Submission on the proposed amendment to the Constitution that will allow for the expropriation

of land without compensation.

23 May 2018

Acknowledging the need for fair and just land restitution in South Africa, I nevertheless object to the
proposed changes to the Constitution on both technical and substantive grounds.

TECHNICAL GROUNDS
1. Section 25 of the Constitution already provides for the expropriation of land in the public interest.
At present, expropriation is subject to 'fair and just' compensation, which is agreed to by the parties
(willing buyer; willing seller) OR by the courts. This clause allows for government to use other
methods to determine fair and just compensation for land other than the willing buyer; willing seller
methodology, which it has used exclusively to date.

Further, this section specifies that the compensation must be just and equitable, considering "an
equitable balance between the public interest and the interests of those affected".

Removing these provisions would be in direct violation of the founding principles expressed in the
preamble to the Constitution: |

We (the people) therefore, through our freely elected representatives, adopt this Constitution as the
supreme law of the Republic so as to:
- Heal the divisions of the past and establish a society based on democratic values, social justice and
fundamental human rights;
- Lay the foundations for a democratic and open society in which government is based on the will of
the people and every citizen is equally protected by law;
- Improve the quality of life of all citizens and free the potential of each person; and
- Build a united and democratic South Africa able to take its rightful place as a sovereign state in the
family of nations.

2. The issue of land restitution has been severely compromised by government's own inefficiency
and corruption - and I believe this issue needs to be addressed before even considering the
proposed amendment to the Constitution.

For example:
a) The state has failed to transfer the deeds of 4,323 expropriated farms to their new owners. This
should be a priority before any changes to the Constitution or other legislation is considered. It is
worth pointing out that this situation has arisen partly due to disputes about ownership amongst
claimants, and it is therefore important that government outlines how it proposes to deal with these
and similar disputes before taking any further actions on the issue of land.

b) The state itself owns approximately 25% of all land in South Africa (source: Institute of Race
Relations, 2011) which includes municipal land, conservation areas, commonage and land used for
state infrastructure, such as schools and police stations. A further 15% is communally owned, usually
through tribal trusts. A process of identifying land owned by the state that is suitable for
redistribution should, I believe, precede any attempt to amend the Constitution. There is also an
argument to be made that communal land, which is usually controlled by small elites, should be
transferred to private ownership.

c) According to government itself (Minister of Rural Development and Land Reform, 2014), 92% of
land restitution beneficiaries have already opted for financial compensation instead of land, which is
a crucial consideration when it comes to the debate about expropriation without compensation.
Who, for example, are the intended beneficiaries of the land government proposes to expropriate
without compensation?

d) With regard to urban land, economics.co.za has estimated that, by the end of 2016, 60% of urban
land was already owned by black people, some of whom own more than one property, which may or
may not have improvements (buildings) on it. The questions that this statistic raises are important.

Firstly, how will land targeted for expropriation be identified? Will government target only vacant
land or will it target all land? In this regard, it is worth considering that the property rights in Section
25 of the Constitution refer to property as a whole, which could potentially be interpreted as
property of any kind. The devil lies in details like these. If government were to be entitled to
expropriate property without compensation, how would that property be defined - and what
protections would citizens have against wholescale expropriation of different categories of property
by a government unrestrained by law?

Secondly, will property owned by black people (even if this is defined as vacant land only) be subject
to expropriation without compensation or will this only apply to land owned by white people? It is
worth bearing in mind that one of the reasons Section 25 was included in the Constitution was to
protect black property owners against the same kind of unlawful expropriation of land they had
been subject to during the apartheid era.

3. Further, when it comes to agricultural (arable) land, 4,813 farms were transferred to black owners
between January 1994 and January 2013 (Minister Gugile Nkwinti, 2013). This translates into 4,123
million hectares, which benefited 231,000 people, but excludes large tracks of land acquired on the
open market by black farmers, including Cyril Ramaphosa and Tokyo Sexwale.

Even if we consider only the transfer of land that has taken place through the land redistribution
programme, this needs to be seen in context.

In 2014, the World Bank calculated that only 10,3% of South Africa's total land area is arable. This
translates into 12,5 million hectares. While there is without doubt a need for improvement in the
percentage of arable land owned by black people, it must be taken into consideration that, based on
the figures quoted by the Minister, 32.8% of this land is already owned by black people. If
government were to transfer the deeds for the 4,323 farms already expropriated, it would arguably
double the percentage of agricultural land owned by black people to around 64% (excluding land
purchased on the open market). Within this context, changing the Constitution to allow for the
expropriation of land without compensation seems not only questionable, but unnecessary.

SUBSTANTIVE GROUNDS
If the Constitution were to be amended to allow for the expropriation of property (i.e. all property),
where would government's powers begin and end? Theoretically, an amendment of this nature
would allow government to expropriate any property at any time without compensation and citizens
would have no recourse to the Constitution in order to challenge this.

Several questions are therefore worth asking:

Firstly, are we prepared to grant a government that has proven itself to be so woefully inadequate in
so many ways such sweeping powers over the country's citizenry? In fact, are we prepared to grant
ANY government such sweeping powers?

Secondly, can we trust government in what it says about expropriation without compensation? At
first, the ANC (being the majority party in government) said that expropriation would be limited to
vacant (i.e. uncultivated) agricultural land, supposedly for the purpose of providing more land for
black farmers. However, speaking on Radio 702 in May, Robert Lamola, a member of the ANC's NEC,
said that the goal of the proposed amendment to the Constitution was 'the redistribution of land'
(presumably as a whole) and that the party's focus would be primarily on urban rather than
agricultural land.

Of note here is that two-thirds of the country's black population lives in towns and cities - and
expresses little or no interest in farming. The greatest need for land is therefore indeed in the urban
areas, a need government itself could begin to address immediately by transferring ownership of all
RDP houses to their occupants rather than maintaining government ownership of these properties.
It could also identify unused municipal land for immediate development. These two measures alone
would go a long way to extending ownership of urban land to black people.

Thirdly, will all land be subject to expropriation without compensation or will this apply only to land
owned by white people? The ANC has consistently avoided answering this very important question,
which goes right to the heart of the rights guaranteed by the Constitution.

Then, in a globalised economy, how will expropriation of land without compensation impact on the
country's economic fundamentals and its attractiveness to foreign investors, which government
itself actively courts? Further instability in an already unstable economy could be disastrous for
South Africa.

Finally - and this is the crux of the matter - once property rights are gone, they're gone and,
theoretically, this means that property (any property) owned by anyone (including land restitution
beneficiaries) can and may be subject to expropriation without compensation, either now or in the
future. The ANC hasn't made this consequence of its proposal clear to the country's people, much
less to its own constituency. Before we consider any amendments to the Constitution, this
information needs to be made widely available so that everyone can assess the viability of the
proposal in an informed way.

CONCLUSION
As citizens, we need to actively engage on the issues of land ownership and, on a broader basis,
economic inequality, but we need to do this in an informed way and in a way that is mindful of the
potential consequences of promises that are made for political benefit rather than to tangibly
improve the lives of the majority of South Africans.

We also need to be fearless about looking into all of the complex causes of inequality, including the
impact of government corruption and inefficiency over the past 25 years. While we are still unable to
calculate exactly how much this has cost the public purse, Transparency International estimates that
it could be anywhere between 10% and 50% of the value of all government procurement contracts
over the period.

In short, we cannot contemplate an amendment to the Constitution without first taking into
account (a) the realities of the land/property ownership situation as it stands today, (b) the issue of
corruption and inefficiency in government, and (c) all of the potential consequences of an
amendment of this nature.