Down to the wire on land expropriation without compensation — before 10-week recess

Monday, 31 May is the deadline for Parliament’s ad hoc committee on legislation amending Section 25 of the Constitution. By Friday afternoon, 28 May, nothing was finalised as further bilateral meetings between the ANC and EFF were planned. 

Two Fridays ago, the ad hoc committee decided to broaden the scope to amend each of the sub-clauses of Section 25 of the Constitution, rather than what is proposed in the Constitutional 18th Amendment Bill — a rather limited revision to expressly state “nil compensation” is possible. That’s after the EFF pushed for so-called state custodianship of all land, effectively nationalisation by another name. 

Bilaterals were ordered. By Friday, 28 May the EFF and ANC recorded some toenadering, but no finalisation. Other political parties maintained that amending the Constitution was not necessary. 

The specifics of the ANC-EFF agreement remained somewhat unclear. For example, both agreed on the removal of the courts from Section 25. ANC MP Cyril Xaba explained how the courts’ involvement in determining compensation was judicial overreach, although courts could still be asked to mediate disagreement, if any, about compensation.  

The ANC remained silent on EFF Chief Whip Floyd Shivambu’s proposed amendment, that “Land is a natural resource and a common heritage which belongs to all under the custodianship of the state”. Presumably, this would be part of the bilaterals over the weekend. 

Ad hoc committee chairperson Mathole Motshekga was quite adamant throughout that the committee would not limit itself. That’s despite the legal opinion that substantive changes as contemplated now mean the Constitution 18th Amendment Bill was overtaken, and effectively invalidated. And despite legal and opposition recommendations to return to the National Assembly, first to request an extension and second, a fresh and expanded mandate. 

Motshekga said the ad hoc committee would produce a report and a bill — it was for the House to say if it was out of order. 

Parliamentary legal services were told to draft an amendment to the bill informed by the debates. “If we can’t have one uniform amendment… For now they should give us draft constitutional options that have emerged this far.” 

With another ad hoc committee meeting announced for Monday at 9.30am — “We can find one another,” said Motshekga — the report and Constitutional Amendment Bill are earmarked to be finalised for submission to the National Assembly at 6pm. 

Meanwhile, Shivambu’s persistent allegations that Parliament’s legal services were “infiltrated” and included “right-wing elements” must be formally put in writing to National Assembly Speaker Thandi Modise. Thursday’s programming committee meeting decided such allegations could not be made without substantiation. 

It remains to be seen whether the ad hoc committee on amending Section 25 will make its self-set 6pm deadline on Monday, 31 May, the date the National Assembly set to finalise the whole process. 

But the process has highlighted the political brinkmanship over land expropriation — and that matters remain unsettled. 

If the EFF withdraws its support because it did not clinch its constitutional amendment for state custodianship of land — this goes further than the ANC’s 2017 Nasrec compensationless expropriation resolution — the ANC would find itself short of the 75% threshold, or 267 votes, needed in the House to amend the Bill of Rights of the Constitution.  

The ANC has 230 seats in Parliament, the EFF 44. The DA that has 84 seats in the House, the Freedom Front Plus with its 10 seats and the IFP with 14 seats have come out against the constitutional amendment, as has the African Christian Democratic Party (ACDP) with its four seats.  

Even if all the other parties support the ANC — and that’s not a given — they represent 14 seats, well short of the 37 needed to make up the 75% support threshold for the constitutional amendment to make explicit what is implicit on expropriation without compensation.

Mkhwebane’s legal challenge against Parliament’s impeachment rule unfolds from 7 June in the Western Cape High Court. But because she failed to interdict this impeachment inquiry in October 2020, nothing stops Parliament from scheduling the first meeting of this Section 194 inquiry once the names of all members are determined.