Land reform gaining ground
There is a move in the ANC away from constitutional amendment and towards strengthening legislation — and using existing legal provisions — to ensure equitable land reform
As the land debate rages, parliament has this week kicked off a process through which to gain insight into the views of ordinary citizens from across the country on land expropriation without compensation.
Land justice has been at the centre of SA’s political debate since the ANC in February supported an EFF motion in parliament to expropriate land without compensation — a resolution the governing party had also taken at its national conference in December.
The ANC’s amendment to the EFF resolution is the process that will now get under way, led by parliament’s constitutional review committee. At the heart of the work to be undertaken is the all-important decision over whether section 25 of the constitution should be amended — or whether it needs to be amended — to allow for land expropriation without compensation.
While the constitution has been amended on a number of occasions, experts say the bill of rights has not; any amendment to section 25 would constitute the first such change.
Retired constitutional court justices Dikgang Moseneke and Albie Sachs have argued that the constitution in its current form already allows for land expropriation without compensation. This was also the finding of a high-level panel, headed by former president Kgalema Motlanthe, which was set up to assess key legislation.
In its report, released in November, the panel found that "government has not used the powers it already has to expropriate land for land reform purposes effectively, nor used the provisions in the constitution that allow compensation to be below market value in particular circumstances.
"Rather than recommend that the constitution be changed, the panel recommends that government should use its expropriation powers more boldly, in ways that test the meaning of the compensation provisions in section 25 (3), particularly in relation to land that is unutilised or underutilised."
A similar view is emerging from within the ANC. A proposal to that effect has already been passed through the party’s economic transformation subcommittee and submitted to its national working committee, as well as its national executive committee.
Deputy public works minister Jeremy Cronin is part of a task team established last month by President Cyril Ramaphosa to clear up confusion over the ANC’s stance in relation to the EFF motion. The task team also includes advocate Tembeka Ngcukaitobi, author of The Land is Ours, who is considered an expert on land justice.
Cronin told a forum on land, heritage and human rights last week that many inside the ANC are tending towards the view that, rather than amending the constitution, further legislation should be put in place to strengthen the state’s hand to effect equitable land reform.
What it means:
The constitution allows for expropriation in the public interest; its ‘limitation clause’ can be used to justify a lack of compensation
Cronin — along with many legal experts and the former constitutional court justices — argued that section 25 allows for expropriation for public purposes and in the public interest. There is also an overarching "limitation clause" in the bill of rights that can be used to justify the withholding of compensation.
The proposal, gaining support in the ANC, is to pass legislation that allows the state to withhold compensation in certain circumstances, says Cronin in an interview with the Financial Mail. These include cases where land is unoccupied or not put to productive or social use, and where buildings are unoccupied.
But this view differs from that of the EFF and of a large faction within the ANC.
The EFF’s position is that "all land" — used and unused, productive and unproductive — is to be expropriated, making the state the custodian.
In contrast, Cronin tells the Financial Mail: "Why not focus immediately on unused and unproductive land — especially prioritising well-located land that can be used for food security, promoting new productive farmers, or for the purposes of transforming apartheid spatial settlement patterns in all of our towns and cities."
He also argues that the EFF’s land argument is focused on the actual "ground".
"Malema has told white farmers that the EFF’s ‘without compensation’ demand only relates to the land, meaning the ground. In cases of expropriation, he assured them they will be compensated for any buildings and other improvements. So compensation returns by sleight of hand."
There is likely to be a pushback from within the ANC to the view put forward by Cronin and others in the party. The faction aligned to former president Jacob Zuma pushed strongly for the ANC to resolve the matter at its December conference and won — partly.
There have been rumblings from this group, which still makes up a large section of the party’s leadership structures, that Ramaphosa has not articulated the resolutions correctly and that the land reform decisions taken by the party are being "watered down".
However, the party’s final resolutions, released last week, show that Ramaphosa has been consistent with the party position.
"Expropriation of land without compensation should be among the key mechanisms available to government to give effect to land reform and redistribution," the resolution says.
"In determining the mechanisms of implementation, we must ensure that we do not undermine future investment in the economy, or damage agricultural production and food security. Furthermore, our interventions must not cause harm to other sectors of the economy.
"The ANC’s approach to land reform must be based on three elements: increased security of tenure, land restitution and land redistribution. Concrete interventions are required to improve the functioning of all three elements of land reform."
The resolution also moots a land tax and is clear that land reform should not be undertaken chaotically. "The accelerated programme of land reform must be done in an orderly manner," it says. "Strong action must be taken against those who occupy land unlawfully."
While land grabs in SA are not new, there has been renewed interest in land occupation since parliament passed the EFF’s motion — and there is a perception that there has been a spike in land grabs since then.
This year there have been reports of land grabs in areas such as Olievenhoutbosch in Tshwane, Kanana Park in the south of Johannesburg, Blue Hills in Midrand, Orange Farm Extension 10 and, most recently, Zwelihle, in the Western Cape town of Hermanus.
But data released by the City of Tshwane, for example, shows that between January and October 2017 the city attended to 4,406 land invasions across the metro. So this is not a new phenomenon.
After the land grabs in Olievenhoutbosch last month, private landowners headed to the Pretoria high court in a bid to force the police to take action before structures could be erected on their land.
The applicants argued that it is the police’s constitutional duty to protect them. Another issue they raised was that the land invasions should be stopped before they are classified as illegal land occupation. Different legislation — the Prevention of Eviction from & Unlawful Occupation of Land Act — applies if structures are erected and occupied, and this could lead to years of expensive legal battles.
Judgment is expected to be handed down on Friday.
Last month violent protests broke out in Zwelihle, where at least 25 people were arrested after marking out plots on vacant land. The Red Ants were sent in to dismantle illegal structures and evict people who were occupying the land illegally.
According to reports, about 200 people protested outside the municipal offices‚ vowing that they would not be evicted. Properties were also damaged, including a library and satellite police station, and schools were forced to close because of the unrest.
Malema has told white farmers that the EFF’s ‘without compensation’ demand relates only to the land ... they will be compensated for buildings and other improvements. So compensation returns by sleight of handJeremy Cronin
Rural development & land affairs minister Maite Nkoana-Mashabane further deepened the panic over land reform when she told the land forum that she would not wait for the constitutional review committee to conclude its work, but would proceed with a test case in land expropriation without compensation.
Last Wednesday, AfriBusiness, the business wing of AfriForum, said it would provide free legal aid to the first of its members to become "victims of expropriation without compensation" due to an amendment to the constitution.
But ANC MP Mathole Motshekga, who is on the parliamentary review committee, told the land forum that amendment of section 25 of the constitution is not a foregone conclusion of the parliamentary process under way. He said Nkoana-Mashabane simply meant she would use the constitution in its current form to expropriate land without compensation.
Motshekga tells the Financial Mail that when the committee crisscrosses the country in the coming weeks, it wants to hear the views of ordinary South Africans on whether or not to amend the constitution. However, it will also welcome input from, for instance, legal and agricultural experts, as well as the former justices, who are of the opinion that just and equitable land reform can be achieved without amending the constitution.
The committee will then put together a report, which will be submitted to parliament by August.