11 March 2019

South Africa: Ad Hoc Committee Concludes Briefing by Experts on Land Reform and the Constitution

Photo: Masixole Feni/GroundUp
Land reform is favouring businesses over poor individuals, two researchers have claimed.
press release

The Ad Hoc Committee to Amend Section 25 of the Constitution continued with hearings with experts on the question of land reform, which will assist with drafting the necessary constitutional amendment to make it possible for the state to expropriate land without compensation, in the public interest.

The committee heard on Friday from experts such as Adv Tembeka Ngcukaitobi, Adv Wim Trengove, the Office of the Valuer-General and a private valuer, Mr Peter Meakin. Committee Chairperson Ms Thoko Didiza thanked presenters, as the committee will benefit from their expert knowledge in what is possible when amending the Constitution.

Adv Tembeka Ngcukaitobi cautioned the committee not to combine the time and manner of compensation with expropriation. He referred to Section 25 (3) of the Constitution, which indicates that where compensation is payable, the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.

“Where land is expropriated, the owners must get off the land. The time and compensation can be discussed in courts. Surely such matters cannot go on for 10 years before the state finally gets its hand on the land?” he asked.

He further raised questions about non-owners, such as banks, who have a financial interest in farms. “We have heard that since the land debate started, many have mortgaged and re-mortgaged their farms in order to make it more difficult to expropriate. If the Constitution is amended to say don’t compensate the owner, Parliament should not open the door for compensation to be paid to banks.”

Adv Ngcukaitobi said it is farfetched that South Africa can operate on no compensation regarding land expropriation. He suggested judges should be the ones to decide on when “null” compensation should be paid.

Adv Trengove clarified that redress of unequal access to land should not be in dispute. His presentation highlighted the fact that according to a recent court judgement, expropriation of land does not address redistribution of land. The court judgement is clear that if the state takes the land and gives it to someone else, it is not expropriation. It is expropriation if the state takes the land and keeps it, and then leases it to communities or individuals.

The committee heard that currently there is room for Parliament to legislate on redistribution. If government takes the land and leases it, it would constitute expropriation. In response to a question, Adv Trengove said that where land is in white hands, from an historical point of view it must be seen as the product of privilege, unless proven otherwise. He went further to say the current hindrance is the “just and equitable” clause in the Expropriation Act, which is currently seen as market value or in line with “willing buyer and willing seller” concept. He suggested a balance should rather be struck between what the owner wants and that of the broader project of land reform.

The Office of the Valuer-General (OVG) said making expropriation without compensation more explicit in the Constitution would assist their work. As the Constitution is currently, some things are implied or ambiguous, and making it more explicit would be beneficial. Land and property is central to accessing capital in South Africa.

Ms Didiza, said “South Africa needs an effective system that takes the country forward.” The committee will now apply its mind before considering a draft interim report later this week.


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