Times SELECT 16 January 2020

Former public protector Thuli Madonsela has voiced support for President Cyril Ramaphosa’s push to finalise constitutional amendments around land expropriation without compensation, saying the matter required urgent attention.

“I think it’s urgent for two reasons: one, there is a need to clarify the uncertainties and to allay fears among investors about what the policy direction on this really is. Once the constitution has been clarified, then the law can be clarified, then people can know what risk exists for their properties and what risk does not exist, and if there is any risk, how to mitigate against that risk,” she said on Wednesday.

“Two, for ordinary people, the sooner we have a constitutional clarification on this, the easier it becomes for us to get on the road towards holistic land reform … I think land, for me, is an explosive issue. The politicians may be handling it for whatever reason but if it’s not handled it has a potential to derail democracy.”

Madonsela was responding to Ramaphosa’s comments this week when he told business leaders: “This year we are going to have to finalise the legislation and the constitutional construct on the land question.”

Ramaphosa called on the business community to participate in a “much more proactive manner, including through proposals to donate unused or surplus land”. The business community should also “be part of the solution when it comes to this most important issue”.

Speaking to Times Select’s sister publication Business Day at a workshop on the new Expropriation Bill and the proposed amendments to Section 25 of the constitution, Madonsela said it was important to know that the proposed amendment was “just the starting point and we should know that this is not the solution, but part of the process of a solution”.

But some attending the workshop, hosted by the SA Research Chair in Property Law at Stellenbosch University, warned that Ramaphosa’s intention to finalise the legislation this year could be overly ambitious given the complexities attached to land reform in SA.

“It is imperative to get policy certainty with regards to land reform, but with land reform so encompassing and with a 10-year gap in government policy on land reform, it is ambitious to think that this will be done within a year,” said associate professor of law at North West University Elmien du Plessis.

She added that the Expropriation Bill, which defines what categories of land can be expropriated with nil compensation, “might be promulgated this year, and possibly the constitutional amendment, but as far as other legislation is concerned, it still needs drafting and deliberation”.

“Apart from that, changing or promulgating the legislation does not guarantee that the state will move to action, to actually do the reforms that they could have and should have done the past 25 years,” she said, adding that the constitutional amendment “will also not fix the administrative collapse in land reform”.

Constitutional law expert Phephelaphi Dube agrees, adding that Ramaphosa’s “year-end timeframe is not feasible, given the technical and highly contested nature of creating a new expropriation landscape for South Africa” – and suggesting that the proposed amendment may be subject to legal challenge.

“There may also be legal challenges arising out of the fact that the Constitution 18th Amendment Bill, gazetted on 13 December, gives insufficient time for public comment, infringing on the constitutional requirement for public participation. Ultimately, any attempts at political expediency may very well lend themselves at credible legal challenges.”

Dube added: “As it stands, the Constitution 18th Amendment Bill and the Expropriation Bill, which have both been published for comments, will be the key legislative instruments to give effect to circumstances under which certain categories of land may be expropriated with nil compensation. However, both are vaguely drafted, giving rise to uncertainty.”

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