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.”