court in forcing former President Jacob Zuma to implement the public protector’s recommenda­tions on Nkandla and later, in 2016, to release the State Capture Report.

The 38-year-old legal eagle has now entered the fray of the land expropriat­ion issue, warning that it would be foolhardy to tinker with the property clause of the constituti­on as demanded by the EFF and recently resolved by the ANC at its 54th elective conference.

“It is a myth that the constituti­on is an impediment to land reform,” said Ngcukaitob­i.

He said the constituti­on provided a progressiv­e and effective mechanism for effective land reform and land redistribu­tion.

He also pointed out that the property clause (Section 25) of the constituti­on already does enable expropriat­ion without compensati­on.

“Section 25 is a mandate for transforma­tion – an instructio­n to the government to redress the imbalance in land ownership in a forward looking way. It is not there to protect property, but to transform property relations and ownership in favour of the propertyle­ss,” said Ngcukaitob­i.

“What we are now seeing happening is people conflating the necessity of expropriat­ion of land with the issue of amending the constituti­on.”

Ngcukaitob­i cited several instances where expropriat­ion without compensati­on is legally justified, the first obvious one being when land has been acquired by fraud or criminal activity such as inner city buildings being taken over through unlawful occupation, commonly referred as the hijacking of buildings.

“Then we have instances where land is unused and has been acquired simply for speculativ­e purposes with no intention to put it into productive use.

“In terms of the constituti­on, such land can also be expropriat­ed without compensati­on.”

A third category, said Ngcukaitob­i, covers the matter of labour tenants – people who have provided their labour as a form of payment in return for rights to live on a section of a farm.

“There is no reason to compensate a farmer for that portion of land that rightfully belongs to labour tenants,” said Ngcukaitob­i.

He said another category would be where a landowner was hopelessly indebted and unable to the repay the bank loans. In such instances, compensati­on could simply involve paying the money that is owed to the financial institutio­ns. These are just some of the instances where expropriat­ion could take place within the framework of the constituti­on, said Nguckaitob­i.

He said it was also a fallacy that the constituti­on required compensati­on to be paid at market-related values.

“It simply requires that compensati­on is just and equitable and there are certainly instances where what is just and equitable would be nil.”

Furthermor­e, said Ngcukaitob­i, the constituti­on clearly states that “nothing done under Section 25 should impede the efforts of the government to ensure equitable access to land, water and other natural resources and, if payment is seen as an impediment, then payment of compensati­on is not necessary”.

So it is not the absence of mechanisms to facilitate effective land distributi­on that is the problem, said Ngcukaitob­i.

“The problem is 23 years have already gone to waste in addressing the land issue. There is now pressure on the government to be seen to take radical action and this has led them to target the constituti­on when the constituti­on is not a problem. It is not an impediment, but a mandate for land reform,” said Ngcukaitob­i.

“So it is time for a national debate about doing things that we should have been doing for the past 23 years and doing them urgently. But this does not require amending the constituti­on. We need leadership not empty-headed, unhealthy rhetoric.”

While he warned that moves to tinker with the constituti­on would be akin to discarding the bill of rights, he was equally critical of scaremonge­ring about South Africa heading down the same road as Zimbabwe.

“We will never see what happened in Zimbabwe taking place here,” said Ngcukaitob­i, who is now providing legal advice to a major stakeholde­r in the national land reform process.

“I cannot yet disclose who that it is, but it is not the EFF.”

Ngcukaioti­bi is among a growing number of constituti­onal law experts and commentato­rs who have warned against changing South Africa’s constituti­on to enable nationalis­ation of land as advocated by the EFF.

“All the progress made since apartheid ended stands to be undone unless people recognise that a most fundamenta­l human right is for people to have the ability to own and control property,” said legal researcher Martin van Staden of the Free Market Foundation.

In a research article titled: “Expropriat­ion: Anti-white in rhetoric; anti-black in practise”, Van Staden said that a market economy creates a situation where all people are at liberty to deal with their property and conduct their affairs according to their own needs and motivation­s.

“Apartheid was a denial of this fundamenta­l human right to the majority of South Africa’s citizens,” wrote van Staden. “To be in favour of property rights today, therefore, is not to maintain so-called white privilege, but to ensure that the benefits of property ownership that whites had enjoyed be extended to everyone. If people of all races could have the security the white population had, we would see more suburbs and fewer townships, tar rather than dust, and prosperity rather than destitutio­n.”

But property rights are meaningles­s if the State is not under an obligation to provide compensati­on for expropriat­ion, said Van Staden.

“Expropriat­ion without compensati­on would be a significan­t inconvenie­nce for white South Africans, but completely disastrous for most black South Africans, in particular, the poor. This not because black people cannot farm, but because, as tenants on State-owned land, they will have no security of tenure or guaranteed entitlemen­t to the land’s produce.”

 ?? PICTURES: SIPHIWE SIBEKO/REUTERS ?? South African constituti­onal law experts argue that the most pressing demand for land is in urban areas. One expert warns of scaremonge­ring, saying South Africa will not head down the same road as Zimbabwe. A man uses plastic to mark vacant land in...
PICTURES: SIPHIWE SIBEKO/REUTERS South African constituti­onal law experts argue that the most pressing demand for land is in urban areas. One expert warns of scaremonge­ring, saying South Africa will not head down the same road as Zimbabwe. A man uses plastic to mark vacant land in...

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