Picture: SUPPLIED
Picture: SUPPLIED

Parliament’s joint constitutional review committee formally resolved on Thursday to recommend the amendment of section 25 of the constitution to allow for expropriation of land without compensation.

It recommended that it be made explicit that this is one of the means that can be used to address the skewed land ownership patterns dating back to the colonial and apartheid eras.

Despite strong objections by various opposition parties, who have indicated that they will launch a legal challenge to block the amendment, the ANC, supported by the EFF (the third-largest party in Parliament) and UDM used its majority in the committee to push through the contentious recommendation.

A total of 12 MPs voted in favour of the motion to amend the constitution with four opposing it.

The committee’s final report and recommendations will now be tabled in the National Assembly for debate, before being forwarded to the National Council of Provinces (NCOP) for concurrence. Thereafter, another committee in parliament will  process the amendment bill. This will include the nuts and bolts of how the clause in question should be redrafted, as well as the precise wording.

The EFF wants this to be concluded before the elections in 2019.

The committee’s acting chair Stan Maila said it had tried as much as possible to accommodate all views in its report.

“It was clear during this process that there was total agreement, that there was a need for urgent and accelerated land reform in order to address the injustices of the past, which were inflicted on the majority of South Africans. The hunger for land among the dispossessed was clear,” said Maila.

Co-chair Lewis Nzimande said skewed land ownership patterns could only be addressed by amending section 25 of the constitution: “South Africans have spoken, loud and clear, and we listened to their cry,”

Other opposition parties strongly opposed to the amendment, and the Institute of Race Relations (IRR), have indicated that they are prepared to take legal steps to prevent the “procedurally flawed” amendment to section 25.

In November 2017, Motlanthe tabled a review of key legislation in parliament. His high-level panel proposed that, instead of amending the constitution, the government should use its expropriation powers more boldly

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 2017, Motlanthe tabled a review of key legislation in parliament. His high-level panel proposed that, instead of amending the constitution, the government should use its expropriation powers more boldly, in ways that test the provisions in section 25(3), particularly in relation to unutilised or under-utilised land.

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

According to the constitutional review committee’s 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. About 450,000 valid written submissions were received.

The EFF has argued that the numbers of written submissions opposing the amendment was never going to be a factor as “this is not a referendum, but about the quality of submissions”.

Written submissions not considered

ACDP MP Steve Swart said this week that the committee clearly did not consider written submissions, which means it had failed to fulfill its constitutional obligation.

The constitutional review committee was set up by parliament earlier in 2018 to help it decide whether there is a need to amend the constitution. This was after the ANC decided in December that constitutional amendments are necessary to address racially skewed land ownership patterns.

The push by the governing party and the opposition EFF to amend section 25, or the “property clause” has spooked investors amid growing negative sentiment towards emerging markets.

Some commentators have warned that wholesale expropriation without compensation will threaten food security and negatively affect economic activity and job creation as the country battles with high unemployment. President Cyril Ramaphosa and senior government officials insist that expropriation will be done in an orderly way that will not disrupt food security.

Ramaphosa announced in September that he had appointed the advisory panel to guide the inter-ministerial committee on land reform, chaired by his deputy, David Mabuza.

Ramaphosa said, the panel was mandated to review, research and suggest models for the government to implement a fair and equitable land-reform process that redresses injustices of the past, increases agricultural output, promotes economic growth, and protects food security.

phakathib@businesslive.co.za