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One step forward, two steps back: ANC’s proposal to amend section 25 of the Constitution

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Ektaa Deochand is an attorney in the land rights programme at the Legal Resources Centre.

After years of public hearings, multiple debates and several versions of the anticipated amendment to section 25 of the Constitution, the latest proposal by the ANC has left us with more questions than answers.

The purpose of the Expropriation Bill is purportedly to provide for the compensation of land where the amount of compensation may be nil, and to provide for “matters connected therewith”. These “connected matters” have inexplicably resulted in a proposal for “custodianship” of land, a concept which may be the antithesis of what is required for the achievement of equitable land reform.

The Legal Resources Centre has consistently maintained at various stages of the consultative process that an amendment to the Constitution is not required to give effect to the redistribution of land. Expropriation without compensation is currently possible under the ambit of section 25(3) of the Constitution. Despite this, the option to expropriate land in the public interest has been shockingly underutilised by the state. The enactment of the Expropriation Bill should be considered prior to the proposed constitutional amendment, as it would provide an avenue to articulate the clear circumstances under which compensation for expropriation may be nil. The draft bill does this reasonably well. 

But the expropriation debate cannot take place in isolation from the debate on land redistribution. There currently is no framework legislation to give effect to section 25(5) of the Constitution which requires the state to “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”. 

Instead, the amendment seeks to dilute the content of section 25(5) by the inclusion of the words “foster conditions which enable state custodianship of certain land in order for citizens to gain access to land”. 

There are other areas of law where the custodianship principle is applied, such as over water, mineral resources and environmentally protected areas. However, custodianship in relation to certain (or if the EFF is successful, all) land is something quite different. Land currently administered by the state has not benefited landless beneficiaries in need. Instead, SIU and other reports have revealed that many of the policies introduced to give effect to section 25(5) have been abused by public officials or favour the political elite. Former farmworker turned farmer, Mr Kapa, has been running a livestock and mielie farm outside Ugie in the Eastern Cape for the past 32 years. Despite years of promises of a lease agreement from the Department of Rural Development, this never transpired. In 2019, the department suddenly revealed that it had confused its own land with that of a private landowner. This “mix-up” resulted in the attempted eviction of Mr Kapa from his farm. This case could present a prime opportunity for the state to exercise expropriation without compensation for the purpose of land reform, but instead it drags its feet. 

Even where legislation exists to extend secure land rights such as in the case of labour tenants, the minister simply failed to process these applications. The Legal Resources Centre assisted thousands of labour tenants to legally compel the appointment of a special master to step into the shoes of the minister to fulfil her duties to facilitate access to land. 

One could argue that the custodianship principle is not unlike that of “trusteeship”, a concept inherited from our previous dispensation. The Native Trust and Land Act of 1936 was one of the leading causes of spatial injustice from our past and undermined the capacity of black persons to hold ownership of land in their own name. A reversion to custodianship/trust title would be an indictment on the constitutional gains made which reversed such discriminatory practices of land ownership. Three weeks ago, the high court highlighted the propensity for abuse where land is held under the Ingonyama Trust. The Legal Resources Centre succeeded in a case on behalf of rural women and other applicants to challenge the issuing of lease agreements which the Ingonyama Trust Board sought to introduce in KwaZulu-Natal and which would have undermined customary rights to secure tenure. 

Legislative amendment cannot substitute the failures of executive action. While the impetus on land reform is welcome, any amendments must be practically capable of advancing security of tenure for people on the ground who bear the brunt of poor policies and the failures of public administration. Meaningful land reform is possible within the construct of the current constitutional provisions, if there is a will to realise it. DM/MC

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  • Miles Japhet says:

    The ANC needs to explain why they are deviating from the objective of simply “making explicit what is implicit” This in no way opens a door for a widening of the remit to “custodianship” with all the socialist command and control disastrous consequences for the poor.

  • Louis Potgieter says:

    This column lacks an explanation of the politics that has driven the issue. In short, the ANC is trying to get the EFF’s support for a constitutional amendment (to outflank it). The EFF wants the state to own the land. The wording is an attempt at getting such support. Perhaps the time has come for the ANC to report back to its congregants that it is a bridge too far.

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