Section 25 of Constitution unchanged – land debate continues

Section 25 of Constitution unchanged – land debate continues

MAIN IMAGE: Ronald Lamola, Minister of Justice;  Tony Clarke, MD of the Rawson Property Group; Maryna Botha of STBB Attorneys; Prof Elmien du Plessis, Associate Professor in law at the University of Northwest

Danie Keet

After three years of intense debate and politicking, the National Assembly yesterday afternoon voted against changing the Constitution to (explicitly) provide for expropriation of land without compensation. Thus the “property clause” in the Constitution, section 25, remains unchanged – for the time being.

“The proposal failed to win the two-thirds of parliamentary votes that it needed on Tuesday, 7 December. Lawmakers debated whether to change Section 25 of the Constitution to enable authorities to seize land to address racial land inequalities left over from colonialism and White minority rule. The proposal was rejected by the ANC’s opponents on both sides of the spectrum. The main opposition Democratic Alliance (DA) and right-wing Freedom Front Plus view the plan as an assault on property rights, while the radical Marxist EFF – which also voted against – wants the state to take control of the land,” commented S’thembile Cele and Paul Vecchiatto on Moneyweb.

The ANC decided four years ago that constitutional changes were needed to address racially skewed land-ownership patterns dating back to colonial and White minority rule. While some legal experts said land seizures were already permissible, the party argued that the issue needed to be addressed more explicitly.

Justice Minister Ronald Lamola said changing the constitution was just one instrument they could  use, but that the matter has now ended. ”We will now use our simple majority to pass laws that will allow for expropriation without compensation.”

He said that most land remains in the hands of the White minority and the status quo is unsustainable, posing a threat to national stability. “We need to have fair and equitable land redistribution,” he said. “While a lot of the land redistribution has centred on rural areas, the real need is in the semi-urban and urban areas.”

Most opposition parties warned that the ANC’s proposals would undermine property rights and investor confidence, while the populist EFF said they didn’t go far enough. The ruling party controls 58% of the 400 seats in the National Assembly, and more than a third of lawmakers rejected its proposed constitutional amendment bill.

Samuel Seeff, chairman of the Seeff Property Group, said  he is on record as a leading voice stating that the protection of property rights is critical to the economy and property market.

“People want to invest in an economy and property market where they know that their investment is secure and protected. That is not to say that land reform should not take place, it should, but within the appropriate legal framework which we understand from legal experts has in fact been in place since the dawn of our new democracy.

“While we welcome the decision not to change the property clause in the Constitution, we also note that there has always been the right to expropriate under the correct circumstances for the benefit of the public etc.

“In large part, the matter has been overshadowed by politicking around the issue which may have created concerns with buyers and investors. In truth, other than Zimbabwe, expropriation has not been a big factor in Africa and elsewhere and certainly has not applied to residential property.

“My view is that while there has been extensive and loud political rhetoric around expropriation without compensation, in practicality, as Seeff has maintained all along, there has not been a strong threat to property rights. While the potential expropriation threat was more about politics, the decision not to amend the Constitution should nonetheless be seen as a positive for the property market. It is one more thing that a potential buyer who may have been concerned about the security of their property investment, can now remove from their minds,” Seeff said.

Tony Clarke, Managing Director of the Rawson Property Group, reacted: ””We’re pleased with the outcome of the National Assembly. This amendment went through a review process for the last 3 years and after yesterday’s decision it has become blatantly clear that our democracy works.

“Property ownership is a fundamental human right protected not only by our Constitution – which is one of the most highly regarded in the world – but also by international law and several international human rights conventions. Our courts, and the Constitutional Review Committee, have taken this into consideration and I believe has made a sensible decision keeping our democracy, political stability, and economy intact.

“The last thing we needed is further strain on the South African economy and our agricultural sector. Property rights should be protected to encourage healthy growth and development of our economy rather than it being undermined,” Clarke said.

According to Maryna Botha of STBB Attorneys, this is good news for investors and banks. However, a ruling party that secures a two thirds-majority in the House of Assembly in the 2024 general elections may again push for this amendment.

