Sunday Times 26 January 2020

Move to block courts from having a say on expropriation without compensation

The ANC is proposing a dramatic change to a constitutional amendment allowing expropriation of land without compensation, in a move that effectively cuts out the courts and gives a “land tsar” almost unlimited powers.

The U-turn, which has shocked constitutional law experts who warn it could be both unprecedented and unworkable, gives all power to the minister of land reform, instead of the courts.

The ANC’s new plan removes the courts as the decider on whether or not the state will pay for land it expropriates, and gives that power to the minister instead.

It is being seen as a victory for the “radical economic transformation” faction in the ANC, which pushed for the amendment at the party’s national executive committee (NEC) lekgotla last week.

This means ANC MPs will go to parliament and oppose the current bill and push for the changes.

Ironically, the ANC’s new stance could further delay passage of the bill with the two-thirds majority it requires as a constitutional amendment, with the EFF indicating it will oppose the ANC’s new approach.

Supporters of the change in the ANC’s NEC argued that the courts are to blame for the slow pace of land reform, and said the proposal will fast-track the process.

Constitutional law expert Phephelaphi Dube said the proposal “will not work”.

The current version of the land expropriation bill, which has been accepted in parliament and was the outcome of a multiparty process, says it should be up to the courts to determine whether the state should pay for land being expropriated for land reform.

“A court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil,” reads the bill. The ANC wants the words “a court” to be replaced by “the executive”.

The party says it must not be left to courts to determine when the state will not pay compensation when land is expropriated.

The ANC’s Mathole Motshekga, who is heading an ad hoc committee set up to deal with the matter, said if the courts are to determine compensation, “it will take another 25 or 50 years to sort out land reform”.

“The minister can make the decision, determine the price – that does not exclude the jurisdiction of the courts. Aggrieved parties may go to the courts afterwards and say I am not satisfied with this. The court will be an arbiter,” said Motshekga.

He said landowners should embrace this proposal to fast-track land reform because further delays may lead to the kind of land grabs that took place in Zimbabwe.

“Landowners who have seen the example of Zimbabwe should be more supportive of this process because you don’t want groups of people invading the land.

“This is an orderly process. If they don’t support this they are opening themselves up to the law of the jungle. We don’t want a banana republic and we don’t want the law of the jungle,” he said.

Aggrieved parties may go to the courts afterwards and say I am not satisfied with this. The court will be an arbiter

The bill, which was gazetted last month and will go to public hearings next month, is aimed at amending section 25 of the constitution to allow for the state to not pay compensation when land is expropriated for land reform purposes.

Motshekga’s assertion that the courts are responsible for the slow pace of land reform is disputed by a 2019 report by a presidential land reform panel, which found that a weakened state and failures of government were responsible for the failures of both urban and rural land reform and restitution.

“At the heart of the problem is the poor capability of the state, which is characterised by deficient co-ordination, limited and misaligned allocation of resources (both public and private resources, particularly the finance sector), and further complicated by corruption,” reads the report.

The ANC’s new approach may cost it allies as the EFF told the Sunday Times the party does not agree with the proposal. The ANC needs EFF support to reach a two-thirds majority in parliament.

EFF deputy president Floyd Shivambu said the ANC has no mandate to decide the matter. “The ANC’s discussions on whether there must be the determination of compensation by the judiciary or executive is totally misplaced and not what parliament mandated the ad hoc committee to do,” he said.

“Nowhere in this mandate does it say there should be the determination of who should decide compensation, so the ANC’s off the rail concerning this process,” said Shivambu.

The decision to amend the constitution was taken at the ANC’s national conference in 2017, when President Cyril Ramaphosa was elected ANC leader. The issue has been used as a political tool by Ramaphosa’s detractors who accuse him of dragging his feet in implementing party resolutions.

The matter is expected to take centre stage at the party’s national general council.

Motshekga said if the executive was responsible for deciding on compensation for expropriated land, “parliament will know who to point the finger at”.

“The systems are currently very loose. If it’s centralised, as parliament we will actually look at what the minister’s decisions are. It minimises the possibility of corruption,” he said, adding that “people deployed in the executive would be people of integrity”.

Constitutional law expert Dube said the party’s move to bypass the courts should not be a surprise because the ANC has attempted to usurp the courts’ powers previously.

“The problems of land reform [lies] with the executive – especially the big land reform processes. The courts came to the assistance of communities. They are now scapegoating the courts for the delay in land reform,” she said.

Dube said it was concerning that land reform will be in the hands of one individual.

The DA expressed its opposition to the ANC’s move and the amendment altogether.

“The DA is of the opinion that expropriation without compensation is tantamount to confiscation and we cannot in any way support that,” said the DA’s Annelie Lotriet.

“What the ANC wants is that the minister can decide unilaterally without any consultation on which farms can be expropriated. We believe there should be a proper process through the court as provided for [currently] by the constitution.”

Parties have until Friday to make their submissions on the amendment, and public hearings will thereafter commence in February.

In its submission, the EFF proposed that the amendment should include: “The State should be the custodian of all SA’s natural resources, inclusive of land, mineral resources, and water, and relevant legislation should be passed to clearly define and contextualise State custodianship of natural resources.”

The party also proposed that the amendments should include that property may be expropriated without compensation “only in terms of law of general application (b) for a public purpose or in the public interest”.

Motshekga said that the ANC will respect the public input and called on the public to participate in the public hearings.

A 2017 report commissioned by former minister Gugile Nkwinti noted that white South Africans, who constitute 9% of the population, directly own 23.6% of the country’s rural land and 11.4% of land in towns and cities.

Black South Africans, who constitute 79% of the population, only directly own 1.2% of rural land and 7% of formally registered property in urban areas.

The report said whites own 72% of the 37-million hectares of SA’s farmland – farms and agricultural holdings held by individual landowners – followed by coloureds at 15%, Indians at 5% and Africans at 4%.

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