The country is currently in the third round of public hearings on the proposed Amendment to the Constitution of S25, related to land expropriation. These are being hosted by an Ad Hoc Committee appointed by the government, and which is tasked to formulate the Amendment for presentation to the National Assembly.
In November 2019, we provided clarity on the Land Expropriation Amendment to S25 of the Constitution. In a nutshell, S25 forms part of the Bill of Rights, and regards how South Africa’s land reform and expropriation is determined.
On the table is an Amendment Bill, the 18th such in the Constitution’s history, which is a proposal that will allow government departments to decide when and if compensation is necessary when it expropriates land; in effect they could zero-value land. What must be emphasised however, is that even if the Amendment is passed, property cannot be taken for the sake of it; it remains that there must be a public need for expropriation, such as under-utilised land that can be used for new housing developments.
Overall the three objectives that are being considered for Amendment are:
- Subsection 2 (b); Provides for a court of law to make a decision for nil compensation when land or property is expropriated for land reform;
- Subsection 3; Sets out the conditions and circumstances that must be considered when a decision is made by a court regarding the amount of compensation; and
- Subsection 3A; National legislation must be passed that outlines the circumstances when a court may arrive at nil compensation for expropriated land or property e.g. The Expropriation Bill.
Reason for public hearings
In accordance with the parliamentary law-making process, the proposed Amendment Bill has to be presented to the public for commentary, and this falls to the Ad Hoc Committee. Because the Amendment Bill was presented for public comment over the festive season, the Committee has extended the public hearing platforms three times, with the current deadline now end April.
Rob Hutchinson is the managing director of Dear South Africa (DearSA), which is a non-partisan NGO that facilitates constitutionally mandated public participation in all levels of government policy formation. DearSA took up Amendment S25 on behalf of the public in 2018, encouraging participation and comment in the shaping of the Bill. Hutchinson makes clear that DearSA holds no influence or opinion towards the outcome.
“Our objective is to encourage active citizenship through educating, facilitating and monitoring public participation in the digital democracy.”
Hutchinson - who has himself attended, and continues to attend, some of the Ad Hoc Committee public hearings - explains how the public hearings process works. “The Ad Hoc Committee is divided into two groups; both facilitating hearings, but in the first round only written submissions were allowed. The oral submissions that are currently underway during March and April, 32 of them, are for those who have limited access to data-driven services. Individuals are allocated three to five minutes to present their case for or against.”
Ad Hoc Committee obligation to public
The Ad Hoc Committee is obligated by law to consider every individual application, be that written or oral, and must provide evidence that it has done so when it formulates the Amendment that is presented to the National Assembly, for debate and for voting on. The requirement for any change to the Bill of Rights, which is the section under which S25 falls, requires at least a two-thirds, or 67%, majority vote of the National Assembly, and the endorsement of at least six provinces’ through the National Council of Provinces. If it passes through these, it is then promulgated by the President.
Public understanding around the Amendment
Hutchinson is concerned however, that the public have not been properly informed by Parliament about the current constitutional standing on expropriation, and the history of the land restitution process. “What many don’t realise is that there have been 1.8-million land claims that have already been resolved and/or compensated over the past 20 years. There is also a misconception that expropriation is only limited to farms. The fact is that it includes buildings, additions, intellectual property, businesses etc.”
DearSA, in its provision of unbiased but comprehensive knowledge about the Amendment, has made on behalf of the public, 520 000 submissions to the Ad Hoc Committee. It has accumulated these opinions through its online platform and they have been presented as individual and unique submissions, for if it (or any NGO or political party for that matter), submits just an overall objection or acceptance, it will be considered by the Ad Hoc Committee as a single submission, and therefore no signatories’ comments are considered.
Hutchinson confirms that, to date, 90% of DearSA participants are opposed to the Bill.
Residential and urban differentiation
According to DearSA, some of the comments received include the need for clarity around the differentiation between residential and agricultural land. There is a further concern that urban land, purchased more than 10 years ago and that has not been developed and remains unoccupied by the purchaser, could be classed as a speculative purchase. This would potentially make it vulnerable to expropriation.
Hutchinson also says that RDP Housing has also raised red flags among its commentators. “Their concern is the historic corruption, fraud and poor quality around RDP projects. The call is for government to revert to providing serviced stands with title deeds to create development but with the add-on value of saving time and money.”
There are a myriad of concerns about agricultural, or farming, land, which let’s face it is further vulnerable given the current poor economic conditions.
Zimbabwe case in point
Just last week, the Zimbabwean government gazetted new legislation under which former landowners, whose land reform programme that was introduced in 2000, may now repossess their farms that were appropriated, or apply for monetary compensation.
Although the new legislation will not automatically grant compensation, and a legal case must be made, it’s somewhat of an acknowledgement that land expropriation, or the method in which it is undertaken, has far-reaching consequences.
The land-locked country, once considered the breadbasket of Africa, has struggled to regain its reputation for high-quality farming. The results of its expropriation plunged its poverty-stricken into even deeper dire straits, with unemployment that reached 90%, and food and fuel shortages. Investors withdrew because of the disregard for private property rights.
This is a lesson, according to high profile groups like AfriForum that has made it clear that it is opposed to land expropriation without compensation, but not necessarily opposed to land restitution, which addresses incidences where black people were unlawfully disposed of their land. Current law allows for this to happen without the need for expropriation.
Overall there is a ‘general’ impression from economists that the Amendment will have a devastating effect on the economy if the Bill is passed as proposed. In being unable to secure property rights, South Africa may find itself on the same destructive path as Zimbabwe. It is one of the most important decisions in the country’s legislature, being made at a time when new investment is heralded as the key to South Africa’s economic recovery.