LETTER: Expropriation Act faces legal challenges

Back in 2014-2019, when the ANC and EFF between them had more than two-thirds of the seats in SA’s fractious fifth parliament, they could not agree on the nationalisation of land (favoured by the EFF) or expropriation without compensation (the ANC position) in their stuttering efforts to reform the government’s handling of the land question and property rights in SA. The fourth and fifth parliaments were unable to resolve the impasse and no remedial legislation was passed.

During the ANC elective conference in 2017 it was announced that: “The final conclusion that we agreed, the national executive committee will initiate some amendments in the constitution’s section 25 to achieve expropriation without compensation. For that to happen it must be sustainable, this means it must not impact on agricultural production, food security and other sectors of the economy.”

In 2018 the constitutional review committee of the National Assembly reported on the matter from a parliamentary perspective as follows: “Section 25 of the constitution must be amended to make explicit that which is implicit in the constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform, so as to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes.”

The contemplated amendment to the Bill of Rights has never seen the light of day; it requires at least a two-thirds majority if it only amends the Bill of Rights, but a 75% majority in parliament if it amends the rule of law. Internationally, protection of property rights is regarded as a rule of law issue. Both majorities were unattainable in the sixth parliament which, instead of attempting any constitutional amendment, chose to pass by a simple majority an ordinary act, the Expropriation Act, which the president recently signed into law without the buy-in of non-ANC members of his cabinet.

So much for accountability, both collectively and individually, to the seventh parliament, in which no party enjoys a majority. The constitutionality of this stunt, and that of  the new law itself, can be challenged by a third of the members of the National Assembly within 30 days of the assent to the act. It is legally questionable first to concede that a constitutional amendment is required to achieve a political aim and then to pass ordinary legislation to achieve that aim.

The form of expropriation without compensation envisaged in the disputed legislation is hedged with some safeguards against arbitrariness; confiscation is altogether more draconian in nature. The constitutionality, and the legal legitimacy of the “birth” of the new act, are highly questionable and are likely to be litigated in the public interest.

Paul Hoffman
Director, Accountability Now

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