Greater certainty on expropriation imminent

Greater certainty on the content of the imminent change to the wording of Section 25 of the Constitution to give explicit meaning to the state’s power to expropriate property without compensation has emerged after a week of often heated debate and input in parliament.

At this stage it seems that the constitutional change will be limited in length, with the detail to be trodden out in the Expropriation Bill, which has just started its journey through parliament to the statute book.

Read: What you might like to know about the Expropriation Bill (Mar 29)

At issue after this week’s inputs before the parliamentary ad hoc committee to amend Section 25 (the property clause) are mainly who will decide the amount to be paid in compensation (including a nil amount), whether anyone will be exempted from expropriation without compensation, how to balance the need for a thriving economy with the need for historical redress, and whether the state has the capacity to manage land reform successfully and sustainably.

‘Government must decide’

On setting the amount to be paid some ANC MPs, including co-chair of Constitutional Review Committee Party Dr Mathole Motshekga, have floated the idea of the state both deciding the amount to be paid for expropriating land and paying it, in the belief that involving the courts would delay redress and that the people have elected the government democratically in a way the courts were not, so the government must decide.

The implications of such a decision for the doctrine of the separation of powers were repeatedly raised, but the concept keeps resurfacing from some ANC MPs.

Several inputs from the Africanist perspective, including the National House of Traditional Leaders, Black First Land First and the EFF, argued that the whole point of the exercise is to right the wrongs of the colonial and apartheid past, and that this means ownership must be returned from whites to blacks on the same terms as those under which it was originally taken, namely without compensation.

From this argument flowed the contention that land under black ownership must be exempted from expropriation without compensation – it must be limited to land under white ownership only.

It is to be doubted that such racially-based proposals would themselves pass constitutional muster, and past experience has invariably shown that in the end ANC MPs vote as instructed by Luthuli House. But the way in which such arguments have clearly chimed with ANC members has been instructive nevertheless.

Balancing act

Two other main points of discussion were on how to balance the need for redress with the need for economic growth and, flowing from that, whether this can be achieved while the state has custodianship of the land reform process.

Input after input by those actively involved in the field of land reform proved the state to be corrupt and incapable, to the point that even ANC MPs stopped disputing the fact.

With no alternative implementing agent proposed, organisations like the Roman Catholic Church made the plain warning that sometimes, in your efforts to correct an indisputable wrong, you can cause even more damage through an ill-advised alternative.

Turning to inputs by different stakeholders, the Banking Association of South Africa (Basa) warned parliament that excessive use of expropriation without compensation could place great pressure on the local banking system, given the amount banks are owed in mortgages.

Basa CEO Bongiwe Kunene said the association supports sustainable land reform for economic growth, and does not believe current land ownership patterns to be sustainable.

Payment for improvements to property

It supports the envisaged strong role of the courts in settling the amount to be paid in compensation, including when that amount is nil. Basa is firmly in favour of payment for improvements made to the property.

As the holder of R1.6 trillion in mortgages, Basa issued a strong warning that if expropriation amounts are continuously set below market value, it would put pressure on those who must pay the mortgage, because the amount borrowed is the amount to be paid back, not the compensation amount.

It follows that if the compensation amount is too low to settle the debt owed on the mortgage, the banking system would be put under pressure, because of the increase in bad debt, causing a pincer-type crisis because banks are under statutory obligation to have enough cash available to honour payment of all deposits.

The Committee for the Advancement of the South African Constitution (Casac), represented by Lawson Naidoo, argued that although it believed a constitutional amendment to be unnecessary, the die was cast and the wording was the only contention.

Naidoo contended that the core question remains whether a constitutional amendment would make any difference to substantive land reform, given the corruption and incompetency within the state. He criticised the current debate for focusing on the interests of different elites, and the current ruling classes for not having a people-centred mindset prioritising the poor and the marginalised.

Casac believes some focus must shift away from rural land to urban land, to correct apartheid spatial planning, and that title deeds for those on communal property must be prioritised.

Fireworks

Fireworks followed when Andile Mngxitama of Black First Land First (BLF) brought the discussion back to basics.

He reminded the ad hoc committee that the process initiated by parliament three years ago, of which the intended constitutional change would be the culmination, was expropriation without compensation to correct the colonialist and apartheid past, but that the definition thereof had become limited in the debate to such an extent that it could render the process meaningless.

“This is a massive betrayal of black people. What was it supposed to achieve? The transfer and the return of land which is in white hands into the ownership of blacks. Will this constitutional amendment achieve massive changes in the patterns of land ownership?

“No, it will not happen. This process will not give land back to black people. What are you actually doing?

“It feels as if my car has been stolen but I am only allowed to reclaim the wipers and the threadbare tyres,” Mngxitama claimed.

He said both President Cyril Ramaphosa and EFF leader Julius Malema were not truly committed to land reform, given the limited intended scope of expropriation without compensation.

“All this is about is land that lies fallow and land not used by anyone. We are talking about the small bits of land the white people do not want,” Mngxitama said, asking for the current proposed constitutional amendment to be rejected and another to be drawn up.

“All land under white control was stolen and must be handed over to black people. Or nothing would have changed.

“No land under black control must be expropriated,” Mngxitama added, saying that the most corrupt of all systems was the current one which allowed 30 000 white farmers to control 80% of all land.

The National House of Traditional Leaders supported expropriation without compensation everywhere except for the land under control of its members.

Mandisa Shandu of activist group Ndifuna Ukwazi said expropriation must be used proactively in urban areas to change apartheid spatial planning and ensure access for the poor to housing opportunities in desirable parts of cities.

She emphasised that it serves little purpose to change the constitution as long as that state remains as incapable as it currently is. The Housing Act, for example, empowers municipalities to expropriate land for housing developments, but municipalities do not use these powers proactively.

Impact on lives

Representing the Legal Resources Centre, Wilmien Wicomb said the debate had to shift from a focus on the impact upon the lives of white people to the impact of expropriation on the lives of black people.

Expropriation is a continuing lived reality for many black communities who, for instance, lose their land to mining companies and are not paid anything even approaching market value in return.

The Roman Catholic Church asked for more substance and less sloganeering in the debate.

Mike Pothier, on behalf of the church, said they did not want to come out wholesale for or against expropriation without compensation – they are of the more nuanced view that it depends on circumstance.

The church supports the role of the courts in determining the compensation amount, and the discretion allowed in relation thereto. It supports a differentiation between the expropriation of land on the one hand, and the expropriation (with compensation) for improvements on the land, on the other hand.

Like several other groups, the church pointed out that differences between the wording of the proposed constitutional change and the Expropriation Bill may become problematic. Pothier said that, contrary to popular belief, the church no longer owns or administers much land.

Church ‘complicit’

Dr Mbuyiseni Ndlozi of the EFF attacked the church on the complicity of missionaries in colonial dispossession as well as what he termed the church’s ambivalence regarding expropriation without compensation, to which Pothier said the church did not harbour an ambivalent view at all.

Pothier said the church did not believe the act of passing a piece of land from one person to another necessarily ensures the productive use of such land, or that anyone would derive wealth from it, as the state’s current failed land reform policy clearly proves.

The church believes expropriation must take into account justice, redress and the current and future wellbeing of the country. Pothier warned that sometimes, when you attempt to correct a wrong, you can make unintentional new mistakes.