Expropriation without compensation matter drags on amid ANC, EFF discussions

Investors rattled by the drive to expropriate land without compensation will only likely know the final details of the proposed amendment to section 25 of the constitution or the property clause at the end of June.

The change to the constitution is being driven by the ANC and EFF, but the two parties have differed on key aspects of the amendment such as the role of the courts, compensation and state ownership. However, indications are that the two parties are now not too far apart as discussions continue. Fundamentally, however, the ANC and EFF appear to be in some sort of agreement that the courts should have a diminished role to play in expropriation matters.

The push for expropriation without compensation has raised concerns about the security of tenure among investors, which threatens efforts to rebuild the country’s economy that has been battered by Covid-19. There are fears that SA’s land reform process could echo Zimbabwe’s catastrophic land grabs of two decades ago that resulted in an economic and social crisis from which it has struggled to recover.

Parliament’s ad hoc committee that is looking into the amendment bill was meant to finalise its report on Monday, but resolved to approach the National Assembly to request an extension as the ANC and EFF try to reach consensus on the proposed amendment.   

The multiparty ad hoc committee has to draft the text of constitution to make clear that which is implicit regarding the expropriation of land without compensation, as a legitimate option to tackle skewed land ownership patterns dating back to the apartheid and colonial eras.

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An amendment to the constitution such as this will require the support of at least two-thirds of members of the National Assembly for it to pass. But because most other parties in parliament, including the main opposition the DA, are not in support of changing the constitution, the ANC will need the support of the EFF, the third-largest party in parliament, to pass the amendment.

The EFF has suggested that reference to the courts be deleted in the proposed amendment of section 25. It has also called for the removal of the clause dealing with just and equitable compensation. The ANC says the courts should, however, maintain review powers, meaning that the courts will only be involved when there is a dispute between the property owner and the expropriating authority.

The EFF also wants the 1913 cut-off date for land claims and restitution to be removed, meaning claims can go beyond that date. The year is significant as it is during that period that the Natives Land Act was passed, restricting black people from owning, leasing or acquiring land. The EFF has argued that the 1913 Land Act was not the point of dispossession but a point of confirmation in law what had been achieved through years of violent land dispossession and  exploitation. 

Furthermore, the EFF says the state should be the “custodian” of all land, which means it will hold the land on behalf of all people. While this could be seen as a form of nationalisation, the EFF says there is a difference in that under custodianship the state will not be able to change user rights as and when it pleases “because it will not own the land fully”.

ANC MP Cyril Xaba said that the party believes in mixed land ownership — private, state and communal ownership. He said whatever land is acquired it will be in the custody of the state until it is redistributed.

“The stage between acquisition and redistribution is custodianship,” Xaba said, signalling that the ANC and EFF are not too far apart on this and other matters of difference. 

EFF deputy leader Floyd Shivambu proposed the deadline for the committee’s report to be extended to allow the party to continue with its negotiations with the ANC. He also said the parties are not too far apart. 

The committee subsequently agreed to request a 30-day extension.

The DA, however, raised concern about the proposed extension.

“The extension is only being requested because the ANC and EFF cannot find common ground on extreme provisions, such as excluding the courts from adjudicating on land expropriation cases, which they are trying to smuggle into the amendment,” said DA MP Annelie Lotriet.

Agricultural industry body Agri SA said it is strongly opposed to the scaling down of the courts’ role in expropriation disputes, and even more so when it comes to expropriation without compensation.

“The proposal regarding state custodianship is absolutely frightening,” Agri SA’s Willem de Chavonnes Vrugt said. “It will send a shock wave through the agricultural sector. Agri SA is in the process of seeking legal advice on the latest proposals.”

De Chavonnes Vrugt said custodianship of land will deprive all private landowners of their property rights without receiving compensation, giving control over all private land to the state. “This is a recipe for an economic and humanitarian disaster, and an invitation for large-scale corruption.”