The politics of expropriation without compensation – when rhetoric and reality clash

Three days. Two committees. One issue – expropriation without compensation as a constitutional amendment and an Expropriation Bill. 

It has taken years to get to this point when the different law-making processes coalesce. A constitutional amendment to expressly allow expropriation without compensation still needs a law of general application to give effect to such a stipulation. 

This week’s public hearings showed wide-ranging agreement on the need to finally replace the apartheid Expropriation Act with a constitutionally compliant law – now in its third attempt since 2008.  

Much less agreed on is the need for a constitutional amendment that “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”, given “specific circumstances” set out in national legislation. And this is where it gets curious. 

On Thursday the Department of Agriculture, Land Reform and Rural Development proposed to “remove the courts from involvement in policy determinations; and define ‘land reform’ so that it is not left to the courts to define it”, as its written presentation on the Constitution Eighteenth Amendment Bill said. 

The department also proposed a definition of land reform that “includes, but is not limited to restitution, redistribution and land tenure”, saying this is more suited to legislation and white papers than a constitutional amendment. 

The departmental reasoning remains unclear. Courts do not get involved in policy; courts have been at pains not to overstep their jurisdiction of dealing with matters brought before them. 

Bad laws can be challenged on various grounds, including violation of constitutionally guaranteed rights, legal technicalities or lack of adequate public consultations. But even then, when setting aside laws, or parts of laws, South Africa’s judiciary consistently has referred matters back to the national legislature to fix. 

Perhaps Agriculture, Land Reform and Rural Development had more than its share of such challenges, including the Communal Land Rights Act declared unconstitutional on a technicality in 2010 – it is yet to be redrafted and tabled in Parliament – or the 2014 Restitution of Land Rights Amendment Act that in 2016 was declared unconstitutional because of inadequate public consultations. 

The department has been sharply criticised for failing to ensure land reform happens at scale, with competence and in support of redressing past injustice. 

The critique is on public record, not only in countless academic research papers, but also in the 2018 High Level Panel report chaired by ex-president Kgalema Motlanthe. 

“The pace of land reform has been slow. The development of policy and law has drifted away from its initial pro-poor stance and lacks a vision for inclusive agrarian reform. There are also significant gaps, such as on tenure security, where legislation has not been passed, putting the lives and livelihoods of many rural dwellers in peril…” says the abstract to the report’s Chapter 3 on land reform, restitution, redistribution and tenure security.

Land reform and restitution are central to South Africa’s long outstanding social justice redress and to effect what the Constitution’s founding values stipulate – a democratic state and society based on human dignity, the achievement of equality, and accountability, responsiveness and openness.