Expropriation with(out) compensation: unpacking the issues (part 2)

MAIN IMAGE: Elmien du Plessis is an Associate Professor with the Faculty of Law at North West University.

It appears unlikely that we’ll see an amendment to the Constitution on the section concerning land expropriation without compensation before the general election in 2019, should the ANC take this route. Elmien du Plessis, Associate Professor in Law at North-West University, explains why and clarifies what it will take to make any changes to the Constitution.

The consistent message that has come through in written communication from the ANC’s 54th National Conference last December through to the motion and, most recently, via President Cyril Ramaphosa, is that land reform must not harm the economy, it must not undermine food security, and it should not damage agricultural production.

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Ramaphosa and many other ministers have spoken out publicly against land occupations. The President has made it clear that ANC policy is not nationalisation, like the EFF policy, but rather securing land rights and transferring of title where applicable. In urban areas this therefore means that the ANC envisions giving title deeds especially to people in so-called RDP houses.

Ramaphosa said that the ANC acknowledges that the Constitution does not prohibit expropriation without compensation under certain circumstances, but nevertheless wants it clarified in the Constitution. Indications are that what is being discussed, is the addition of a few words in Section 25(8) to read:

No provision of this section, OR THE PAYMENT OF COMPENSATION, may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

Such an amendment will not have a profound legal effect.

What does it take to change the Constitution?

For the Constitution to be amended, the Constitutional Review Committee must report back to parliament whether it thinks it is necessary to amend Section 25 (and other provisions) of the Constitution. It asked for an extension until end November to consider the oral submissions made in the provinces and in parliament, as well as the written submissions received. The Committee will then make its recommendation to parliament whether Section 25 needs to be amended or not. A leaked report shows that while most of the people at the provincial submissions are in favour of an amendment, most of the written submissions were against it.

Any amendment of the Constitution needs to take place in terms of Section 74 of the Constitution. The Department of Justice will introduce a bill to amend the Bill of Rights. The National Assembly with the support of two-thirds of its members, needs to pass this bill. The National Council of Provinces also needs to pass the bill, with the support of six of the nine provinces.

Some commentators argue that expropriation without compensation goes against the founding values of the Constitution and therefore requires 75% support for the Constitution to be amended. The only valid argument in this regard, however, would be if there was no recourse to the courts in a case of expropriation. But as shown above, it is not envisioned that there will be no recourse to the courts. The founding values of the Constitution will also be affected if there is an infringement of the rule of law, for instance if arbitrary deprivation of property (i.e. deprivation without a legal reason, or that is not applicable generally) is allowed. Again, this is not what the ANC envisions.

The ANC does not currently have the required two-thirds majority in the National Assembly to pass the bill, so it would need the support of other parties. The EFF has been pushing for nationalisation, so it is not certain that they would support the ANC in such a vote. The IFP could only support the ANC if such a provision does not involve traditional land. The DA would not support such a motion. And since we are a democracy, the ANC cannot push through such an amendment without the needed support.

Any amendment unlikely to happen before the elections in 2019

There are also procedural requirements, of which the public participation requirement is perhaps the most important. If a bill is introduced to parliament, there will be another round of written comments on the amendment. The Constitutional Review Committee’s hearings will not suffice for this purpose. The question currently before the Committee, i.e. whether the Constitution should be amended or not, differs from the issue that will be on the table with an amendment bill. The Constitutional Court has been clear that the greater the public interest in legislation, the more onerous the obligation to ensure public involvement.

Once an amendment is passed in terms of Section 74, it cannot be challenged on the basis of unconstitutionality. The provision then becomes part of the Constitution itself, and the Constitution will then be read as a whole, with provisions read in harmony with one another.

Such an amendment, if this is the road the ANC wishes to embark on, is unlikely to happen before the 2019 elections. The likelihood of the Department of Justice introducing a bill before March 2019 is slim. And if it does, a bill usually takes six to nine months to be promulgated. This would take us to early 2020.

So, what to do in the mean time?

A good start is to encourage the government to enact the current Expropriation Bill without further delay. This bill, which will replace the Expropriation Act of 1975, was withdrawn pending the completion of the work of the Constitutional Review Committee – it allows for land to be expropriated in the public interest, for ‘just and equitable’ compensation.

Such legislation should set out the instances where R0 compensation can be paid. In the talks so far, nothing has been mentioned about residential property, other than abandoned inner city buildings and informal settlements. Enacting the Expropriation Bill in its current form will streamline the expropriation process and provide greater certainty to land owners and investors.

In addition, government should also seriously consider the findings of the well-researched and balanced report produced last year by the parliamentary High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change. The panel, headed by former president Kgalema Motlanthe, found that the pace of land reform in South Africa has been slow, and recommends various pieces of legislation to provide a framework for land reform.

Since land reform relies on the political will to implement it, rather than a change to the Constitution, we need to encourage government to start implementing the existing legislation so that we address the inequalities in terms of land holdings in South Africa. A more equal society will be a more stable society.

Readers raise concerns about risk to residential properties

Following on last week’s article some of you raised concerns about risks in certain instances to privately-owned property. One issue raised was whether expropriation could for example affect the owner of a large property situated in the northern suburbs of Johannesburg where the owner’s house only occupies a section of the property and the balance of the land is vacant although cared for as a beautiful garden.

Prof. Du Plessis says in response that the chances of such a property being affected is very small, she believes the focus in the cities will more probably be on properties where there are already informal settlements.

Another issue raised was concerning property owners who own more than one property in a trust and where most of these properties are rented out. Prof Du Plessis says no she doesn’t believe there is cause for concern here.

For more on the risk to residential property read what Prof Du Plessis said in “Expropriation with(out) compensation: Unpacking the issues”

Do you have any further queries on land expropriation without compensation? Feel free to send your questions (and comments) to editor@propertyprofessional.co.za.

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