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What played out in Parliament this week was historic: the ANC and the Economic Freedom Fighters (EFF) joined forces and called for the expropriation of land without compensation. The motion called into question the constitutional settlement and provoked both triumphal delight and defensive anxiety as South Africans revert to polarised positions on land and property.
The motion established an ad hoc Constitutional Review Committee, comprised of different political parties, to “review and amend section 25 of the Constitution to make it possible for the state to expropriate land in the public interest without compensation”.
But the Constitution already makes it possible to do so. The Constitutional amendment is not needed. If it is “just and equitable” that compensation be set at zero, that is allowed under the existing “property clause”. The litmus test is what is just and equitable in a given case.
This is a reality that has been glossed over in the populist push towards blaming the Constitution for political failure.
While many applauded the unprecedented agreement between the ANC and the EFF, we need to recognise their key ideological differences.
In its resolution at its 54th national conference at Nasrec in December, the ANC called for land expropriation without compensation to be “included among the mechanisms at our disposal”, and did so again during the president’s state of the nation address two weeks ago. So the ANC is proposing that government should have this as one option among others – such as buying on the market, negotiating, expropriating and paying compensation.
The EFF interprets “expropriation without compensation”’ as not just one option for the state, but that it is to be applied across the board. The EFF wants the state to be the “custodian of all South African land”, which is ironic given its own experience of how state power has been used and abused.
State custodianship is an entirely different matter from expropriation with or without compensation in specific cases. It is doubtful that the two parties can find common ground on this.
Which land will be affected? The EFF has now said that expropriation without compensation should apply only to rural land (and presumably commercial farmland, rather than to communal areas). Nobody will lose their houses or flats.
Yet, at present, the “property clause” applies to all forms of property – commercial farmland, residential homes, informal land rights and property other than land, including stocks and bonds, pensions, intellectual property and other assets.
This will have to be one of the issues addressed by the committee. Would it be permissible for the Constitution to allow different standards to apply between those who own farms versus those who own houses?
The property clause constitutes a powerful mandate for transformation: expropriation, land redistribution, restitution and security of tenure, and it explicitly states that no provision can impede the state from embarking on reforms to address historical inequalities.
The notion of a right of “equitable access to land” establishes property rights for those without property. This constitutional framework imposes a positive obligation on the state to provide suitable land and housing for the landless and homeless, empowering them to press their claims, and shape the behaviour of state officials to facilitate a responsive land reform. But it has been an uphill struggle in practice.
The motion in Parliament is about providing greater powers for what the state may do. But given the track record of the past 24 years, it is clear that we have a state that, to make it listen, must be cajoled and pleaded with, repeatedly taken to court, protested against and punished at the polls.
Those whose land claims are still languishing in limbo, the farm dwellers evicted without recourse, the landless pleading for access to farms, the millions living insecurely in informal settlements are concerned with what the state does not do. And what it has not done to date is override private property rights in the interests of the poor and the dispossessed.
In the Mala-Mala land claim case in 2013, I wrote an affidavit arguing that the Constitutional Court should make a finding on “just and equitable” compensation. Advocate Tembeka Ngcukaitobi was the counsel in the case. The purpose was to ask the court to interpret the property clause and set a precedent that could drive down the cost of getting land.
But, at the last moment, then Rural Development and Land Reform Minister Gugile Nkwinti withdrew the case and agreed to settle for the asking price of nearly R1bn. At the time, this was about one third of the national budget, which went to pay out one white family.
The settlement showed political cowardice and disdain for the public interest and the Constitution. This is the kind of action that makes most South Africans’ blood boil. How can our public funds be used in this way? It was neither just nor equitable – and it was not the Constitution’s fault, either. It was the decision of the governing party not to use its constitutional powers.
In contrast to this pussyfooting around private property, government routinely dispossesses poor and black people of their land in informal settlements. Having also failed to secure customary land rights in law and practice, government has allowed traditional authorities to do so in communal areas. Having also failed to enforce tenure rights for farm dwellers, it has allowed more than 2 million people to be displaced from farms. This means that expropriation of land rights without compensation is happening on an ongoing basis – but it is poor and black people whose rights are being expropriated.
In my view, changing the Constitution is neither necessary nor sufficient to advance a truly progressive land reform process.
It may appear that there is convergence between the ANC and the EFF, but this is a mirage. Yet the current moment offers an opportunity to open up a wider conversation across society. Let’s debate this. What is the alternative to expropriation with “just and equitable” compensation?
Can and should the Constitution say “no compensation” as a blanket rule? Should the land rights of the poor and the rich be treated equally or in different ways? Should the law allow for discrimination by race when land is expropriated? Should it be expropriation with zero compensation for everyone? Or expropriation with compensation for some and zero compensation for others?
More than half of commercial farmland has changed hands since 1994 – so, should those who bought property last year be treated the same way as those who inherited land from across the generations? Who should be prioritised for land access? How are the rights and interests of owners, tenants and occupiers to be weighed up? How can the state be held to account? These are the questions that should animate the debates in Parliament and on the streets in the coming months. The real debate starts now.
At its root, the demand for expropriation without compensation is a demand that white people should not benefit again from colonialism and apartheid. That seems entirely fair. A pro-poor land reform process could have been implemented after 1994, but has not been.
Now there is an opportunity to open up a wider debate about land rights and economic justice. The Constitutional Review Committee will have to seize on its mandate and broaden the debate across society.
- Hall is a professor at the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape
