No need to wait for land hearings to end, lawful expropriation can start now – Lamola

Government departments and entities already have the means to test the Constitution and the expropriation of land within existing law, ANC national executive committee (NEC) member Ronald Lamola has said.

Lamola – who sits on the ANC's subcommittee on economic transformation – was the keynote speaker at the ANC Western Cape's land summit in Stellenbosch on Friday.

The party's youngest NEC member told attendees that the Joint Constitutional Review Committee hearings being held around the country into the emotive issue were to get input on gaps in existing law, but defended the Constitution as a "proper transformation document".

"We don't believe the Constitution is a sellout document. What is needed is that the issue of land expropriation needs to be properly spelt out. We need to provide clarity.

"All those [state] institutions already have powers to expropriate, so they don't need to wait for the public hearings [to end].

"We can exercise that power now. Those who have the power to expropriate within the bounds of the Constitution, they can proceed."

The way forward therefore is to finalise the passing of an expropriation bill that will set out the processes through which land can be expropriated within existing law and improving the regulation of the land claims process, or restitution, he said.

These were some of the key themes highlighted during the party's national summit held two months ago. 

Land claims process too bureaucratic

Lamola – a lawyer by trade – said that the problem with the land reform project over the last two decades had been two-fold.

The registration and transfer process of land claims has been too bureaucratic for ordinary citizens, and takes too long, in many cases, decades. Secondly, departments have been expropriating based only on market-related prices.

"The departments of human settlements, basic education, public works; they have expropriating powers, as well as various state agencies like (roads agency) Sanral and Eskom," he told journalists outside the venue following his speech.

"The challenge has been the use of market-related prices, which is not what the Constitution demands when you want to expropriate."

LAND OVERVIEW: Section 25, to amend or not - the people continue to speak

The ability to identify and expropriate will stay the responsibility of the executive arm of government in charge – be it local, provincial or national – as is the current law, he said.

Cooperative Governance and Traditional Affairs Minister Zweli Mkhize would also be holding a summit to inform municipalities and mayors that they can expropriate based on the current provisions, he said.

The outcome of the party's national summit, held two months ago, also resolved that President Cyril Ramaphosa would appoint a task team to assist with the land reform project as it currently stands.

The real test will ultimately come when case studies are tested in the Constitutional Court, Lamola added.

'Land ownership should be mixed'

During his speech, Lamola maintained that the ANC did not believe in transferring all land to the state. Rather, ownership should continue in a mixed fashion with an emphasis on title deeds, or at the very least, another form of security of tenure.

"There must still be title deeds, to secure private deeds. Our policy is a mixture of ownership.

"The fact is the economy of the country is a mixed economy. In a mixed economy, you cannot have all the land of the country owned by the state."

The state can thus identify the land that can be considered communal or "commonages" for the purposes of land expropriation, with the intention being to provide title deeds and security to those with customary rights.

The party hopes to have 22 million people currently living on communal land with communal rights to receive security of tenure and for 72% of all land to be used agriculturally.

Another speaker, WA Mgodi, who served on the land reform commission from 1998 to 2003, said there was already precedent for the expropriation of public land considered to be a "commonage".

Partial tracts of a golf course in Durbanville, Cape Town, had been used to build approximately 15 houses, he said. The land, like most recreational golf courses, belonged to the municipality.

The City of Cape Town, therefore, needed to give its approval, and struck a deal with the golf course that some of the proceeds would go to the golf course.

Mgodi said that commonages by definition already belong to the state, and therefore expropriation is an option within the ambit of the current law.