ACDP Member of Parliament Cheryllyn Dudley today said that “the ACDP remains concerned that land reform has been mismanaged and believes that stronger and more ethical leadership on this and other issues would place South Africa in a much healthier economic position in which to deal with land reform effectively and justly”.

Concerns about the 139 private farms to be used as test cases in ‘paying below market value in land claims’ Dudley said “are understandable but this will allow the constitutional court to make a pronouncement and to guide the country in this very important matter.”

According to reports the farms listed are owned by farmers who have previously rejected government’s offers for their land. Head of the Rural Development Ministry, Mashile Mokono has said “the farms were not arbitrarily selected and would not be snatched away from the owners”. Should the farmers and the department agree on a price the farms will be purchased - offers of compensation would be prescribed by the office of the Valuer-General.

Dudley said “the intention of the ANC lekgotla appears to have been that expropriation would only apply once an offer of payment has been rejected.  Clearly pressure has been exerted in this regard and misguided policy like that of the EFF has ignited some people’s imagination that nationalisation of private property will in some way benefit them despite all evidence to the contrary.”

Tembeka Ngcukaitobi, author of ‘The Land Is Ours’, Dudley suggested “makes some useful observations and recommendations on land reform - land reform that is constitutional, respects the rule of law and puts the courts at the centre of the process to ensure it is equitable and does more than just benefit a new elite.

Tembeka Ngcukaitobi, for example, reminds us that during the drafting of the constitution it was argued that the proposed clause to protect private property and expropriation subject to ‘just and equitable’ compensation conflicted with international norms. The court however refused to endorse an unchecked right to private property and noted that no universal principle was discernible on compensation as each country had a different model, influenced by its unique history and context.  For South Africa - the court was of the view that the power to expropriate in the public interest, including for land reform, subject to payment of just and equitable compensation, was appropriate.

Expropriation for purposes of land reform have not been tested in our courts and Ngcukaitobi admits that the case for an amendment to section 25 is thin as the failure of the state to implement the Constitution, cannot be grounds to amend the Constitution.”

Dudley also said “the ACDP agrees that the failure of the state to achieve land reform has deepened the structural inequality caused by apartheid-enforced land deprivation and that urban migration (local and regional) has significantly increased the burden on local government. However, greedy landowners, property speculators, farmers who unfairly eject labour tenants, corrupt bureaucrats and under resourced and badly managed departments, must all share in the blame for the failure to justly and equitably deliver on land reform.”

Ngcukaitobi puts it like this, “Although the history of colonial dispossession is responsible for constructing a state in which race mirrors private property, this can no longer be accepted as the sole explanation for the crises. Poverty, unemployment and the poor quality of education have also drastically curtailed the ability of black people to obtain property in the open market. Race remains the stubborn determinant of whether one has property or not. This is what colonialism and apartheid achieved. But the constitutional promise was to reverse this. Hence, it is plainly and undeniably urgent for a constitutional solution to be found...”

Ngcukaitobi proposes that “Certain principles must underpin the proposed amendment to maintain the balance with the remainder of the Constitution.

  • Expropriation subject to just and equitable compensation should remain the default position.

  • Expropriation without compensation should be available in clearly defined circumstances, such as absentee landlords, unused land, hopelessly indebted land, land held by speculators, land acquired by illegal means such as corruption or fraud, and unproductive land.

  • The determination whether it is just and equitable to expropriate without compensation should be made by the courts, not politicians.

  • To avoid elite capture, expropriation without compensation should be employed solely for the three purposes underpinning section 25: to facilitate restitution, to ensure security of tenure and to ensure access to land on an equitable basis.

  • The procedures for expropriation without compensation must be clearly laid out in legislation and be subject to judicial review.

  • National legislation setting out the procedures to be followed, the powers of the state, the rights of landowners and beneficiaries and procedures for judicial review is urgent.”

Tembeka Ngcukaitobi is a human rights lawyer. He is the author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin).


13 August 2018