By Farai Mtero

The National Assembly re-established the Adhoc Committee to amend Section 25 of the Constitution since the original committee could not continue its work on the 18th Constitutional Amendment on expropriation of land due to the Covid-19 national lockdown.

This brings back onto the agenda a highly contested and divisive issue amongst South Africans.

The point of contention in the debates on expropriation is around the extent to which it is possible under the current constitution for the state to expropriate land in pursuit of land reform.

Often neglected are key questions on who will benefit from the land once it is acquired or the possibility of land belonging to the poor being expropriated, especially in the former homelands where land rights remain weak.

Some analysts have argued that the constitution in its current form is sufficiently transformative and the problem lies in the state’s failure to effectively use expropriation powers at its disposal to effect land reform.

These commentators argue that the ‘willing buyer, willing seller’ approach is not a constitutional requirement.

Instead, South Africa’s market-driven land reform is essentially a deliberate policy choice, consistent with the post-apartheid, neo-liberal national economic growth path, adopted under the auspices of the Growth Employment and Redistribution (GEAR) programme.

A contrary view is that the protection of private property rights in the constitution inherently shields property owners from any redistributive programme and that this remains the primary obstacle to redistributive land reform.

In this sense, the constitution, in its current form, is seen as entrenching the unequal land ownership patterns.

Whatever the case may be, the 18th Constitutional Amendment Bill represents an opportune moment to clearly define the state’s expropriation powers in relation to the rights of the expropriated.

However, the current draft of the 18th Constitutional Amendment does very little to clarify key issues that have presented challenges in land reform. If left unresolved, these issues could make expropriation ineffective as a mechanism for land acquisition.

There is a need to clarify and streamline the role of the executive and the courts in the expropriation process. Expropriation by its very nature means that the state will play a prominent role in land acquisition. The Draft Expropriation Bill already specifies the role of the Minister in initiating the expropriation of property.

A key issue is that the compensation needs to be just and equitable.

Section 25 (2) (b) of the Bill of Rights already identifies the set of circumstances that need to be included in any consideration of what constitutes just and equitable compensation.

The need for appropriate valuation methods and procedures becomes imperative. This means that the Office of the Valuer-General (OVG) will need to be strengthened to enable it to provide sufficient support to the Executive in ascertaining the value of a property.

A set of key steps and specific roles for the executive and the courts are outlined in the property clause. However, appropriate rewording of the property clause will make the process less conflictual and efficient.

The key operative words to note are ‘agreed’, ‘decided’ and ‘approved’. Negotiation and consensus should be at the centre of the expropriation process. As a first step, it is critical to strive for consensus between the affected parties. In this case, the Minister with the support of the OVG may initially make an offer to the expropriated party.

If the expropriated party agrees to the offer, the expropriation goes ahead and is automatically placed before the courts for approval. In this case, the court’s role is to oversee the process and ensure that the principle of just and equitable is adhered to.
Contrary to popular views, the expropriation of property does not only affect wealthy people in society. The rural poor, especially in the former homelands, have experienced land dispossessions by mining companies, agribusinesses and other large-scale investors in need of land. This has often been aided and abetted by traditional chiefs and local elites.

Having the courts automatically play the ‘overseer’ role is an important measure to protect the poor who may not readily access or afford legal services. In this sense, the approval process through the courts is not necessarily an adversarial process characteristic of litigation. It is essentially meant to ensure that the administrative processes pass the constitutional muster especially the principle of ‘just and equitable’.

To date, not much has been done to develop a comprehensive and systematic compensation policy in South Africa. The set of circumstances that warrant zero compensation identified in Schedule 12 (3) of the Draft Expropriation Bill and a longer list identified by the Presidential Advisory Panel Report on Land Reform and Agriculture should be seen as part of a wide spectrum that encompasses diverse situations attracting different levels of compensation.

PLAAS researcher, Ruth Hall, has argued for a compensation policy that reflects a wide spectrum of scenarios attracting different levels of compensation which may include, nil compensation, below the market compensation, market-related compensation and prime compensation, depending on the prevailing set of circumstances.

Without an appropriate or fully-fledged compensation policy, the Executive will be left with too much discretionary power to determine the level of compensation. A compensation policy should underpin and give meaning to the constitutional principle of just and equitable compensation. Already, a key challenge in land reform is the lack of appropriate measures to facilitate the equitable distribution of public resources across different priority groups.

The absence of a compensation policy creates room for arbitrary decisions in the determination of compensation. A case in point is the Mala Mala Game Reserve restitution case where the government paid R1.1 billion in compensation for the restitution claim. This remains the most expensive restitution settlement in South Africa to date.

It brings into perspective the nature of challenges that are likely to be encountered if expropriation of land proceeds in the absence of appropriate compensation policy.

Finally, land expropriation is only a method of land acquisition and key questions on who should benefit from land reform, and what sort of agrarian structure should land reform yield have not received sufficient attention.

Another key proposal is the need to amend the Constitution and explicitly direct the state to develop relevant legislation to operationalise the right to equitable access to land provided for in Section 25 (5) of the Constitution. This can be achieved by amending Section 25 (9) of the Constitution.

This is in line with key recommendations by the High Level Panel on the Assessment of Key Legislation and Acceleration of Fundamental Change and echoed by PAP. Both panels proposed the need to develop a National Land Reform Framework Bill to guide the implementation of land reform and put into effect the constitutional right to equitable access to land. This is yet to materialise.

Once the land is acquired, the question of who gets that land, what kind of support is required will be dependent on key changes to land reform policies. More also attention should also be accorded to relevant policies like the Draft National Beneficiary Selection and Land Allocation Policy which is still being formulated and could potentially address some of these challenges.

In conclusion, the Covid-19 crisis has revealed major weaknesses in the corporate food system and a pro-poor land reform targeting smallholder producers could potentially provide a pathway to decentralised and equitable food systems.