Kwanalu Land Desk: politics, policies, processes and probabilities

The last few years of policy, agriculture and politics have been overshadowed by the question of expropriation. The government, following the last internal ANC elective conference was mandated to change the constitution to allow for expropriation without compensation. The intervening years have been filled with drama, angst, politicking and in different spheres, strategy.

We find ourselves at the tail end of two processes affecting expropriation, firstly the “Expropriation Bill” which is an amendment of the expropriation act pre ’94.

The second is a change to Section 25 of the Constitution of South Africa in which the government is attempting to ‘make explicit that which is implicit in the constitution already’.  This process has been fraught with confusion, errors of process and general political posturing. As we stand in both processes, Kwanalu is strongly opposed to both the change of the act and the change of the constitution. The constitutional change is clearly the more major of the two, because any change to the act which is on not in line with our current constitution can be opposed and overturned in the constitutional court, however it is safe to say that should the objectives of political parties, specifically the allowance of expropriation with nil compensation (in circumstances where it is still judged as being just and equitable) were achieved by the act within the constraints of our current constitution, it may remove the political heat on the change to the constitution.

Within the proposed constitutional change at present the two major issues are:

• State custodianship of ‘some land’ – but it leaves this broad and undefined.
• Expropriation with nil compensation, and,
• A diluted role of the courts

Interestingly, the requirement of ‘just and equitable’ compensation has not been removed although the ‘award’ of such compensation being R nil can be, according to the proposed amendments, allocated by a legislated authority other than the courts.

Kwanalu has strongly opposed any change to the constitution and maintains that the current legislative environment is not the major impediment to successful land reform which has been cited as the reason for change, but rather the lack of skills and capacity within local, district, provincial and national departments the issue.

In terms of the process moving forward:

1. We have already experienced an increase in public discourse around expropriation, and as November elections loom, we expect this to increase. This discourse is dangerous from a perspective of incorrectly raising public expectations, but it is non-substantive in terms of the true direction of the policy decisions.
2. The work of the Ad-Hoc Committee has been completed, and the report has been completed and submitted to parliament, but,
3. The national assembly will only consider and debate this report after the upcoming local government elections.

It is unlikely as the proposed amendments stand that the majority party will have sufficient muscle to push the amendments through whilst other parties may or may not support the amendments. It appears that for now, the SA constitution is in relatively safe hands, however the major concern is what may happen in these coming elections, and what (if any) impact that this will have on what various parties will want to support.

Possibly a strong case in point would be for a ‘trial’ expropriation with nil compensation under the current legislation to test if nil compensation is truly already ‘implicit’ in the constitution. A successful expropriation with nil compensation would make irrelevant all the current constitutional process, while still retaining the securities of our law as it stands.