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ANC, EFF agree on land expropriation but not why, how to do it

2018-11-11 13:00

The ANC and EFF agree land should be expropriated without compensation, but not on why, or how to do it

The Constitution is to be changed soon to simplify and expedite expropriation of land without compensation, but the ANC and Economic Freedom Fighters (EFF) differ completely on how and to what end it should be done.

This has emerged from the draft observations and recommendations of the ANC and EFF, respectively, as they gave their inputs into the decision of Parliament’s Constitutional Review Committee, which aims to finish its work this week in order for the National Assembly and National Council of Provinces to debate and vote on its findings before the end of the month.

Huge differences have emerged in the committee on how the issue should be handled.

The ANC, EFF and UDM are firmly on the side of expropriation without compensation, the IFP is more difficult to place (but on the record that they oppose it) and the DA, Freedom Front Plus, ACDP and Cope are firmly opposed, especially to changing the Constitution.

Parties have until 4pm tomorrow to finalise their inputs, but according to the draft inputs of the ANC and the EFF, copies of which City Press has seen, a change to the Constitution is definitely on the cards, and soon, although the ANC and EFF differ markedly on how and why it should be done.

In its draft input, the ANC notes differences of opinion on whether the current Constitution is an impediment to land reform and on whether it allows for expropriation without compensation.

The governing party also acknowledges that differing views exist on whether title deeds (private ownership) or state custodianship of land is preferable.

ANC vs EFF

ANC

The governing party’s draft finding is that Parliament must urgently amend section 25 of the Constitution ... that all legislation related to land reform must be enacted urgently and that security of tenure for farm workers, farm tenants and those residing on communal land in trust must be assured.

EFF

The EFF claims that the wealthy are in the pound seats because litigation favours those with property. It disagrees with section 25’s definition of what is just and equitable, and argues that it is very unlikely that ‘just and equitable compensation’ would ever mean no compensation would be paid.

What the ANC is completely convinced of is the urgent need to expedite land reform programmes, and that the impact of any land reform law on the economy, food production, agriculture, investor confidence, exposure of banks and emerging farmers must be carefully calibrated.

The ANC concedes that the lack of state capacity to implement land reform must be addressed, and is adamant that both dignity and cultural practices must be protected.

The draft ANC recommendations firstly state that section 25 of the Constitution (the so-called property clause) must be amended to make explicit what it regards to be implicit already with regards to expropriation of land without compensation, as a legitimate option for land reform.

This is to address the historic wrongs caused by the arbitrary dispossession of land, and in so doing assure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agriculture reform programmes.

The governing party’s draft finding is that Parliament must urgently amend section 25 of the Constitution, that Parliament and Cabinet must ensure that all legislation related to land reform must be enacted urgently and that security of tenure for farm workers, farm tenants and those residing on communal land in trust must be assured.

In its draft input, the EFF notes land hunger across South Africa, especially from dispossessed Africans.

It holds that present land reform programmes have done little to change the shape and identity of land ownership.

According to the EFF, land is identity and nationhood, not just property, and restoration of African land ownership is necessary to combat the effects of colonisation and colonialism.

The party in red points out that many of the South Africans who made oral inputs at the public hearings on expropriation without compensation believe the current Constitution does not appreciate the deleterious effects of dispossession, and that the Constitution favours the dispossessor over the dispossessed.

The EFF argues that the negative wording of section 25 precludes the imperative of restorative justice, and is specifically opposed to section 25(2)(b), which says expropriation must be accompanied by compensation.

Given that the courts currently have the final say on compensation where expropriation is effected, the EFF claims that the wealthy are in the pound seats because litigation favours those with property.

Furthermore, the EFF disagrees with section 25’s definition of what is just and equitable, and argues that it is very unlikely that “just and equitable compensation” would ever mean that no compensation would be paid.

The party points out that the South Africans who argued during the public hearings that the Constitution already implicitly allows for expropriation without compensation did not explain why, if this is the case, they are not in favour of the explicit clarificatory amendment thereof.

According to the draft EFF document, the party concedes that the capacity of the state and potential corruption by state officials can be cited as problems regarding state-led land reform.

The core of the party’s view is encapsulated in its final observation: private land ownership entrenches inequality.

The EFF’s recommendations closely mirror its land policies as contained in its seven policy pillars, although at times it seems contradictory.

These uncertainties are sure to be ironed out as the ad hoc committee discusses the different parties’ inputs later this week.

Firstly, the EFF recommends that the Constitution be changed to allow for expropriation without compensation, and that this be done before the 2019 elections.

It also wants land, water and natural resources to be nationalised and administered by the state on behalf of the people.

Also, the EFF will argue that the state must take steps to make land more accessible, taking into account racial imbalances in land holding.

It envisages a land redistribution bill which must be passed as soon as possible, and which would create an independent state land management agency.

The party believes in land ownership ceilings, and the institution of an independent land ombudsman to ensure people’s land rights are not violated by the state.

It is the EFF’s demand that a bill to change the Constitution be finalised by the end of the year, that a separate bill be passed to protect small-scale farmers and ensure the state procures products from them, and that a moratorium be placed on large-scale land purchases in anticipation of the change in the Constitution.

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November 10 2019