By Gaye Davis & Babalo Ndenze for EWN
South Africa’s taken the first step towards legislating for the expropriation of land without compensation, but there is a long road ahead before it becomes law.
Parliament’s constitutional review committee has adopted its final report, which recommends that Section 25 of the Constitution, the property clause, be amended to make expropriation without compensation explicit.
The report is expected to come before the National Assembly for debate and adoption in two weeks’ time.
Parliament is expected to debate and adopt the committee’s report at the end of November, but that’s just the start of a lengthy process to amend the Constitution, which could also face legal challenges along the way.
A parliamentary committee will then have to draft and process what will be the 18th Constitution Amendment Bill.
That’ll involve a fresh round of public participation and comment.
Given some parties’ and civil society organisations’ opposition to amending the Constitution, legal challenges could delay the process.
Parliament’s schedule also makes it unlikely the bill will be voted on before next year’s elections.
A final hurdle is that any constitutional amendment that affects the Bill of Rights requires a much bigger than a normal majority to pass.
Constitutional review committee co-chairperson Stan Maila said: “If you want to change anything in Chapter 2 (which deals with the Bill of Rights, and is where Section 25 appears), then you need a two-thirds majority vote in the National Assembly and six (of the nine) provinces (backing it) in the National Council of Provinces.”
At the same time, the ANC has made it absolutely clear that there’s no chance of a constitutional amendment before next year’s elections, as stated in the committee’s adopted report.
The EFF, which voted with the ANC, has also called on the amendment to be finalised before the end of the current term.
Committee member Vincent Smith said: “What is very clear is that there will be no voting on the actual constitutional amendment before elections, I hope that clarifies it. There will be no voting on it, it’s just not practically possible.”
The ANC has also dismissed opposition accusations that the party and EFF are using land expropriation as an electioneering ploy.
“Is this a sham for electioneering purposes? It’s not, because people who understand know that the process of actually amending the Constitution is not going to happen until after the elections,” Smith added.
The party added that the adoption of this final report will bring about an end to policy uncertainty while also addressing historic wrongs.
The rand briefly broke below R14.00 to the US dollar following the news that Parliament’s portfolio committee on public works withdrew its expropriation bill on Tuesday.
The public works committee said in a short statement that it “officially resolved, in accordance with Joint Rule 208 (2), to reject (withdraw) the Expropriation Bill [B4D of 2015] so that it may be re-introduced at a later stage”. The bill is separate to the review of section 25 of the Constitution currently under way to make it possible for the state to expropriate land without compensation.
The rand, which immediately firmed to R13.95/$, returned to trade 0.06% firmer at R14.15 to the greenback by 17:13 in Johannesburg.
Important to note is that the expropriation bill existed before the latest processes on land expropriation and was referred back to Parliament by former president Jacob Zuma, who said consultation around the bill was inadequate.
Zuma returned the bill to parliament in 2017 due to inadequate public participation for the bill.
During its December conference, the ANC and its delegates agreed that expropriating land without compensation should be among mechanisms to effect land reform.
The condition was that expropriation should not undermine the economy, agricultural production and food security.
The constitutional review committee is due to report back to Parliament regarding its findings from the nationwide hearings on expropriation soon.
By Bekezela Pakathi for Business Day
British Prime Minister Theresa May has welcomed SA’s approach to land reform, saying the UK supported land reform that’s legal and transparent.
“The UK has, for some time now, supported land reform that is legal, transparent and follows a democratic process … it’s an issue I raised with President [Cyril] Ramaphosa when he was in London earlier this year. I will be talking about it with him later [on Tuesday] … but I welcome the comments he has already made about approaching land reform, bearing in mind the economic and social consequences … and that land reform will be no smash and grab,” May said at a business forum in Cape Town earlier on Tuesday.
Last week, US President Donald Trump posted a controversial tweet on SA’s push to expropriate land without compensation. “I have asked Secretary of State [Mike] Pompeo to closely study the South Africa land and farm seizures and expropriations and the large scale killing of farmers,” tweeted Trump. “South African Government is now seizing land from white farmers.”
Responding to questions on the matter and whether expropriation without compensation could hurt SA’s efforts to attract foreign investment, May reiterated that the UK supported land reform that is “legal and transparent”. She said SA and the broader African continent offered significant opportunities for investors.
“I think there are real opportunities for the future. I brought a significant business delegation with me across a wide range of business activities from financial services to agriculture. Obviously we look across Africa … they are looking to invest [but] want to ensure that countries have that stable aspect investors are always looking for,” May said.
The UK’s development aid would look at how “we can assist in bringing stability to those states that are fragile”, she said.
