THULI MADONSELA: The wrong land debate
The public hearings on land expropriation do no-one any favours, presenting South Africans with a binary choice, when the issue is far more complex
Like many South Africans, and possibly the world, I have followed with deep interest the Constitutional Review Committee’s public hearings on land expropriation without compensation and the proposed amendment of section 25 of the constitution.
Though the platform has been great for giving people an opportunity to express their hopes, fears and concerns about the emotional issue of land, I remain convinced that this alone will not leave us any wiser on how to proceed.
It seems to me the problem lies partly in the framing of the question. People are simply answering the question as to whether they support expropriation without compensation and the amendment of section 25 to allow it. There are no nuanced questions.
Responses are also racially split: the majority of black people say yes and white people say no. Supporters argue that the current process of restitution and redistribution has been slow and that land was stolen, so it must be handed back to its rightful owners without compensation. Key imperatives, apparently, are speed, cost and justice. Those who own land argue that expropriating without compensation would be unjust and would undermine social cohesion.
One thing for sure is that to anchor democracy through peace and stability, social justice is a must
Missing, or muted, is the fact that the current constitutional provisions have never been fully implemented. Specifically, section 25(8) of the constitution permits expropriation with and without compensation — yet it has never been tried. Equally, nothing has stopped government from enacting legislation that regulates expropriation for restorative and redistributive purposes. And the new Land Expropriation Act, which replaced the anachronistic 1975 act to regulate expropriation, is currently "being consulted on" after President Jacob Zuma referred it back to the National Council of Provinces for further consultation. So, 24 years into democracy, the furthest that bill has gone is to simply reach the president.
The predominant narrative, also missing in this debate, is the truth that not all land was stolen. Some land was sold by traditional leaders before 1913 and some was given as a gift to settlers. Other complicating factors, which haven’t been ventilated, include the fact that some of the land is no longer with the original people it was given to after 1913, or even before.
Rights of third parties
Arguments by the EFF and ANC at the June 16 Thuma Foundation Democracy Dialogue on Land Rights & the Constitution muddy the issue further. I understood them as arguing that the rights of third parties who have bought land legally, even after democracy, will be ignored and expropriation without compensation pursued if the land was originally stolen. But I’m certain this does not reflect the ANC’s view, expressed by President Cyril Ramaphosa.
During our recent panel discussion at Stellenbosch University, the ANC’s head of economic policy, Enoch Godongwana, said the land likely to be targeted would be abandoned and unused land. The process would also be guided by the limitations imposed in December’s ANC elective conference, which includes ensuring that neither food security, the economy nor investment are disrupted.
I made a submission on land to parliament on May 31, in which I said that even unused land is not the low-hanging fruit some think it is. After all, that land is still subject to the right not to be arbitrarily deprived of one’s property. So while it would be easier to satisfy the section 36 constitutional limitations and expropriate land, to do so without paying compensation might be a bridge too far.
Even if land is not used, it may still be someone’s legal asset. And it may be the subject of a bank loan. There’s also the matter of compliance with global legal requirements, such as the African Charter on Human & People’s Rights, the Universal Declaration on Human Rights and the UN Convention on Civil & Political Rights.
It would also be naive not to expect long court battles. No-one is likely to allow their land to be expropriated in this way without a fight. So the low-hanging fruit may end up being a mirage. Unused and abandoned land will also not be enough to satisfy the hunger for land, and to redress the racial and gender structural inequality of land distribution.
So where does this leave us? One thing for sure is that to anchor democracy through peace and stability, social justice is a must. So the speed of restitution must be accelerated exponentially. People are tired of waiting. Nor is the delay good for those who own or wish to buy land, as the uncertainty poses a risk.
Recently, I engaged farmers in Upington, and it was clear many had adopted a wait-and-see attitude before they recapitalise their farms — this is a real threat to food security.
What then are our options? In my parliamentary submission, I suggest we try negotiation and mediation. This country’s new deal, which has put us on a pedestal of hope, was built on negotiation. Why don’t we try that?