Expropriate land within existing law

In February 2018, the National Assembly adopted a motion proposed by the EFF, with amendments by the ANC, that Parliament’s Constitutional Review Committee investigate mechanisms through which land can be expropriated without compensation. The Joint Constitutional Review Committee was mandated by the National Assembly and the National Council of Provinces to propose the necessary constitutional amendments for the future land tenure regime.

The Committee thus called for written public submissions on the review of Section 25 of the Constitution (known as the property clause) and other sections where necessary, and organised public hearings, which are currently being held in all provinces across the country.

“We don’t believe that the Constitution is an impediment to the expropriation of land without compensation, when it has never been tested. We have been waiting for too long for our land claims to be settled. We don’t want to wait any longer. The amendment of the Constitution will delay our only chance of ever getting our claims settled,” submitted Mr Magwaza from uMshwathi at the recent uMgungundlovu public hearing.

So, what does Section 25 of the Constitution actually say? In its current form, it states that “no law may permit arbitrary deprivation of property” and that “[property] may be expropriated only in terms of law of general application (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.”

Section 25 also says the “state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”

ANC NEC member Roland Lamola told attendees at the recent joint Constitutional Review Committee hearings that there is no need to wait for the public hearings to end, as lawful expropriation can start now. He stated that government departments and entities already have the means to test the Constitution and expropriate land within existing laws.

Land Rights NGO, the Association for Rural Advancement (AFRA) supports this proposal, and believes that the Constitution should be amended only if it is found to be a limitation. Existing land reform measures have been too bureaucratic and have taken too long. The Department of Rural Development and Land Reform (DRDLR) has chosen to purchase land for land reform based on market-related prices only, which is not the only factor that the Constitution states should be taken into account in the valuation of land for land reform purposes. This has been a key challenge. “Just and equitable” compensation has a range of values, from zero to full market rate.

AFRA believes that there are cases that can be tested within the existing law, particularly expropriation of land that labour tenants and farm dwellers currently live on and use. This is by no means suggesting that this is the total amount of land that should get redistributed or that labour tenants are entitled to, but it can provide a starting point.

Labour tenants have historically provided free labour on farms in return for land to live and use for their own farming. Landowners do not use or derive any benefits from the land that labour tenants and farm dwellers currently use. AFRA believes that this land should be deducted from the value of the property rights of ownership.

The expropriation of this land will not affect food security, destabilise the agricultural sector or undermine the economy because it is already occupied and made productive by labour tenants and farm dwellers.

From a legislative perspective, the Land Reform (Labour Tenant) Act and the Extension of Security of Tenure Act (ESTA) give labour tenants and farm dwellers statutory property rights to the land they occupy and work, derived from Section 25 of the Constitution. Expropriating this land will serve the public purpose of land reform. Settling labour tenant claims through redistributive tenure would result in the transfer of approximately 1-million hectares in KwaZulu-Natal and Mpumalanga, but this will require sufficient human resources to handle the work. Expropriation with zero compensation is necessary to make agrarian reform affordable.

For this to happen, the National Working Committee on Land needs to fast track the finalisation of the expropriation bill which must set out the processes by which land can be expropriated within the existing law. To move the process forward, once a labour tenant’s status  is confirmed by the landowner or a court and the claim is found to be valid, it should be automatically acknowledged that the labour tenant’s rights to the claimed land equates to ownership. Contestations over compensation should not delay the process of transferring ownership. It is prejudicial to labour tenants to expect that they must wait for more years to resolve a dispute they are not direct parties to, when, as the Supreme Court of Appeal and the Land Claims Court have noted in the Mwelase Labour Tenant class action legal case, they have already waited decades.

For the full submission made by AFRA on land expropriation without compensation visit: https://afra.co.za/2018/05/22/why-labour-tenants-and-farm-dwellers-are-a-good-case-for-expropriation-without-compensation/

AFRA is a land rights advocacy non-governmental organisation (NGO) working to support marginalised black rural people, with a focus on farm dwellers. We are working towards an inclusive, gender equitable society where rights are valued, realised and protected, essential services are delivered, and land tenure is secure. We work intensively with communities in and around the uMgungundlovu District Municipality in KwaZulu-Natal, South Africa, and extensively in offering support and advice.