ANTHEA JEFFERY: Land Court Bill severely undermines the rule of law

The Constitutional Amendment Bill aimed at changing Section 25 (the property clause) to authorise expropriation without compensation was abandoned by the ANC in December, when the necessary parliamentary majority proved unattainable. However, the governing party’s objectives in that regard continue.

As President Cyril Ramaphosa announced in January, the ANC remains committed to expropriation without compensation and will now pursue this by “finalising legislation such as the Expropriation Bill and the Land Court Bill”. The Expropriation Bill of 2020 is before parliament, while the portfolio committee on justice and correctional services held oral hearings on the Land Court Bill two weeks ago.

According to justice minister Ronald Lamola in an April 2021 briefing to the ad hoc committee earlier charged with amending Section 25, the Land Court Bill is a “game-changer” in facilitating expropriation without compensation. Both the pending Expropriation Bill and the Constitution give the courts the task of deciding on the “just and equitable” compensation payable on expropriation. However, the ANC has long disliked the notion of independent courts taking time to weigh all the facts before deciding what amount of compensation would be fair.

The EFF wants to circumvent this obstacle to speedy land nationalisation by deleting all references to compensation and the courts from Section 25. The ANC’s alternative proposal is more subtle. The governing party plans to use the Land Court Bill to establish a new specialised court that will oust the jurisdiction of the ordinary courts to decide on “nil” or other compensation. The new Land Court will also dispense with the normal rules of evidence and many established principles of procedural fairness.

The court will also empower partisan assessors to over-rule presiding judges in deciding all questions of fact (but not questions of law). Questions of fact will doubtless include the amount of compensation to be paid for expropriated land and whether this should be set at “nil”. Moreover, many of the assessors appointed to decide these vital issues are likely to be ANC cadres deployed to civil society and other organisations to help drive the expropriation without compensation agenda.

The Land Court will be able to refer land disputes to arbitration before arbitrators of its choosing. Parties who reject such arbitration will be vulnerable to punitive costs orders, as will their lawyers. Under the Land Court Bill, says Lamola, land disputes will be resolved with “ease and speed” — and in much the same way as labour ones are.

In the labour sphere, the Commission for Conciliation, Mediation & Arbitration (CCMA) has developed a panel of commissioners — “many from the ranks of the trade unions”, according to the minister — who can conciliate and/or arbitrate. Labour disputes which the CCMA lacks the jurisdiction to resolve go to the labour court and then to the Labour Appeal Court, which Lamola describes as the final court of appeal. Only if constitutional issues arise, he says, are these referred to the Constitutional Court.

The justice minister implies that the new land court system will be essentially the same. But this is not so. One major difference is that the labour court does not, in fact, have exclusive jurisdiction over labour disputes if these also raise alleged violations of the Bill of Rights. For disputes of this type, both the labour court and the High Court have “concurrent” jurisdiction. This is an important safeguard — but the Land Court Bill has no equivalent provision.

Under the Land Court Bill the high courts are instead to be barred from dealing with expropriation without compensation and other land disputes. Yet these will often involve alleged violations of fundamental rights — particularly the denial of the “just and equitable” compensation on expropriation guaranteed by Section 25.

In the labour sphere, the constitution has expressly been amended to bar the Supreme Court of Appeal (SCA) from hearing appeals dealing with labour disputes. (After changes made in 2012, Section 168 of the Constitution now bars the SCA from deciding appeals in “labour” matters, to the extent set out in legislation.) However, Section 168 has not yet been amended to bar the SCA from hearing appeals on land disputes, including expropriation without compensation ones. The Land Court Bill’s attempt to oust the SCA’s jurisdiction is thus inconsistent with Section 168 and is unconstitutional.

According to Lamola, the Land Court Bill is intended to “facilitate land justice”. Perversely, it aims to achieve this by speeding up the transfer of ever more land to the state and by confining ever more South Africans to revocable rights of “access”. But insecure “access” to land is no substitute for the secure ownership rights that millions already have and millions more would like to obtain.

In addition, the Land Court Bill cannot overcome the barriers to successful land reform. These have little to do with acquisition costs and stem rather from bureaucratic inefficiency, limited accountability, mounting corruption, and the ANC’s refusal to sanction ownership rights for land reform beneficiaries. If anything, the measure will open the way to even greater ineptitude and abuse by helping to shift more land from private to state ownership.

The Land Court Bill severely undermines the rule of law. This requires that disputes be resolved through the ordinary courts, not tribunals picked by  government to do its will. It also demands respect for property rights and the established rules of evidence and procedural fairness. This puts the bill directly in conflict with the founding provisions of the Constitution, which guarantee “the supremacy of the rule of law”. These provisions also declare that any legislation inconsistent with the constitution is “invalid”.

The Land Court Bill is so clearly in breach of various constitutional guarantees that parliament cannot lawfully adopt it. Its ideological premise — that private property rights are the problem and state ownership the solution — is also fatally flawed. The Land Court Bill should therefore be abandoned, not enacted into law.

Jeffery is head of policy research at the Institute of Race Relations.