No need to change constitution for land expropriation, says think-tank
The government is trying to use the constitution as a convenient excuse for its lack of progress on land reform, liberal think-tank the Helen Suzman Foundation says.
There are fears the land expropriation without compensation drive could rattle investors and hurt SA’s already struggling economy.
On Thursday, the parliamentary committee tasked with redrafting section 25, or the property clause, to make it clear that expropriation without compensation can be used as a legitimate tool to address skewed land ownership patterns dating back to the apartheid and colonial eras, agreed to extend the deadline for public comment to the end of February.
This follows pressure from various lobby groups who called for the comment period to be extended because the festive period made it difficult for most individuals and organisations to table detailed submissions on the contentious proposed legislation. The initial deadline was on January 31.
In its written submission to parliament’s ad hoc committee, the Helen Suzman Foundation said the constitution does not need to be changed.
The foundation’s view echoes those of several groups opposed to the amendment, as well as that of the high-level panel on assessment of legislation and acceleration of fundamental change‚ headed by former president Kgalema Motlanthe‚ which stated that the existing constitutional framework is not an obstacle to sustainable land reform.
In 2018, 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 underutilised land.
The panel found that a lack of leadership and policy direction‚ corruption and an inadequate budget were to blame for the country’s failed land reform. The budget for land reform is less than 0.4% of the national budget‚ with less than 0.1% set aside for land redistribution.
The Helen Suzman Foundation said instead of considering a change to the constitution, the ad hoc committee should look at the establishment of a clearly defined overall legislative and regulatory framework, together with an adequately resourced and financed administrative structure.
“Such a framework would enable land reform to be implemented in an efficient and transparent manner, which would exclude arbitrary and corrupt practices. It would be able to focus on the needs of the poorest in South African society, who should be the major beneficiaries under any land reform policy,” the organisation said.
“Our view remains that section 25 of the constitution already makes provision for expropriation without compensation. This is confirmed by the wording of the preamble to the bill, which states that what is implicit in section 25 must now be made explicit,” the Helen Suzman Foundation said.
It said as a result, “we do not see why it is necessary to make the envisaged change to the bill of rights, which has a fundamental status in the constitution, even if the proposed changes are to be limited to land reform and subject to judicial approval”.
“It is desirable that the constitution, which establishes the basis upon which all other laws rest, should remain stable. This is particularly so in the case of the bill of rights.
“It should only be amended where there is a pressing need that cannot be resolved through ordinary legislation. This is reflected in the requirement that a supermajority be obtained in parliament in order for a constitutional amendment to be passed. For these reasons, we are of the opinion that the proposed amendment should be withdrawn,” the foundation said.
The Banking Association SA (Basa), which represents registered banks in the country, previously said that while it is necessary for the country to deal with land reform, it has to be done without discouraging investment.
Yet the ANC is now proposing shifting arbitration powers from the courts to the executive in terms of possible compensation to be paid.