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Tip-toeing through the South African legal minefield of land expropriation without compensation


Pam Saxby played a key support role in the National Peace Convention, Codesa and related political transition processes. Working for what recently became the Minerals Council SA, Saxby ran the minerals policy negotiation process, represented the industry in Nedlac’s development chamber, and reported on economic and labour policy discussions in what is now Business Unity SA. More recently, she monitored and reported on public policy for Legalbrief Today.

Go carefully when venturing into land ‘expropriation without compensation’ territory. You go where angels fear to tread. And be 100% sure you’ve got whatever you want to say absolutely right, or else! Careers are at stake, not to mention the country.

As a mere hack, one becomes used to attempts at sullying one’s reputation. And, eventually, one learns to turn the other cheek. Most of the time. But when several respected academics (and a public interest lawyer, nog al) accuse one of making an erroneous statement about the law-making process, something has to be done. Especially when that law-making process is about land expropriation with nil compensation. A veritable minefield, to put it mildly…

For the record, the statement appeared in a teaser to an Opinionista piece about the Constitution Eighteenth Amendment Bill and the Expropriation Bill. It was added by Daily Maverick — with whom this mere hack has no quarrel, incidentally. Absolutely none. As at least one of the respected academics knows only too well (Daily Maverick having published several of her articles over the years), an editor reserves the right to do what editors do. In this case, an editor altered the heading and asked a question.

So? The opinion piece lists irrefutable facts, bullet point by glaring bullet point. They do not include “asking if Parliament is putting the cart before the horse by trying to finalise the Expropriation Bill before finalising the constitutional amendment process”. The opinion piece quotes a media statement issued by the National Assembly ad hoc committee responsible for drafting proposed amendments to section 25 of the Constitution. At the time, the statement expressed concern that running parallel oral submission processes on the two bills might be “putting the cart before the horse”.

In its closing paragraphs, the opinion piece asks three questions:

  • What will become of the Expropriation Bill if the Constitution Eighteenth Amendment Bill isn’t passed?
  • What will become of the hopes and dreams of people whose expectations of imminent access to land were raised during all the provincial public hearings? 
  • What will happen if the Constitution Eighteenth Amendment Bill isn’t passed by the National Assembly?

The first question asks about the fate of the Expropriation Bill if the Constitution Eighteenth Amendment Bill isn’t passed. After all, its contents are much the same as a ‘D’ version of the 2015 Bill, which was:

  • Passed by Parliament in 2016;
  • Remitted the following year because of then-President Jacob Zuma’s reservations about its public participation process;
  • Withdrawn in the light of a National Assembly decision to prepare legislation amending section 25 of the Constitution to provide for land expropriation for nil compensation when just and equitable;
  • Revised to include a sub-clause giving practical effect to yet-to-be-finalised draft Constitution section 25 amendments; and
  • Tabled in October last year.

Should the Constitution Eighteenth Amendment Bill not be passed, the fate of the Expropriation Bill lies not in the hands of academics or lobby groups, but in the hands of the majority party in Parliament. That, too, is a fact. So, with respect to the academics (and the public interest lawyer) who challenged the opinion piece, they are in no position to attempt to answer the question. They may, can and probably will speculate. But they do not know.

The second question asks about the consequences of unfulfilled expectations. Which will become an issue whether the Constitution Eighteenth Amendment Bill is passed or not. With respect to the academics (and the public interest lawyer), they don’t know what will happen; the lobby groups don’t know; privileged South Africans living in suburban bliss don’t know; people with large tracts of unused land don’t know; and Parliament doesn’t know. This may be why some of us are having sleepless nights. Because we have all been warned.

During one of his final appearances as a member of the ad hoc committee responsible for preparing the Bill, EFF Deputy President Floyd Shivambu upset a great many people by saying that what happened during July’s widespread social unrest will “look like a picnic” if the ANC continues to ignore his party’s proposals for land reform. Which it has. But the ruling party is also concerned.

Towards the end of May, in his capacity as committee chair, ANC MP and National Executive Committee member Mathole Motshekga said that “failure… to produce a satisfactory report” on the bill’s public participation process would be “tantamount to planting a time bomb in one’s own house, bringing the whole house down”. A few days later — in the context of spiralling land invasions and their associated “conflict” — he remarked that, should the process of finalising the bill be perceived to “drag on” unnecessarily “we may lose control over the people”.

Two weeks later, Shivambu observed that, since people “are already taking back the land”, this may be the only way forward if “the politicians can’t agree”. Which they don’t.

So, Motshekga and Shivambu have already answered the opinion piece’s third question, which was rhetorical — in case the academics (and the public interest lawyer, nog al) hadn’t noticed. DM


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