VIDEO: Constitutional Review Committee Oral Presentations, 25 October 2018
The African Farmers Association of South Africa (AFASA) said the Land Audit Report of 2017 glaringly shows the land ownership patterns in South Africa as skewed towards whites and corporate entities. The previous land reform programmes were a mere piecemeal with no genuine intention to settle the land question, and most of the available land is deemed unproductive and marginal land. The African Farmers Association of South Africa supports the expropriation of land without compensation – this will speed up land redistribution and enable a focused targeted strategic approach to land reform.
The Tshwane Inner City Arts and Cultural Heritage Forum said they support the expropriation of land without compensation. It also said there should be some form of compensation for the previously disadvantaged communities to assist with managing the land and making it economically productive. The land in urban areas should be under the administration of municipalities and the municipalities should be able to fairly distribute the land; however, certain measures will have to be in place to assist with a just and fair distribution of the land. Land under the custodianship of traditional leaders should not be sold to foreigners.
The Land Access Movement of South Africa (LAMOSA) said that Section 25(3) should be amended to ensure that land reform is listed as a compensation factor. Section 25(4) should ensure that those affected by expropriation explicitly includes farm workers and beneficial occupiers, it should state that there may be no compensation to owners; farm workers and occupiers should be compensated separately from owners; banks may be compensated separately for bank-held loans which are collateralised by land. Section 25(8) will ensure that mining and minerals may be redistributed and 25(9) will ensure the fast tracking of land reform and enactment of effective expropriation, tenure and redistribution statutes and their implementation. It said Section 25(7) is an example of gross dereliction of duty by the state. Restitution is lagging and in crisis yet the Committee is forging ahead with a Constitutional Amendment without regard to the implementation challenges and adequately ring‐fencing existing claims. If Section 25 is not amended, LAMOSA proposes that the Committee recommends that a Constitutional Expropriation Act provides for the categorisation of “those affected by expropriation” to be compensated or not compensated separately, and that courts be given the power to order expropriation.
The Azanian People’s Organisation said sections 25(2) and (3) should be removed from the Constitution. Their removal will allow expropriation without compensation. The only helpful aspect the Expropriation Bill of 2008 is the proposal is that there should be Expropriation Advisory Boards - these boards should be independent and not easily influenced by political parties. Section 25(6), (7) and (8) can remain as they will assist historical communities achieve redress of land ownership. In addition, there should be a law that compels landowners to disclose their personal information; where they own land and what activity is done on the land.
Suidwes Landbou said there is a perception that land reform is slow, however the slow pace of land reform is due to the lack of political and social will and dysfunctionality of several government departments. It is not necessary to amend the Constitution as this will prevent the Department of Rural Development and Land Reform from buying land at inflated prices. Instead, government can enter into partnerships with banks, which will provide the state with a fair price for agricultural land. Section 25 already gives the government powers to expropriate, provided that the expropriation is for a public purpose and in the interest of the public. They recommend that a land audit should be established, the land audit will take into account existing data for current land ownership, and that current legislation be revised or new laws be promulgated to secure and extend the private property rights of black South Africans who live on communal land, urban and in peri-urban areas.
Mr Zinasele Kani said the court stated that the state has no law to expropriate, however the power to expropriate can be derived from various statutes that deal with the expropriation of property by government institutions for specific purposes. The right to expropriate empowers the expropriator to expropriate the property for a public purpose against payment of compensation. With this, it shows that with a clearly defined expropriation clause in the Bill of Rights and valid expropriation legislation in place, no court in South Africa can resort to common law as a basis for land expropriation. Section 25 is contained in Chapter 2 of the Constitution, the Bill of Rights. That means that property rights in South Africa are regarded as a fundamental human right. Among the circumstances mentioned in Section 25(3) the following were specifically designed for the expropriation of property for the purposes of land reform: the history of the acquisition and use of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property, and the purpose of the expropriation.
The Women on Farms Project said they welcome Parliament’s decision to deal with the slow pace of land reform and for the possibility it presents to move us forward from the current ineffective model of land reform.The methods of land reform, such as the ‘willing buyer/seller’ have served to disempower the black rural poor and made them observers in a process in which they should have been at the centre.They further believe that Section 25 allows enough scope for expropriation without compensation. A limit must be placed on the size of agricultural land that a farmer can own and the state must impose land taxes on those owning large or multiple farms.Expropriation must take place with limited or no compensation and clear timeframes must be linked to land acquisition and distribution.
Members asked if expropriation without compensation should apply to all types of land; what percentage of the land would be adequate to expropriate for black people without affecting the economy and food security; about ownership of water rights and how this affects land ownership; should land under the ownership of traditional leaders be expropriated as well; how individual property rights would be protected if Section 25(1) should be amended; if the state should be the custodian of land; if thus far 92% of land claimants took the money option instead of the land, would this change in the future; if the submission states that banks must be compensated, who should compensate the banks for loans made against property; should communal land in the rural areas be equally expropriated; if it would harm the economy if the state puts a zero value to land; if Parliament should first get legal certainty whether the Constitution needs amending; if the tenure of farm labourers can be solved without amending the Constitution; and what the land ceiling should be.
