The Parliament of South Africa has agreed to amend the Constitution of the country in order to make it explicit that it is possible to expropriate land without paying compensation in order to further land reforms. The supporters of this move - the ruling  African National Congress (ANC) and the opposition Economic Freedom Fighters (EFF) – argue that this is necessary to speed up land reforms in order to overcome the continuing extreme and still largely racially defined inequalities in land ownership. Other opposition parties have objected to the idea of amending the Constitution citing the risks involved in tampering with a Constitution and arguing that the slow pace of land reform has been due to incompetence and corruption in the implementation rather than any Constitutional constraints. This is a debate of great importance for South Africa and with lessons for other countries attempting to address large land inequalities.

To take forward the process of amending the Constitution, the Parliament of South Africa released the Draft Constitution Eighteenth Amendment Bill, 2019 for public comment at the end of December 2019 (the deadline for submissions on this is the end of February 2020). In January the ANC further complicated the debate by deciding that in their view “the power to determine issues related to expropriation of land without compensation should reside in the executive.” This is surprising, because the draft Bill was agreed on by an ANC dominated Parliamentary structure and had given such powers to the court.

This blog critiques the Draft Amendment Bill (the Bill) and the new ANC position and suggests alternative amendments. My starting position is that it is fine to be explicit about the possibility of expropriating land without compensation, but it should also be clear on the circumstances under which this can happen. Constitutionally established criteria are important to create certainty and to prevent the abuse of the new powers the amendments will confer. Further, I believe that a constitution not only needs to set out a clear framework that all other laws and their implementation need to fit within, but it also needs to send a clear message to the public about what the intentions are. 

What the Bill does, is to simply add minor amendments to Section 25 stating that compensation when land is expropriated for land reform can be nil and a requirement that another piece of legislation to be drafted to “set out specific circumstances where a court may determine that the amount of compensation is nil”. This is disappointing as the real issue, the circumstances under which land could be expropriated without compensation, is not addressed. In essence the Parliamentary Committee handling this have not done their job, instead deferring the discussions and important decisions to another legislative process with important implications.

Whereas the Constitutional amendment requires a two thirds majority support in Parliament, the legislation that the amendment requires be drafted will only need a simple majority to pass. Thus, the ANC - who hold 58% of seats in Parliament and therefore need support from at least one opposition party to pass the Bill - will be able to decide alone on the proposed new legislation and with it the criteria for determining when no compensation will be paid. It is hard to imagine why any opposition party would approve the Bill and in doing so give the ANC such power. We really have no idea what might go into that legislation especially given the shifting and contradictory messages from the ANC on this issue. We have even less idea what other political party may gain a Parliamentary majority in the future and what changes they might make. The bar could be set so low that almost any land could be taken without compensation for almost any purpose that could loosely be linked to “land reform”. Or the bar could be made so high that it is effectively impossible to expropriate land without compensation rendering all the work on amending the Constitution null and void.

It is essential to Constitutionally secure the criteria by which a person could be deprived of land and property. This is the current case with the calculation of what is just and equitable compensation spelt out in subsection 25(3). If anything, the Constitutional guidance should be strengthened, rather than weakened, when it comes to determining if nil compensation is justified. But the Bill doesn’t provide any criteria and separates the processes and criteria for the decision on whether or not to pay compensation from the process and criteria set out in the Constitution for determining the amount of compensation. This doesn’t make sense. Why for example, should a decision on paying R1 compensation be treated differently from the decision on paying nil? Nil compensation is and should be treated as one end of a continuum of possible determinations on compensation.

The preamble of the Bill, says that “such an amendment will further ensure equitable access to land and will further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs”. But there is nothing in the Bill that addresses issues of productive land use, food security, or agricultural reforms. Simply enabling a nil compensation under circumstances that are not specified cannot be considered to be contributing to any of these. The Bill creates no further guidance on what land could be expropriated and no guidance on what any land that is expropriated should be used for.

The Bill also fails to change the overarching message and tone of Section 25 (the property clause). The opening subsection 25(1) still foregrounds the message of protection for existing property rights (“No one may be deprived of property…”), despite much of this property having been unjustly obtained. This can potentially influence the interpretation of the overall clause and also sends the wrong message to the wider public.

