November 23, 2020

Constitutional amendment process for expropriation without compensation revived

Amending the Constitution to allow for land expropriation without compensation is back on track, reports MARIANNE MERTEN of the Daily Maverick. The National Assembly adopted the motion for this, although not without some heated words and a vote that fell 189 for and 67 against.

In its last sitting before a three-week recess on Thursday 25 July, the National Assembly revived the pre-election ad hoc committee to amend Section 25 of the Constitution, dubbed the property clause. Parliamentary rules require such a motion so the current crop of MPs can continue where the last Parliament left off as it rose in late March ahead of the May poll.

That initial constitutional amendment committee was briefed by experts like advocate Tembeka Ngcukaitobi and Professor Ruth Hall – both also served on the presidential panel of experts on agriculture and land reform – but its work was nowhere completed amid heady electioneering ahead of the May poll.

National Assembly revived the pre-election ad hoc committee to amend Section 25 of the Constitution.

Coincidentally, that first constitutional amendment ad hoc committee chairperson, Thoko Didiza, is now minister of agriculture, land reform and rural development. On Sunday she’s set to brief on government land plans and the report of the Expert Advisory Panel on Land Reform and Agriculture that reached Cabinet after it was handed to President Cyril Ramaphosa in early June, some nine months after the panel was established. Ministers have had two months to study the report and recommendations of the panel’s report and give feedback, according to Thursday’s media briefing on the Cabinet meeting by Minister in the Presidency Jackson Mthembu.

Some four hours after that briefing, the national legislature took its own steps. The motion to revive the constitutional amendment process was widely expected; it carries on with the pre-election work based on the earlier, and unprecedented, public hearings at 34 venues across the country where compensationless expropriation emerged as shorthand for socio-economic justice.

An 11-strong multi-party voting ad hoc committee is expected to resume the constitutional amendment process once MPs return from recess on 20 August. The work, to be completed by 31 March 2020, must “make explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform, so as to address the historical wrongs caused by the arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programs…”.

The motion tabled by ANC Chief Whip Pemmy Majodina in isiXhosa was followed by declarations in the House that effectively (re)drew the battle lines of the constitutional review and constitutional amendment ad hoc committees. With the DA, IFP and ACDP among those against the motion, the EFF and ANC, while having different approaches, united with the support of the PAC in favour. The ANC benches erupted in song during the five minutes the bells were rung ahead of the vote. The EFF joined in.

The vote of 189 for the constitutional amendment process to resume, 67 against with no abstentions has signalled what will unfold in Parliament.

Earlier during the declarations, DA Chief Whip John Steenhuisen cautioned a constitutional amendment was nothing but a plaster on a 20-year failed track-record of land reform and restitution. “What this motion is… is the greatest hoax perpetuated on the people of South Africa,” said Steenhuisen. “This plaster that you are trying to use, is a smokescreen of the government failures of the last two decades.” Other opposition parties echoed such sentiments. IFP MP Elphas Buthelezi said while the party supported land reform – and bigger budgets for that – expropriation without compensation was not a solution. “We cannot use such a sensitive matter to play politics.”

ACDP MP Steve Swart described the constitutional amendment process as “a fraud” that would leave South Africans disappointed.

Freedom Front Plus leader and MP Pieter Groenewald put it bluntly: “If you allow the Constitution to be amended… you put South Africa on the same path as Zimbabwe. Mark my words”. While ANC MP Mathole Motshekga outlined the human rights violations of land dispossession as far back as the Khoi-San – saying the motion was needed “for redressing of the injustice of the past and the recovery of the dignity of people, both black and white,” EFF MP Hlengiwe Mkhaliphi bluntly told the governing party it would be watched to prevent a dilution of the constitutional amendment. “We [the EFF] are here to ensure we will get our land back to the rightful owners, which are the black people,” said Mkhaliphi. The House now had the opportunity “to allow the natives who have lost so much to reclaim their dignity… by getting their land back,” she added. “No longer shall we be treated like slaves in our own land. Never.”

Politically, the 31 March 2020 deadline is an eternity. It provides plenty of opportunity for politicking and point-scoring ahead of 2021 local government election campaigning.

Practically, it’s a very, very tight deadline. Given recesses, constituency periods and holidays, effectively six months are available for this constitutional amendment process. It took some eight months to pass the 14th and 15th Constitutional Amendment Bills to remove floor-crossing in November 2008 – and that was a matter every political party had agreed with. The divisions on expropriation without compensation are deep, ideologically, politically and practically. The DA, IFP, Freedom Front Plus and ACDP are opposed, pushing rather for better financial allocations for land reform and restitution, title deeds and security. And while the EFF and ANC seem to be on the same side in the compensationless expropriation fault-lines – both their numbers are needed to hit the two-thirds majority threshold in the House – there are significant and deep-seated differences. The EFF, in its policy manual, wants nationalisation so the state owns all land, and while there is a political co-operation with the ANC, the governing party regards compensationless expropriation as one instrument for land reform and restitution. Or as the resolution of its December 2017 Nasrec ANC national conference states: “Expropriation of land without compensation should be among the key mechanisms available to the government to give effect to land reform and redistribution. In determining the mechanisms of implementation, we must ensure that we do not undermine future investment in the economy, or damage agricultural production and food security. Furthermore, our interventions must not cause harm to other sectors of the economy…

“Concrete interventions are required to improve the functioning of all three elements of land reform. These interventions should focus on government-owned land and should also be guided by the ANC’s Ready to Govern policy document which prioritised the redistribution of vacant, unused and under-utilised state land, as well as land held for speculation and hopelessly indebted land…”.

And the ANC has pretty much stayed on message since then, be it President Cyril Ramaphosa’s late-night unprecedented television address as party president after an ANC lekgotla on 31 July 2018, or the State of the Nation Addresses or question time in the House, be it for ministers, the president or his deputy.

Whether the land expropriation without compensation constitutional amendment turns out to be a scarecrow, or a fertile furrow, Parliament will have to weather the political storms. DM

Marianne Merten

This article first appeared in the Daily Maverick.

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  • Author: Moira Levy
Last modified on Friday, 26 July 2019 21:10

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