The Chairperson reminded the Committee that the public hearings are not an opportunity for a debate, but the Committee should seek clarity on the submissions made by organisations. He reminded the presenters that each would be given 10 minutes to make their submissions.
African Farmer’s Association of South Africa (AFASA) submission
Dr Vuyokazi Mahlati, AFASA President, said land ownership in South Africa bears stark testimony to the disenfranchisement of the indigenous peoples of this country. The Land Audit Report of 2017 glaringly shows the land ownership patterns in South Africa as skewed towards whites and corporate entities. She proceeded to outline the results of the report on land and agricultural land in particular.
There is no single country in the world that has successfully implemented land reform by solely relying on the market to redistribute land. The land reform approach has been a piecemeal, fragmented and there has not been a genuine intention to settle the land question via land reform by both the state and the markets. Most of the land availed on the market and bought by the state is unproductive and marginal land; if anything, this land is a mere expansion of the “former Bantustans” as the land bought for land redistribution lies on the fringes of the former homelands. Also, the transfer of land acquired through the land reform process has left the water rights in the hands of the former white owners rendering the transfer of the land meaningless as the new black owners are exposed to extortionist water use tariffs.
Dr Mahlati said they are vehemently opposed to the market-basis of land reform and redistribution and the principle of blacks having to buy back the land that was taken from black people in the most diabolical circumstances. The “willing buyer, willing seller policy” leaves regulation in the hands of the supposedly neutral market forces in a highly unequal and distorted economy. The market has only served to worsen the geo-political and socio-economic inequalities present in modern day South Africa. Therefore, AFASA is in support of expropriation of land without compensation due to the need to speed up land redistribution and land reform in general; to enable a focused targeted strategic approach to land reform considering agro ecological zones, geographical / area-based opportunities that are commodity driven to allow for the consolidation of publicly and privately-owned land for transformative inclusive growth and development. Further, it will address fragmentation and isolated farm-by-farm acquisitions enhancing sustainability.
Mr S Swart (ACDP) said given that AFASA has stated that the state lacks the capacity to effectively implement, monitor and enforce the land policies; would it not be problematic, if the Constitution is amended, that the state becomes the custodian of land ownership.
Dr C Mulder (FF+) said the statement made by AFASA that most of the land availed on the market and bought by the state is unproductive is not true. He asked where the 300 000 black farmers represented by AFASA are currently farming and what its position is on the land owned by traditional leaders.
Mr F Beukman (ANC) asked if expropriation without compensation should apply for all types of land, such as commercial and agricultural.
Mr S Mncwabe (NFP) asked what the objectives of the Land and Agrarian Ombudsman would be.
Ms T Mokwele (EFF) asked if Section 25 is amended to allow for expropriation without compensation, should Parliament expect that there would be a civil war. She asked what some of the challenges faced by black farmers are when it comes to the imbalance of land ownership, and how easily do they access funding to manage the farms they own.
Mr M Filtane (UDM) asked what percentage of the land would be adequate to expropriate to black people without affecting the economy and food security.
Mr V Smith (ANC) asked what the land ceiling should be. He asked for a detailed explanation on the idea that redistribution could harm the economy. He asked what AFASA proposes on the ownership of water rights and how this affects land ownership.
Dr Mahlati replied that the state capacity issue is not a permanent one because there are a number of people with the right set of skills who are able to manage land reform in an effective manner. The state may not have the right people, but there are individuals who are adequately equipped with the right skills to deal with land reform. The current institutional dispensation is not adequate to deal with land reform. The ‘willing buyer/seller’ system did not work because those who were willing to sell land sold land that was not productive to the state. Some of their member farmers farm on communal land and others have formed co-operatives on land that was acquired by the state. Many of their members do not have title deeds for the land on which they farm.
The objectives of the Ombudsman will be to look into evictions of farm dwellers and the equitable and just price model for land. The fundamental challenge with land in the rural areas is that most of it is overgrazed; therefore black people should not be forced to work on land that will not be economically productive. She does not believe that there would be a race/civil war because they have in the past worked with white farmers and formed co-operatives with them. Also, they are working closely with unions that represent white farmers where land negotiations often take place. AFASA is currently doing research on what an adequate land ceiling should be, and another matter that the research will look into is foreign ownership of land.
The Chairperson asked AFASA to respond to some of the questions in writing due to time constraints.
Tshwane Inner City Arts and Cultural Heritage Forum submission
Mr Sindiso Solontsi, Managing Director, said they support land expropriation without compensation. The organisation believes that all past disadvantaged communities need to be appropriated their human rights by being given back their forefathers’ property which is their rightful inheritance. All rural communities and land property under the administration of traditional chiefs and kings must be left in the ownership of cultural leaders in villages. Land in urban settings can be monitored by municipality offices for proper fair distribution but certain measures needs to be met to ensure justice in the process. Vacant land around cities needs to be monitored by municipalities but people should be supported to construct reliable housing to avoid informal settlements.
