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

Sunday Tribune - - FRONT PAGE -

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...

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