Court showdown on expropriation without compensation looms

Opposition parties and the Institute of Race Relations (IRR) are preparing to take legal steps to prevent the push by the ANC and the EFF to amend the constitution so as to make it clear how land could be expropriated without compensation.

Parliament’s joint constitutional review committee is finalising its report and recommendations on whether a constitutional amendment is needed to ease such expropriation.

The committee is due to conclude its work on Thursday and it is likely that the matter will be put to vote. With the ANC enjoying a majority in the committee and having secured the support of the EFF and the UDM on the issue, the vote will just be a formality. The three parties have made it clear that a constitutional amendment is needed to address the skewed land ownership patterns dating back to the colonial and apartheid eras.

The parties opposed to an amendment — the DA, COPE, IFP, Freedom Front Plus, and ACDP — have all said the review committee’s work thus far has been characterised by several procedural flaws.

In the main, they question the manner in which written submissions were handled, and the fact that former president Kgalema Motlanthe’s high-level panel report was largely ignored.  In November, Motlanthe tabled a review of key legislation in parliament. His high-level panel proposed that, instead of amending the constitution, the government use its expropriation powers currently available more boldly.

Motlanthe’s panel also found that a lack of leadership and policy direction, corruption and inadequate budget were to blame for SA’s failed land reform. The budget for land reform is less than 0.4% of the national budget. Of this, less than 0.1% is set aside for land redistribution.

According to the constitutional review committee’s draft report, there was overwhelming support in the public/oral hearings for a constitutional amendment on expropriation of land without compensation.

However, in terms of the written submissions, the report indicates that 65% of valid submissions were opposed to changing the constitution, while 34% were in favour of  its amendment. About 450,000 valid written submissions were received, yet only about 400 were analysed.

Quality vs quantity

The EFF has argued that the numbers of written submissions opposing the amendment would not be a factor when MPs draft the final recommendations as “this is not a referendum, but about the quality of submissions”.

ACDP MP Steve Swart said the committee clearly did not consider written submissions, which means it had failed to fulfil its constitutional obligation. The DA suggested that the amendment would not pass constitutional muster.

Freedom Front Plus MP Corné Mulder said, “The South African public and the international community should take note that the process was a charade and therefore fundamentally flawed. The decision to amend section 25 was already taken by the national executive committee (NEC) of the ANC and announced by President [Cyril] Ramaphosa on July 31 2018.”

The IRR said on Wednesday that it is briefing lawyers in preparation for taking the “procedurally flawed work of parliament’s constitutional review committee on judicial review.  The committee has a constitutional obligation to hear and heed what South Africans have said on the [expropriation without compensation] issue. The IRR is determined to ensure that it fulfils this obligation.

“The hundreds of thousands of submissions, which people took the trouble to send in, must be fully taken into account, not effectively relegated to the rubbish bin, as the committee currently seems intent on doing.”

phakathib@businesslive.co.za