Changing the Constitution's property clause is dangerous - Farmer's Weekly

Anthea Jeffery

Many have argued that as the Constitution in its current form already allows for expropriation without compensation, the amendment of Section 25 of the Constitution would not present much of a problem. However, changing the Constitution is, in fact, a step closer to nationalising all land, and thus keeping the political elite in power.

Some commentators seem to think it would matter little if the Constitution were changed to allow for expropriation without compensation EWC , as the present formula for 'just and equitable' compensation can already result in zero compensation in certain circumstances. This is a dangerous fallacy.

The present Constitutional formula would yield a zero result only in exceptional instances, and generally solely where the market value of the property was zero or very close to this. Think, for example, of mineral depleted and badly contaminated mining land honeycombed with tunnels creating a major risk of subsidence , and which cannot be used for housing or any other purpose without costly rehabilitation.

The current formula, which is contained in Section 25 3 , says that compensation on expropriation must be 'just and equitable', and 'reflect an equitable balance between the public interest and the interests of those affected'.

This wording is very important, particularly in its reference to 'an equitable balance', as it underscores the fact that individual owners cannot be made to foot the bill for land reform. This is a national responsibility that has to be met by government out of tax revenue.

The present formula goes on to state that the necessary 'equitable balance' must be found by looking at all the relevant circumstances. It lists five issues that should be taken into account, but makes it dear that other relevant factors, for example the need to compensate people for direct losses resulting from expropriation, must also be taken into consideration. Such losses would include moving costs and any loss of income from a farm or other property.

The five listed factors are market value, the current use of the property, the history of its acquisition, the extent of direct state subsidy in its acquisition or capital improvement, and the purpose of the expropriation. These last four factors are often difficult to quantify, but cannot trump the overarching need for that 'equitable balance'. 

The Constitution also says that 'the amount of the compensation' and the time and manner of its payment must either have been agreed by the parties or 'decided or approved by a court'. This is another vital safeguard, for it gives the ultimate decision making power on compensation to the courts rather than the ANC's deployed cadres.

Amending the Constitution to allow for EWC would remove these key safeguards. If the compensation due is zero, then Section 25 3 , which deals with the amount of compensation to be paid, will have no relevance. The current need for 'an equitable balance' will no longer apply. Nor will the courts have any role in deciding on compensation. Hence, all the safeguards now contained in Section 25 will fall away.

A Constitutional amendment would allow the passing of ever more damaging statutes, each of which could be adopted by a simple majority in the National Assembly. Once the EWC principle has been conceded, there will be nothing to prevent the steady ratcheting up of a succession of expropriation laws providing for zero compensation in ever widening instances. In addition, the wording used could be broad enough to allow a 'Big Bang' approach right from the start.

Take, for example, the presidential advisory panel's recommended wording for a Section 25 amendment It suggests that Section 25 (2) should have an extra subsection Section 25 (2) (c) added to it, which would state that 'Parliament must enact legislation determining instances that warrant expropriation without compensation for purposes of land reform'. 

Once the Constitution has been amended in this way, Parliament by a 51% majority could pass legislation vesting the custodianship of all land in the state for the benefit of the people, adding that, if any court were to find that this amounted to an expropriation, then this would be 'an instance that warrants expropriation without compensation'.

Those who now argue that an EWC amendment would make no difference will find they have opened the way to precisely what the EFF and many in the ANC so clearly want. In this situation, all land will vest in the state as custodian, existing title deeds will mean nothing, and  people will no longer be able to use their homes to build up household wealth.

All individuals, companies and farmers will need land use contracts with the state, which will be open to termination when deployed cadres so decide. Land will then become a key patronage tool in the hands of the ANC, and will be used by it to cement dependency on the state and keep itself in power. Political freedom will decline, while critics of the government could face detention, torture and death, as they do in both Venezuela and Zimbabwe.

The notion that an EWC Constitutional amendment is unimportant serves the ANC's self-serving objectives very well, but is way out of touch with reality. 

Dr Anthea Jeffery, Head of Policy Research at the IRR, is the author of People’s War: New Light on the Struggle for South Africa, now available in all good bookshops and as an e-book in abridged and updated form. If you like what you have just read, become a Friend of the IRR if you aren’t already one by SMSing your name to 32823 or clicking here. Each SMS costs R1.’ Terms & Conditions Apply.