Proposed alternative approach

So, what do I suggest? First, begin Section 25 with a new subsection entrenching the concept of the social and ecological function of land. Something along the lines of:

All land in South Africa, and the natural resources linked to it, are an asset for our nation and should fulfil the social and ecological function of land in order to contribute to meeting the needs and aspirations of our nation and all its citizens and future generations.

This sends a very different and important message about how we need to look at and treat land in South Africa and provides guidance both on what land can be expropriated and what the expropriated land should be used for. The  concept of the social function of land is not new, it is incorporated into a number of Constitutions around the world. Adding the ecological function to this is in recognition of the pressing ecological challenges our planet and South Africa are facing.

There is a useful discussion to be had on what the social and ecological function of land should be in South Africa. As a contribution to that discussion I suggest that for land to fulfil its social and ecological function it should be used: to address historical and continuing racial and gender injustices; for accommodation, production, and/or environmental protection purposes; in ways that respect people’s dignity, benefits the owners and workers on that land, and enhances the environment; and in ways that do not undermine labour laws, violate the dignity of any people, violate any environmental and planning laws and regulations, or damage the environment.

Second, the extent to which land is or is not currently used to fulfil its social and ecological function should be added to the existing criteria for determining just and equitable compensation contained in the current subsection 25(3). These enhanced criteria must be used to determine if any compensation should be paid and if so how much. The intended use of the land, that is part of the existing criteria, should also include reference to considering if it will be used to fulfil its social and ecological function.

Third, other small amendments are needed to the current subsections 25(2) and (3) to include the possibility of nil compensation, but in an integrated way that makes this part of the same process and subject to the same criteria as decisions on the amount of compensation, if any, to be paid.

Power to the Executive or the Court

Coming to the ANC proposal of the Executive deciding if and when to pay any compensation. The Constitution and the Bill currently make provisions for the amount and manner of payment of compensation, including nil compensation, to be determined by agreement with those affected or by a court. I believe this is an appropriate arrangement. Allowing for finalisation by agreement would in most cases mean agreement between the Executive of government and the people being expropriated. The Executive will have the opportunity to settle cases and proceed without requiring a court ruling, provided they can negotiate an agreement. It is only when they can’t agree that a court decision will be required. Once the court has made some rulings on cases, precedents will have been set and negotiating agreements will become easier as all parties will be clear on the likely ruling should they fail to agree. The time and cost involved in court processes then deters any party from going to court when their chances of success are slim or zero.

The ANC concerns about the slowness of the courts leading to delays in the expropriation of land are not without substance. As it happens, the Department of Justice is in the process of working on the conversation of the Land Claims Court into a Land Court with a wider mandate. These discussions include looking at the resource requirements for the Land Court to function effectively. If the concerns are real, I expect and look forward to seeing the ANC using their control of the Executive and Parliament to ensure that the Land Court is well resourced and efficient and that the Executive have streamlined processes for applying to court to get determinations on compensation as well as land claims and other cases.

One assumes that the ANC is arguing for the Executive to be able to determine if compensation should be paid or not and also be able to implement their decision. That is potentially take the land without compensation or agreement. The ANC has not been clear on the implementation issue, but for the Executive to be able to determine, but not implement would achieve nothing. We would in practice be back with the Executive either getting agreement or being interdicted and waiting for the courts.

Allowing the Executive to determine if any compensation should be paid and to implement without obtaining agreement from other affected parties is a recipe for abuse. It would be no surprise, for example, if such powers were used by a government minister to expropriate land from political opponents without compensation, and to give that land to political allies or business associates. To say that people can still challenge the compensation decision in court is not good enough. The onus (and expense) of initiating the case, and any slowness in the functioning of the courts, all become burdens on the aggrieved parties who may have already suffered serious losses.

The risk is not so much to wealthy white land owners who may be trying to block much needed land reforms, it is far more likely - as we have seen in South Africa and around the world - that it is poorer black communities who will have their land taken without compensation. These are also communities who are less likely to have the resources to go to court to seek justice. In the last years communities from the North West and Eastern Cape Provinces have had to go to court to defend their land rights, in the face of government efforts to hand over their land to mining companies without any clear compensation. These communities won the recognition of their land rights and the right to say no to mining. Such rights are likely to be undermined if the Executive gains new powers to expropriate without compensation or agreement from land rights holders.

Dr. Marc Wegerif. University of Pretoria, South Africa.