State must focus on redistribution in the land expropriation issue, lawyers say
Advocate Tembeka Ngcukaitobi also expressed the view that an amendment to Section 25 is not necessary — what is needed is the implementation
An amendment to the constitution did not seem to be necessary if the overriding aim was land redistribution, as this did not require the state to expropriate land, it was submitted in parliament on Friday.
Advocate Wim Trengove gave his views on the proposed amendment to section 25 of constitution at a meeting of the ad hoc committee, which was established by the National Assembly to make explicit the provision for expropriation without compensation.
The ad hoc committee was established on the basis of a recommendation to the National Assembly by a parliamentary committee, which conducted extensive public hearings around the country on the issue.
Advocate Tembeka Ngcukaitobi also expressed the view that an amendment of the constitution was not necessary, and that what was needed was implementation.
“The overconcentration on the compensation provision in the constitution ultimately diverts us from what needs to be done in relation to land reform as a whole. The conversation has to be shifted to the redistribution of land,” Ngcukaitobi told MPs.
The principles of land reform involved security of tenure, restitution and redistribution needed to be translated into practical reality.
“Restitution has not achieved land reform. It needs to be speeded up.”
Trengove said the Constitutional Court had ruled that expropriation only occurred when the state actually took possession of rights for itself. Restitution could take place by the direct transfer, for example, of land from the deprived land-owner to a community with the state not taking possession of the rights during this process.
He did not believe expropriation without compensation was necessary to achieve the overriding objective of bringing about land redistribution, which was necessary to address the racial imbalance in the ownership of land and deal with the injustices of colonialism and apartheid.
Parliament could legislate for direct redistribution, sidestepping the need for expropriation as well as the constitutional requirement for just and equitable compensation provided for in section 25 of the constitution in the event of expropriation.
“Merely to provide for expropriation without compensation in the constitution is not enough because it does not address the redistribution imperative,” Trengove said.
He also noted that section 25, like all constitutionally enshrined rights, was subject to limitation by a law passed by parliament. This gave the space to parliament to pass legislation limiting the rights to property outlined in section 25 for the sake of land redistribution, which was a far bigger project than restitution.
Such a law could stipulate that the ownership of all white-owned land will be presumed to be historically the result of privilege — and therefore liable for redistribution — unless the owner can prove otherwise.
Section 25 itself provided for a greater weighting to be given to redistribution as against the right to just and equitable compensation, and allowed for expropriation without compensation.
Trengove warned that any amendment to section 25 regarding expropriation should not have implications for a host of other rights such as the right to residential property, businesses, pensions, intellectual property and others.
Acting COO of the office of the valuer-general Thapelo Motsoengeng said making the constitutional provision for expropriation without compensation explicit would embolden the work of the valuer-general. It may be useful to explicitly define current use value of land in the constitution for the purpose of determining market value.
He noted the difficulty in gathering information about state support for land-owners, which was necessary in order to determine market value for the purposes of expropriation.