Picture: ISTOCK
Picture: ISTOCK

A legal battle may be looming over plans by the ANC to change the constitution to make it easier to expropriate land without paying for it, with widely divergent views over the process that needs to be followed.

Land seizures could violate the founding provision in section 1 of the constitution, which guarantees human dignity, rights and freedoms, outlaws racism and ensures the supremacy of the rule of law, according to Robert Vivian, a professor of finance and insurance at the University of the Witwatersrand’s school of economic and business sciences. It can only be amended with the backing of 75% of legislators in the National Assembly, he said.

"I can’t see an argument anyone could put up against this," Vivian said at a function hosted by the Free Market Foundation in Johannesburg on Wednesday.

If that’s correct, it’s unlikely amendments will make it through the current parliament, where opposition parties that are against constitutional changes control more than a quarter of the 400 seats. Elections are scheduled for 2019 and it is unclear whether the ANC and like-minded parties will then be able to secure the majority they need.

Section 25

Pierre de Vos, a law professor at the University of Cape Town, argues that section 25 of the constitution, which deals with land rights, can be changed by two-thirds of legislators without violating any other provisions on condition there is not arbitrary expropriation and correct procedures are followed.

Government data shows more than two-thirds of farmland is owned by whites, who constitute 7.8% of the country’s 57.7-million people — a status quo rooted in colonial and white-minority rule.

The ANC decided in December that the situation is untenable and tasked a parliamentary committee to review the constitution. The panel has yet to propose amendments.

The ANC controls 62% of the seats in the National Assembly, while the EFF, which wants all land nationalised, has 6%.

The official opposition DA, which favours leaving the constitution unchanged, has 23% of the seats in parliament. Other opposition parties are divided on the issue.