“In any event, an amendment to section 25 or other clauses of the Constitution is never ‘off the table’. The debate may be raised again at any time since the Constitution has sections that allow for amendments, in certain strict circumstances. Bear in mind further that the issue of Rnil compensation is likely to be aired again when the current Expropriation Bill is finalised.

“This Bill has been on the cards for a while now and seeks to repeal and replace the current 1973 Expropriation Act. In the current form of the Bill, provision is made for considering various factors when land is expropriated for land reform, in line with the Constitution. In so doing, and in very specific circumstances outlined in the Bill, Rnil compensation is foreseen. The Expropriation Bill is ordinary legislation that is still in the making and as is the norm, will make explicit what is implicit in the Constitution,” she explained.

Botha said it is important to note that this was not a vote for or against land reform. Most political parties and South Africans agree by now that land reform is important and necessary, although disagreement remains on what land reform should look like. It remains important to focus on establishing successful land reform programmes within the rule of law and to bring meaningful change to people despite this amendment not going through.

“Commentators mention that, although a long three-year period has lapsed before the National Assembly finally voted against the amendment to section 25 yesterday, land reform planning did not stagnate in this time. For starters, it had put the discussion on the forefront and in the minds of many South Africans. In this period, a Land Court Bill has been published, to provide for a specialised court to deal with land reform matters. Justice Minister Lamola has also recently repeated talk of a Redistribution Bill and about finalising the Communal Land Rights Act.

“These are probably the result of the intense debates around section 25 of the Constitution and are steps to support the promotion of land distribution within the legal framework,” she said.

In an earlier attempt to stop the passing of this bill, an international alliance of 33 civil society groups from 28 countries earlier endorsed an open letter to the people of South Africa, declaring its solidarity with them against the South African government’s plan to amend section 25 of the country’s Constitution to allow for the confiscation, and even nationalisation, of private property without compensation.

The letter is an initiative of the Property Rights Alliance (PRA), an international network of think tanks and associations that publishes the widely cited International Property Rights Index on an annual basis.

“Property rights are the backbone of any free society. Removing property rights means removing the most important guarantee of freedom for each person. Property rights are the lighthouse of any democracy,” says Lorenzo Montanari, Executive Director of the PRA.

“We thank the PRA and every signatory of the letter for their solidarity with the people of South Africa, who by now have exhausted all avenues for reasonable discourse with government to get it to abandon this ill-fated policy,”, adds Chris Hattingh, Deputy Director of the Free Market Foundation, the PRA’s partner in South Africa.

The letter recounts the denial of property rights during the colonial and apartheid eras in South Africa’s history, and how the adoption of section 25 of the Constitution marked a positive, radical departure from this legacy. Government is required by section 25 to not only respect property rights, but also promote and expand property rights to those who were denied it. Amending the provision to do away with the internationally accepted principle of compensation upon expropriation weakens the right to property unacceptably and harkens back to an apartheid mindset.

Amending section 25 will not solve the country’s current land reform challenges. “The government program seeks to appeal to populism to mask the failure of the government to release state land for personal and commercial use,” notes the letter.

South Africa’s investment potential, human development, economic freedom, and constitutional legitimacy will suffer if the government persists with its confiscation plans.

Montanari said the people of South Africa should be supported by sympathetic organisations around the world, as well as by the international community of nations. He said the world rejected authoritarianism in South Africa in the last century and must do so again.

Prof Elmien du Plessis, Associate Professor in law at the University of Northwest, who has played a major role in the whole debate around expropriation, said most parties would agree that land reform is important and it’s necessary.

“I think they might still disagree on what land reform looks like but it’s not as if the door is shut to having a conversation on land reform. It is important to realise that Section 74 of the Constitution makes it possible to amend the Constitution, so that’s always a possibility. I also think the issue of nil compensation will still be debated again when the Expropriation Bill comes before Parliament. That’s ordinary legislation that’s still in the making, and that will make explicit what is implicit in the Constitution.

“If land reform does not happen it also undermines the legitimacy of the Constitution so it’s very important that we as citizens now put all our focus into ensuring that we have a successful land reform programmes within the rule of law… to bring meaningful change to people despite this amendment not going through,” she said in reaction to the dismissal of the proposal.

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