16 November 2018

South Africa: 10 Questions About Expropriation Without Compensation Answered

On Thursday the Joint Constitutional Review Committee adopted a recommendation that the Constitution should be amended to allow for expropriation without compensation.

News24 tries to answer some questions which might arise from this development.

1. Okay, so the Constitution has effectively changed now, right?

No. The Constitution has not changed. The Constitution, as it is, still stands. The Joint Constitutional Review Committee only recommended that the Constitution should be changed. This recommendation only set in motion another process that can eventually lead to an amendment of the Constitution.

2. So, what happens next?

First, the committee's report must be tabled in both houses of Parliament, the National Assembly and the National Council of Provinces, where it will be debated before being put to a vote.

If adopted, which is almost a given as the ANC has the majority and the support of the EFF, NFP and UDM, Parliament will then instruct a committee to draft a proposed amendment. This will entail a new public participation process.

This must then be adopted by Parliament with a two-thirds majority in the National Assembly and six out of the nine provinces supporting it in the National Council of Provinces.

3. Will this be done before next year's election?

This seems highly unlikely. The Joint Constitutional Review Committee's report will only be debated in Parliament around the end of this month, and Parliament will rise soon thereafter. The committee that will deal with an amendment must be constituted, it must set a programme, produce a draft amendment which must be put for public comments for 30 days, then set up a programme to deal with the public comments, and refine the bill, before tabling it in both houses of Parliament.

Parliament will re-open in mid-February with the State of the Nation Address (SONA), followed by the debate on the SONA and then the budget address. It is expected that the Fifth Parliament will rise at the end of March because the election is expected in May.

ANC MP Vincent Smith said on Thursday: "The process of actually amending the Constitution is not going to happen before the elections. It is very clear we're not going to meet the election deadline."

He said the ANC wanted to show South Africans that it was very serious about addressing South Africa's "original sin".

There is also a possibility that opposition parties opposed to the amendment, and the Institute of Race Relations, might ask a court to review the committee's process, which will prolong the process even further.

4. When the Constitution finally is amended, land expropriation can begin immediately, right?

No, further legislation will first have to be enacted - going through the whole parliamentary process - to effect to the constitutional amendment.

5. Do land invaders now have a leg to stand on?

No. South Africa's property laws remain unchanged. Even when the Constitution is amended and the necessary legislation enacted, private individuals will not be able to arbitrarily lay claim to pieces of land as their own. Expropriation is the process where the state takes ownership of property.

President Cyril Ramaphosa has said on several occasions that "land grabs" will not be tolerated.

6. Does this mean that the state will own all the land once the whole process is completed?

As things stand, no. It is the EFF's position that all land must be nationalised. The ANC is opposed to this. The Joint Constitutional Review Committee's recommendation does not state that the Constitution should be amended to allow for the nationalisation of all land.

It is expected that nationalisation will be proposed by the EFF in the process of drafting the constitutional amendment.

7. What exactly is the recommendation the Joint Constitutional Review Committee adopted on Thursday?

The committee recommends that "section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution with regards to expropriation of land without compensation as a legitimate option for land reform so as to address the historic wrongs caused by the arbitrary dispossession of land and, in so doing, ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes".

Currently section 25 of the Constitution says the following must be taken into consideration in determining "just and equitable" payment which reflects "an equitable balance between the public interest and the interests of those affected": the current use of the property, the history of the acquisition and use of the property, the market value of the property, the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property and the purpose of the expropriation.

As things stand, these provisions will be expanded to include that land can be expropriated without compensation.

ANC MP Vincent Smith said on Thursday expropriation without compensation would be "but one of the mechanisms" to effect land reform.

8. Why do some parties - the DA, ACDP, Cope, FF Plus and IFP - oppose a constitutional amendment?

All these parties say they support land reform, but it is not necessary to amend the Constitution to implement effective land reform.

"The vote on expropriation without compensation allows government the perfect cover to avoid having to explain their rank failure over the past two decades to take land reform seriously," the parties said in a joint statement on Thursday.

"The Constitution is not the barrier to land reform, but corruption, constrained budgets and a lack of political will on the part of the ruling ANC have contributed to the delays in land redistribution process.

"The current constitutional provisions adequately allows for progressive land reform, restitution and the protection of tenure security and land rights. Successful land reform doesn't require amending the Constitution.

"Expropriation without compensation holds a real and tangible threat not only to existing land rights of all South Africans but also threatens investment, the banking industry and food security due to the fact that 'property' is not limited to land."

9. Why do the ANC, EFF, UDM and NFP support expropriation without compensation?

They say that the pace of land reform has been too slow and was constrained by the "willing buyer, willing seller" principle and relying on market forces. They say it is essential that the "original sin", as President Cyril Ramaphosa calls the dispossession of blacks during colonial times and apartheid, be corrected and they view expropriation without compensation as a mechanism to do this. The pattern of land ownership has remained largely determined by race, with white people still owning the majority of the land.

Smith said on Thursday that clause 10 of the Bill of Rights states that everyone has inherent dignity.

"The majority of South Africans had this inherent dignity trampled on, and this must be corrected," he said.

10. Would this be the first time that the Constitution is be amended?

No, the Constitution has been amended 17 times previously, the first being in August 1997. The amendment provided that an acting president doesn't need to swear the oath of office again if they had previously served as acting president. The last amendment was in 2013 and declared the chief justice as the head of the judiciary and provided for some other judicial reforms.

This will, however, be the first time that the Bill of Rights is amended.

Source: News24

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