Parliament has been told that it has failed in its constitutional duties. Advocate Tembeka Ngcukaitobi believes that Parliament should have been taken to court a long time ago for failing to implement the constitution effectively. Advocate Ngukaitobi was making a presentation to the Constitutional Review Committee tasked to amend section 25 of the Constitution to allow for the expropriation of land without compensation.
Last year, Parliament approved a resolution to amend the Constitution to allow for the expropriation of land without compensation. Since then, the Constitutional Review Committee has been conducting public hearings on the matter. While the majority of citizens support amending the constitution, there’s also a sizeable number of people against it. They argue that there’s nothing wrong with the Constitution, it only needs to be implemented effectively.
Advocate Ngukaitobi also believes that there’s no need to amend the Constitution.
“My own personal view born out of experience in land matters and as a practitioner in land as well as acting judge and basically an activist was that there is no need to amend section 25 at all. What you need to is to implement but I think I’ve given up on the debate because the decision has been taken that section 25 should be amended.”
Ngukaitobi says Parliament should have been taken to court a long time ago on this matter.
“Not a constitutional failure but perhaps a political failure in passing legislation to say the state must take reasonable legislative and other measures. This is a 1996 document that Parliament has not been taken to court for failing to legislate. Here is something I still cannot understand because you should have been taken to court for failing to perform a constitutional obligation.”
Professor Wim Trengove is also against amending the Constitution.
“For expropriation without compensation is not enough because it doesn’t promote redistribution. The moment you recognise as the Constitutional Court did not redistribute is not expropriation because it is not a taking by the court for itself, then it is the state may expropriate without compensation because it doesn’t address redistribution.”
The committee has also heard that it must rather be courts and not the state that decides when not to pay.
