South Africa


Politics in the time of expropriation without compensation

A cotton picker releases a roll of cotton onto the cotton farm fields at Marble Hall, Limpopo on 18 June 2019. (Photo: Ayanda Mthethwa).

A draft Constitutional Amendment Bill to expressly allow expropriation without compensation will be published next week, ahead of public comments. That was the conclusion of a meandering committee meeting — and the next step in a path that started 22 months ago amid roiling electioneering.

Given how the EFF drove compensationless expropriation of land for some 15 months ahead of the May 2019 elections — “Our land and jobs, now” was their campaign slogan — their absence at committee was glaring on Thursday.

To recap, the push for compensationless expropriation started in late February 2018 from a motion EFF leader Julius Malema brought. The ANC, fresh from its 2017 Nasrec conference that had adopted land expropriation without compensation at the last minute, decided to support it — with some amendments, including ditching total state ownership.

A year earlier, the governing ANC sharply dismissed a similar EFF motion, saying it was “not going be told what to do” and, in any case, expropriation without compensation was unconstitutional.

But then, that’s politics.

The upshot of this historical agreement across the floor of the National Assembly was an unprecedented public participation process, including public hearings at 34 venues across South Africa including dorpies, cities and townships with compensationless expropriation emerging as shorthand for socio-economic justice.

In November 2018, the ad hoc constitutional review committee agreed Section 25 of the Constitution, dubbed the property clause, must be amended to make explicit that land expropriation without any compensation was possible. It came to a vote in the National Assembly on 5 December 2018, which carried the decision by 209 votes for, 91 against.

Then it was the year-end recess and, while the constitutional amendment was picked up by a newly formed committee in early 2019, the May 2019 elections intervened. And only in July 2019 was the constitutional amendment process by committee revived.

Thursday’s meeting of the ad hoc committee to initiate and introduce legislation amending Section 25 of the Constitution met to discuss what will be the 18th constitutional amendment.

It was a two-hour roundabout discussion with many “meandos”.

At one stage the meeting seemed to veer into letting the parliamentary legal advisers simply update a draft law presented to MPs on Tuesday with political proposals delivered on Thursday and publish it in the Government Gazette — without MPs having a final say on the final draft legislation.

Freedom Front Plus MP Corne Mulder jumped in, saying such a move was “unheard of” and “a first”, while DA MP Glynnis Breytenbach simply said: “You can’t gazette something without me having seen it”.

Committee chairperson Mathole Motshekga eventually clarified he had meant the parliamentary legal adviser would update Tuesday’s Bill for MPs there and then, and the updated Bill would then be agreed to, gazetted, and with a parliamentary advert calling for public comments between 2 and 31 January 2020.

There was a 10-minute comfort break. And some caucusing.

Afterwards, Mulder got to propose that the original Tuesday bill should be gazetted for public comment, with the input, including from political parties, considered at that stage of the legislative pipeline.

It was something everyone could live with.

Earlier, the party political proposals for amendments to Tuesday’s version of the bill had more than ruffled feathers.

When Breytenbach proposed a list of specific categories of land for expropriation without compensation — including land owned by the state and state-owned entities (SOEs), abandoned land or that held for speculation and land occupied by labour tenants — IFP MP Inkosi Mzamo Buthelezi took exception to the inclusion of communal land.

The IFP has pledged to protect communal land governed by traditional leaders and traditional councils, largely because of the Ingonyama Trust that owns large swathes of KwaZulu-Natal and of which Zulu King Goodwill Zwelithini is the sole trustee.

The DA’s push to have categories of land included in the amended Section 25 in the Bill of Rights of the Constitution is key: amending such a list would require at least a two-thirds majority, or a minimum of 267 of the 400 MPs and the agreement of six of the nine provinces in the National Council of Provinces (NCOP).

Currently, the bill simply adds a subsection to say national legislation would set out specific circumstances where a court may determine nil compensation. Of course, a law like that would only need a simple majority to be amended.

That party political interests are deeply enmeshed in the land expropriation without compensation constitutional amendment also emerged in the ANC proposals.

It wanted to amend Section 25(7) that links restitution claims to the 1913 Natives Land Act to be amended to allow for an exception for claims before 19 June 1913 when black South Africans were dispossessed. Or as the ANC amendment read:

That redistribution, including a pending redistribution bill, as well as a legal formulation that allows exception to 19 June 1913 cut-off date be pursued.”

This appears to be an effort to bring into the restitution fold communities such as the KhoiSan who would have lost land well before 1913, and to whom undertakings have been made for the past decade or so.

But on Thursday, opposition parties argued the governing ANC was bringing additional amendments through the back door.

So the Boer republics are back on the table,” said Mulder.

But as everyone on the committee agreed, in the interest of the process and time, that it would be Tuesday’s version of the bill which would be gazetted for public comment, all was back on track.

It’s a narrowly phrased draft constitutional amendment bill that introduces into Section 25(2) the possibility that “where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil”. In Section 25(3), the bill adds an “any” so the section would read: “… the time and manner of any payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected having regard to all relevant circumstances…”

Thursday’s committee decision to publish the draft constitutional amendment Bill ahead of public comments from 2 to 31 January 2020 is the next phase of a tight programme.

There will be public hearings in mid-February and other inputs from researchers and legal services before MPs deliberate in various meetings throughout March. By 20 March the Bill should be adopted by the committee, a report agreed to and tabled in the National Assembly for a vote.

If agreed, the legislative process in the National Council of Provinces (NCOP) must begin.

Even as all eyes are on this finishing line at the end of March for the National Assembly, there are pitfalls. A constitutional amendment of Section 25 is not the be-all and end-all as national legislation is required to give effect to the constitutional stipulations.

A contemplated redistribution bill to overhaul the current regimen that has been sharply criticised as inadequate and problematic, has not yet surfaced anywhere in government.

And fundamental to any expropriation with, or without, compensation is constitutionally compliant expropriation legislation. Over the past 12 years, three attempts have been made to bring such a law, but each attempt was abandoned. Most recently, the Expropriation Bill was withdrawn in August 2018 by the parliamentary public works committee, pending the outcome of the Section 25 constitutional review and amendment process.

That expropriation legislation has not yet been re-tabled in Parliament. But without such an expropriation law, a constitutional amendment to expressly allow compensationless expropriation may mean little — beyond party politicking and electioneering. DM


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