By Lloyd Phillips
January 28, 2020 1:12 pm
Land reform experts are calling on the ANC to urgently clarify its recent surprise announcement that it intends to push for expropriation without compensation (EWC) decisions to vest with the South African President and Cabinet instead of the courts.
The announcement was recently made by Dr Mathole Motshekga, chairperson of the Parliamentary Ad Hoc Committee on Amending the Constitution, during a televised interview with eNCA.
During this interview, Motshekga said the ANC was asking all South Africa’s political parties and citizens to support its move to have EWC decisions taken away from the courts and given to the country’s executive.
“We have the experience that the court processes are arduous; they take time; they require resources. The executive is a democratic government elected by the people of South Africa. [The executive represents] the people of South Africa and they must govern,” Motshekga said during the interview.
He added that the ANC was not proposing that the courts have no involvement whatsoever in EWC decisions, but rather that the courts be used as a final resort if one or more parties were aggrieved by an EWC-related decision of South Africa’s executive.
Dr Farai Mtero, a land reform expert at the University of the Western Cape’s Programme for Land and Agrarian Studies (PLAAS), said that “it would have helped if this [announcement] was explained in more detail instead of a terse statement on such an important national issue”.
While Mtero said that whatever failures there have been in South Africa’s land reform programme to date were not the fault of the country’s courts, he added that government, even during apartheid, had always played a large role in acquiring land through expropriation.
“Constitutionally, we cannot do away with the courts. The moment we talk about expropriation of land, the state has a role, but so do the courts. A person’s recourse to the courts is a key requirement and the courts must be allowed to play this role,” Mtero said.
Annelize Crosby, Agri SA’s policy head for land affairs, called on the ANC to “clarify exactly what it’s intending” because, according to Crosby, Motshekga’s announcement had caused widespread confusion and concern among many people and organisations.
She also wanted to know why the ANC was seemingly proposing a change to the South African Constitution that could potentially result in “a very serious infringement on property rights”, and also “infringe on people’s right to access to the court”.
“The Bill of Rights is there to protect individuals from state interference. If the intention is to oust full access to the courts, the proposed change to the Constitution would be very concerning indeed. The mandate of the ad hoc committee is limited to ‘making explicit what is implicit’, namely that nil compensation may be possible under certain circumstances.
“Meddling with the court’s power to decide compensation falls outside that mandate and any attempt to amend that would require the process to be restarted,” said Crosby.