Politicians push for amendment of Constitution to allow for land expropriation without compensation – civil society, not so much

“Do your members acknowledge [they] have been the beneficiaries of a crime against humanity?” was how EFF MP Mbuyiseni Ndlozi put it to AgriSA after a presentation that changing the Constitution would not redress land inequality and boost land reform. 

It followed his previous comments that “colonialism, by definition, was a criminal confiscation”, and how the proposed constitutional amendment for compensation-less expropriation was “the outcome of a democratic process”. 

AgriSA CEO Christo van der Rheede responded, “Farmers at this point in time are producing food, earn foreign exchange. We cannot deny what has happened in the past, but we need to have a very, very realistic approach to addressing the social justice.” 

Money from the agricultural sector was available for the government to ramp up its land and agrarian reforms, Van der Rheede added – R500-million from the AgriSeta, or sector training and education authority, and another R500-million in statutory levies from the National Agricultural Marketing Council. 

Similar, if less agricultural, submissions came from the Helen Suzman Foundation legal counsellor, Anton van Dalsen.

No amendment of the Constitution was needed, because section 25(8) already allowed legislative measures, like expropriation, “to redress the results of past racial discrimination” and “to achieve land, water and related reform”. 

What was necessary, Van Dalsen argued, was to deal with the corruption, inefficiency and incapacity demonstrated by the government – as stated in the report by the High Level Panel chaired by former president Kgalema Motlanthe – the failure to amend the existing expropriation legislation, and the minimal financial provision, or o.35% of total government expenditure for land reform and agricultural support. 

Also important were the criteria, including how beneficiaries would be chosen, what rights they would have, whether a properly staffed and funded land reform agency would manage this, and if there was the political will and sufficient certainty to avoid further shocks to business and investor confidence. 

“If these questions are not addressed in an effective and convincing manner, land reform will not succeed. Focusing only on section 25 of the Constitution, on its own, offers no final solution,” said Van Dalsen. 

Committee chairperson ANC MP Mathole Motshekga’s reply was that such questions could not be addressed by the Constitution, but were dealt with in the amendment of the 1975 Expropriation Act. 

Departments, including rural development, have been asked to brief MPs, Motshekga told Van Dalsen. 

“So don’t worry about political will because those departments and the political leadership are hard at work to deal with those issues. You should not fear government is not doing the necessary.” 

Motshekga’s comments come on the same day Business Day reported how black farmers had lodged R2-billion claims over unfair evictions – apparently by “rogue officials” – against the land reform and agriculture department during the 2019/20 financial year. 

Such reports of black farmers being moved on have emerged countrywide since Land Reform, Rural Development and Agriculture Minister Thoko Didiza on 1 October 2020 announced that the government would redistribute 700,000 hectares of underutilised state-owned land, and sign 30-year leases with beneficiaries. 

On Tuesday Cosatu came out clearly in support of the 18th constitutional amendment, that in the bill states:

“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.” 

The labour federation’s parliamentary liaison, Matthew Parks, told MPs the amendment was long overdue and crucial to changing South Africa’s status as the most unequal country in the world. 

The constitutional amendment proposal provided “the correct balance” of interests, rights and redress. 

“We just need to look next door to Zimbabwe to see what happens when we don’t deal with land reform. The alternative to not dealing with land reform is a ticking time bomb, which the country can’t afford.” 

...the 2014 Restitution of Land Rights Amendment Act, which reopened the claims window that had closed on 31 December 1998, was set aside by the Constitutional Court in July 2016 precisely over rushed public consultations