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Land expropriation without compensation: What you need to know

News 24
2018-02-28 20:31
Jan Gerber

Land expropriation: a case of basic human right
Cape Town – Land expropriation without compensation is not a done deal.
For now, the ball is in the court of Parliament’s Constitutional Review Committee, which will consider whether to amend the Constitution to allow expropriation of land without compensation and how it will be done.
This, after the National Assembly adopted EFF leader Julius Malema’s motion in this regard on Tuesday.
The original motion called for the establishment of an ad hoc committee to review and amend section 25 of the Constitution to make it possible for the state to expropriate land in the public interest, without compensation.
The ANC proposed an amendment to the motion, which was adopted, that the Constitutional Review Committee “undertake a process of consultation to determine the modalities of the governing party resolution”.
The resolution it refers to was taken at the ANC’s conference in Johannesburg in December, to allow expropriation of land without compensation, subject to a feasibility study, to ensure that food security and the economy were not threatened.
“[The] conference resolved that the ANC should, as a matter of policy, pursue expropriation of land without compensation. This should be pursued without destabilising the agricultural sector, without endangering food security in our country and without undermining economic growth and job creation,” the ANC’s conference declaration reads.
President Cyril Ramaphosa also said on several occasions that expropriation without compensation will be explored to ensure that it does not undermine economic growth and food security.

The Constitutional Review Committee
The committee comprises members of the National Assembly and the National Council of Provinces. ANC MPs Lewis Nzimade and Vincent Smith are the co-chairpersons. Among the 22 members of the committee are the ANC’s Mathole Motshekga and Francois Beukman (who both served on the ad hoc committees on Nkandla), the DA’s James Selfe and Glynnis Breytenbach and the EFF’s Floyd Shivambu.
This committee deals with proposals to amend the Constitution, which can be submitted by the public. They will have hearings where members of the public, civil society and parties can present their proposals.
The National Assembly gave the committee a deadline of 30 August to report back on its work.
If the committee decides to indeed amend the Constitution, it will have to draft the amendment.

What is to be considered for the amendment?
Section 25 of the Constitution deals with property and is often called the “property clause”.
In its current form, it states that “no law may permit arbitrary deprivation of property” and that “[property] may be expropriated only in terms of law of general application (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court”.
Section 25 also says the “state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”.

Parties’ policy on expropriation
Since its inception, the EFF agitated for expropriation without compensation.
“The state should, through its legislative capacity transfer all land to the state, which will administer and use land for sustainable-development purposes. This transfer should happen without compensation, and should apply to all South Africans, black and white,” reads the EFF’s policy on its website.
Thus, if the EFF’s policy is adopted, all land will belong to the state.
After Tuesday’s debate on the motion, Malema said this does not mean people will lose their homes, factories or industries.
The ANC’s policy on what will happen after the land is expropriated without compensation is less clear.
Given the caveats that it should not harm economic growth and food security, and Ramaphosa’s utterances that it should be used as a way to kick-start an “agricultural revolution”, it seems the ANC’s policy will not entail expropriating all land and transferring it to the state, but rather focus on specific pieces of land that will be used for land reform projects.
Other parties who supported the expropriation without compensation principle are the IFP, UDM, NFP, Agang, AIC and APC.
The DA does not support it, even though it says it “is fully committed to redressing the history of violent land dispossession in South Africa, and the social and economic legacy of this dispossession which still exists in our country today”.
“The DA will defend the Constitution and show that expropriation without compensation is not the solution to assisting the poor and marginalised in accessing land and economic opportunities,” DA MP and spokesperson on rural development and land reform Thandeka Mbabama said in a statement released on Wednesday.
“We believe it is possible to achieve the aims of land reform and to do so in a way that truly empowers black people and strengthens the economy. We reject the opportunism of launching an attack on the Constitution to deflect from the failures of the ANC-led government.”
Other parties opposing expropriation without compensation are Cope, the ACDP and the Freedom Front Plus.

How to change the Constitution
To amend the Constitution, two-thirds of the National Assembly must vote for a proposed amendment and, in the National Council of Provinces, six of the nine provinces must be for the proposed amendment.
This means 267 of the National Assembly’s members must vote for the proposed amendment. The ANC currently has 249 MPs and the EFF 25.
The EFF has repeatedly promised to vote for an amendment that would allow expropriation without compensation.
This means that there will be enough votes to amend the Constitution if all ANC and EFF MPs vote according to party lines.