Land reform remains one of the most charged issues in South Africa today. In this extract taken from the thoughtful and provocative, Land Matters, Tembeka Ngcukaitobi sheds light on one of the most complex questions in South Africa today.
“The ANC supported the confirmation of the 1996 Constitution, which contained no positive right to property, allowed expropriation of all property in the public interest and for public purposes, and rejected market-based compensation.
Despite these successes in the design of the Constitution, soon after it was adopted, policy decisions favoured market-based approaches, the tool of expropriation was never used, and the position of rural farm dwellers was not given priority. It was manifest that the system would implode from within. These failures of land reform are often blamed on the Constitution’s supposedly restrictive design. Although it could be argued that the framework is restrictive when applied in the real world, one must recall that the negotiations largely favoured the ANC’s positions. In that sense, at least, the Constitution is the wrong target. Post-liberation politics and the adoption of market-friendly policies have failed the Constitution’s ambitious socially redistributive and inclusive goals.
It is not as if limits in the law are a bad thing. Legal constraints to governmental power are necessary. We know from experience that what has slowed down the transformation of property relations are design flaws in legislation, inefficiencies of the land administration system, endemic corruption and the misapplication of the Constitution, particularly the slavish adherence to the market-driven compensation formula. For its part, the Constitution was designed to be open-ended and transformative. In the first decade of the new dispensation, Pius Langa, then deputy chief justice, explained:
It seems to me that our Constitution expressly avoided the approach to the calculation of compensation set out in the Expropriation Act, which has been the approach in South Africa for many years. In my view, the Constitution expressly insists upon a different approach – one which makes justice and equity paramount, not as a second-level ‘review’ test but as the test for the calculation of compensation.7
Despite all of this, the dominant political view today is that Section 25 should be amended to allow for expropriation of land without compensation. When the discussion was first introduced, the motivation for the amendment was that Section 25 constrains the transformation of property relations. The ANC’s resolution of December 2017 makes this plain. First, the ANC committed to ‘pursue with greater determination the programme of land reform and rural development as part of the programme of radical socio-economic transformation’.8 Expropriation of land without compensation then emerged as one of the mechanisms to achieve the goal of ‘giving effect to land reform and redistribution’.
“If the Constitution allows, implicitly, for the compulsory expropriation of land without compensation, then why amend it rather than enforce it?”
Arguments were put forward indicating that Section 25 already provides for the expropriation of land at less than market-value prices. The justification for the amendment has now shifted somewhat. The preamble to the draft amendment bill records that the intention behind the amendment is to ‘make explicit that which is implicit therein, so that an amount of nil compensation is explicitly stated as a legitimate option for land reform’. The weakness in this explanation is self-evident. If the Constitution allows, implicitly, for the compulsory expropriation of land without compensation, then why amend it rather than enforce it? Despite these questions, which have not been seriously engaged with, the ANC might as well resort to its majority status in Parliament and push for the amendment, together with any of the opposition parties in support of the proposed amendment. If we accept democratic outcomes, in the language of politics, the amendment might make sense as a political response to pressure from below.
The proposed amendment might pass the political standard. Yet it remains an open question whether or not it also satisfies the constitutional test of rationality. The Constitutional Court has ruled that the requirement of rationality as a constraint to the exercise of public power ‘applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution’.9 Parliament can establish the rationality of the amendment in various ways. First, it can show that the amendment is related to a legitimate purpose. It has been suggested that the amendment fulfils a clarificatory function: ‘making explicit what is implicit’. Another justification has pointed to the slow pace of land reform. There is some doubt about the rational cogency of either explanation. To begin with, there is no evidence of confusion as to the constitutional permissibility of expropriation with no compensation – this is a matter of interpretation. At the present moment, no case has been brought to the courts testing the proposition. The second explanation is not satisfactory either. Compensation has not blocked land reform, but other factors have. To be constitutional, better explanations are needed why the amendment meets rationality standards.”
Extracted from Land Matters by Tembeka Ngcukaitobi, out now.
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Extract: History of South Africa by Thula Simpson