May was in SA as part of a three-nation visit to Africa in an effort to strengthen Britain’s economic relations with the continent, ahead of the UK’s exit from the EU In 2019. She is due to visit Nigeria and Kenya this week.
By Iavan Pijoos for News24
On Friday last week, lobby group AfriForum posted on its website that it had “obtained a list of farms identified” for expropriation. This can seen here.
It claimed it was being circulated within the rural development department.
AfriForum encouraged farmers to check if their farms were on the list and to contact the organisation so that they could “prepare for a joint legal strategy”.
Analysts at the Institute of Race Relations (IRR) believe that a list said to contain the names of farms that are to be targeted for land expropriation without compensation is “legitimate”.
“While we note the statement by the Department of Rural Development and Land Reform that ‘there is no truth to this document, the IRR, whose analysts have had sight of the list, has every reason to believe it is legitimate,” campaign manager Terence Corrigan said on Tuesday.
Corrigan said government had decided to start farm seizures before public comment and parliamentary processes were concluded.
“This is at odds – as the IRR has long warned – with assurances made by ruling party and government leaders that only unproductive land will be seized.
“The IRR has long cautioned that undermining property rights will have catastrophic economic and social ramifications,” Corrigan said.
List disputed by government
The department has disputed that a such a list exists.
Earlier this month, City Press reported that the ANC had identified 139 farms to be expropriated without compensation in the coming weeks, to test section 25 of the Constitution.
The list, shared by AfriForum, contained the names of 195 farms.
AfriForum deputy CEO Ernst Roets said the list came from a “confidential source”.
Farmers ‘worried’ about exposure
Agri SA president Dan Kriek said AfriForum’s publishing of this list was “grossly irresponsible” as it had itself acknowledged that its legitimacy was in doubt.
“They themselves don’t know if it’s valid or not,” Kriek said.
Speaking at a media briefing on Monday, Kriek said that two farmers whose farms were on the list had contacted him.
“By the way, some of those farmers were extremely agitated that they have now been exposed,” Kriek said.
He said the farmers were “extremely worried about the name of their farm [appearing] on a list”.
In 24 years, the ruling party has failed to adequately address the issues of land redistribution and expropriation. In an effort to right these wrongs, President Cyril Ramaphosa backed a motion tabled by the EFF that called for a constitutional amendment for land expropriation without compensation, even as the governing party’s amendments effectively watered down the original opposition motion.
However, the question of land reform is not one easily addressed.
“People are incredibly desperate to get a permanent place to stay and it comes with a history of requiring land,” says Lizette Lancaster from the Institute for Security Studies (ISS) in an article by News24.
She says the trend from 2013 to 2018 showed that at least 70 protests related to land invasion had turned violent.
The desperation felt by many is used as a political too to increase supporters or stir up anger against the opposition.
According to News 24, an attempted landgrab in the coastal town of Hermanus in the Western Cape on Monday turned violent, following a tense standoff with groups of protesters and police, Marchers sett a recycling plant and a police station alight, stoned cars and demolished buildings. Police used teargas and rubber bullets to disperse the crowd.
Land invasions are increasing
Since the start of the year, more than 10 areas across the country have been invaded, says News24. Earlier this month, areas north of Johannesburg, including Olievenhoutbosch, Blue Hills and Waterfall were invaded.
Image credit: News24
Other areas targeted in Gauteng included Marlboro, Alexandra, the Golden Highway near Eldorado Park, Weilers Farm, Orange Farm Extension 10 and East Lynne.
The Western Cape has also experienced invasions in Dunoon and Gugulethu.
Parliament is due to debate the issue of expropriation of land without compensation in August, after an amended EFF motion was passed to review section 25 of the Constitution.
However, according to News24, Rural Development and Land Reform Minister Maite Nkoana-Mashabane has indicated that she is preparing for a test case to expropriate land without compensation. “We cannot wait for Parliament,” she says.
The red flags
According to News24:
South Africans who own land are also wary of the arbitrary loss of land if the review leads to changes that would allow government to unilaterally claim land in the name of expropriation.
Possible conflation of land and general property is also a concern.
Banks and financial institutions, meanwhile, are concerned about what will happen to if their clients default on property loans.
With its history as an advanced and sophisticated economy on the continent, SA has a great deal of exposure to the Western economy, whose political elite have already reacted to the motion with concern.
The fear is that full scale land grabs would wreak untold damage on an already vulnerable and underperforming South African economy.
The international investor community is sure to want their investments in SA protected. While investors are not yet too alarmed by comparisons to Zimbabwe’s land grabs, some in the international community ate preparing for the worst.