Parliament has been considering how to process the policy of land expropriation since the dawn of South Africa’s new democracy.
The constitution, under Section 25 titled “Property”, gives protection towards the ownership of property and guidelines towards how expropriation should take place. Section 25.1 reads, “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”
The constitution continues on, defining the law of general application as:
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
These are the beginning terms required for land to be expropriated by government.
The major issue lies in the second requirement for the law of general application, which says the land is subject to compensation. Parliament for years has been debating on whether the constitution needs to change this provision or keep it, with the Economic Freedom Fighters (EFF) acting as the most vocal proponents.
In their statement on land, found on their website, the EFF are advocating for land expropriation without compensation, and that the land be given “custodianship” to the government in the same fashion as how “mineral and petroleum resources” were transferred.
Others warn of a repeat of Zimbabwe’s land expropriation policy, and that a reckless execution of the constitutional provision could lead to a collapse in the economy and the inflation of the rand, similar to Zimbabwe’s fate with the ZWD.
Of course, nobody knows what will happen after land expropriation in South Africa takes place, because it hasn’t happened yet. Nevertheless, there are certain to be some kind of economic and social changes that will impact society significantly, depending on the degree of land expropriation.
Some questions that need answering are, for example, what will happen to the landowners and what will happen to the people who get the redistributed land? Who will get land? How does South Africa avoid the problems Zimbabwe faced over a decade ago?
Legal experts, analysts on land issues, and many more have weighed in with their perspectives on the possible consequences that could erupt from land expropriation. Jackie Dugard, who has a PhD and lectures Property Law and Constitutional Law at Wits University, mentioned different possible ways the government can and has followed through with policy execution from a legal perspective.
“In my legal argument section 25 of the Constitution allows the government to pursue land expropriation for zero or close to zero compensation under the rubric of what is ‘just and equitable’ compensation when applied to the various factors listed in section 25(3),” Dugard says.
The various factors that justify compensation in section 25(3) are:
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property;
(e) the purpose of the expropriation.
“Alternatively, this would be enabled by section 25(8). The fact that the government has pursued market value, willing buyer willing seller sale instead of the appropriate constitutional formula is a political rather than legal issue,” Dugard adds.
Section 25(8): No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results Chapter 2: Bill of Rights 11 of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
Dugard makes it a special point to separate the political factors in play from the legal and economic ones. Execution of land expropriation has been seen to follow a political path rather than the straight constitutional/legal path, and it is for these reasons that the expropriation process has been so complicated.
“I argue that section 25 allows radical land transformation. The failures of land reform are political rather than legal,” She says.
So, according to the constitution, the government has both the ability to compensate people for expropriated land, and also take the land with zero compensation. These enumerated powers belong to Parliament. One important note to consider is that in 1975, the apartheid government passed the Expropriation Act of 1975 which obligated the government to pay compensation for expropriated land.
Although the progressive South African constitution was enacted decades later and gives the government the power to expropriate land without compensation if in the public interest, the ANC government has followed the “willing buyer, willing seller” approach for most expropriation instances. The cost of the government purchasing land from landowners at market price has many blaming the process for the slow expropriation pace we have seen from the government.
Parliament in 2016, though, passed an expropriation bill that would grant the government the ability to expropriate property without compensation, indefinitely. However, former president Jacob Zuma had sent the bill back to the National Assembly in 2017 because, in his view, it was not constitutionally sound and did not consult the public enough.
Land is a very dense, economically and politically complex issue in South Africa. In terms of economic output and development, land ownership is one of the most important pieces of the puzzle.
According to the Land Audit Report, there has been a slight increase in the amount of land owned by black South Africans since 1994, however the numbers show that in the majority of provinces, whites still own over 50% of the farmable land available.
In 2018, for example, the Gauteng Province has 26 662 individual white landowners, which makes up 56% of all landowners in the province, versus 8 887 individual African landowners, which makes up 19% of all landowners in the province. The most staggering statistic is seen in the Northern Cape, where whites make up 73% of all landowners at 5 247 individual owners versus Africans who make up only 2% of all the landowners, at 170 individual owners.
So far, expropriation of land in South Africa has been slow, following the “willing buyer, willing seller” approach. Numbers for African landowners are up but are significantly small in hindsight of a 24-year time span.
The considerations for Parliament to expropriate land without compensation have been prolonged because of the possible after effects. Jackie Dugard, for example, stated that “of course there will be backlash,” from previous landowners that had their land expropriated and that the backlash would likely “be pursued on a number of fronts including in the courts.”
Economic ramifications are also to be expected in addition to the legal ones.
David Dickinson, a PhD lecturer at Wits University with a background in economic development, labour issues, and township agency, also weighed in on the matter. He mentioned how the process is complicated because of a combination of factors, including apartheid’s legacy, the change in economic development since 1994, and political ties.
Dickinson believes land reform should have happened years ago, however not everyone believes in land expropriation and its follow through. Some believe things are fine the way they are, and want the status quo to remain just that, the status quo. Yamkela Gelese and Tsheisey Mosola, both students at Wits University, shared similar thoughts and concerns over the processes of land expropriation and their ramifications, up to the point where they didn’t think it was worth it.
Land expropriation has those who favor and oppose it, but what people may forget about are the marginalized, vulnerable voices that go unheard amidst all the debate. Farm workers, township inhabitants, and many more have much to consider in the land debates and some may have land claims to make.
Additionally, several thousand hectares of land in several different provinces are not being used, and the slow development of this land, due to a variety of reasons, leaves constituents with less services and less infrastructure. Expropriating this empty land and developing it/granting it to the marginalized communities could be one of South Africa’s solutions to growing the economy.
Nompumelelo Seme, an attorney and Wits University Law Professor, spoke about how marginalized communities have much to gain and much to lose over the outcome of this long debate. She said that their voices are important but nonetheless overshadowed, and that in order for justice to avail, Parliament must lend an ear to their callings.
The answers to the land expropriation story are plentiful, however complicated. Parliament has been stuck on this issue and many have been waiting for land reform to finally do justice to South Africa’s poor. Parliament has the power, both constitutionally and legislatively, to make change, its just a matter of time until they actually do.