Mr Solontsi said traditional land should not be sold to foreigners unless the person marries someone from that community and decides to permanently reside in that community. This process should be monitored by the traditional leadership council. There should be some form of compensation for the previously disadvantaged communities when the land is expropriated – the compensation will assist communities with managing the land.
Mr Smith asked if people should be given title deeds, or should the state be the custodian of the land. Should land under the ownership of traditional leaders be expropriated as well, and if the land is expropriated should traditional leaders be given title deeds too, and which foreigners are they referring to that they should be given land as well.
Mr F Shivambu (EFF) asked if the Forum supports that land should be expropriated without compensation.
Mr Filtane asked how individual property rights would be protected if Section 25(1) should be amended.
Mr Solontsi replied that traditional leaders were never using title deeds before until government adopted the western system of governance. Traditional leaders should be given Trust Deeds that would represent the whole community, and the state should encourage a partnership between traditional leaders and the House of Traditional Leaders. Also, traditional leaders should undergo governance training on how to equitably distribute land to community members. He opposed the idea that the state should compensate for the land because the white farmers did not buy the land from the previous black owners. He replied that a foreigner is any person living outside of South Africa, however when a foreigner marries a South African, the community should be willing to sell land to the foreigner, given that they plan on staying on the land.
Land Access Movement of South Africa (LAMOSA) submission
Mr Speaker Mahlake, General Secretary, said Section 25 should be amended for re-legitimisation of the following subsections: Section 25(3) should be amended to ensure that land reform is listed as a compensation factor. Section 25(4) should ensure that those affected by expropriation explicitly includes farm workers and beneficial occupiers, it should state that there may be no compensation to owners; farm workers and occupiers should be compensated separately from owners; banks may be compensated separately for bank-held loans which are collateralised by land. Section 25(8) will ensure that mining and minerals may be redistributed and 25(9) will ensure the fast tracking of land reform and enactment of effective expropriation, tenure and redistribution statutes and their implementation.
Mr Mahlake said Section 25(5) does not have a framework redistribution statute; instead Parliament is relying on the Provision of Land for Settlement Act from the pre-constitutional era. The amendment and the vague discretionary policies leave much to be desired and do not benefit the poor. The Department’s proposed draft tenure reform bill favours chiefs and in effect expropriates the property rights of households without compensation. Section 25(7) is an example of gross dereliction of duty by the state. Restitution is lagging and in crisis but the Committee is forging ahead with a Constitutional Amendment without regard to the implementation challenges and adequately ring‐fencing existing claims.
LAMOSA said 25(3) should be amended to include an additional sub (f) that would read: “the nation’s commitment to land reform and to reforms urgently to bring about equitable access to all South Africa’s natural resources.” 25(3)(f) borrows from the wording of the existing subsection 4(a). It is added as a listed factor to determine the amount of compensation so that the whole nation will share the responsibility to contribute to the cost of expropriation, if any. It emphasises that when the purpose of expropriation is land reform, then this also constitutes a separate factor that impacts on the amount, timing and manner of compensation and payment. It will also constitutionally justify staggered payments, government long bonds and creative alternative compensation, including community benefit sharing in any development on the expropriated land.
Section 25(8) should be amended with the following insertion: “No provision of this section nor compensation may impede the state from taking legislative and other measures to achieve land, water, mineral, mining and related reform…” and Section 25(9) should be amended to: “Parliament must enact, and the state must implement the legislation referred to in this section and more specifically subsections (5) and (6) within a reasonable time taking into account the public interest and the nation’s commitment to land reform, and to reforms urgently to bring about equitable access to all South Africa’s natural resources.”
LAMOSA said if the Committee decides not to amend Section 25 to re-legitimise and revitalise land reform in order to require urgent law reform and accountable land reform, then LAMOSA proposes that the Committee recommends that a Constitutional Expropriation Act provides for the categorisation of “those affected by expropriation” to be compensated or not compensated separately, and that courts be given the power to order expropriation.
Mr Swart said LAMOSA has strong views about the state forging ahead with a Constitutional Amendment without regard to the implementation challenges and adequately ring‐fencing existing claims. If expropriation of land without compensation is allowed, given that the state is faced with implementation challenges, should the state be the custodian of land? LAMOSA stated that the High Level Panel Report should be taken into high consideration when discussing land expropriation. One should note that the High Level Panel Report stated that it was not necessary to amend Section 25 as it gives sufficient scope for expropriation.
Mr Koornhof said 92% of the people who made land claims took the option of choosing the money instead of the land. He asked if there is an explanation for this and would it change in the future.
Mr Filtane said LAMOSA seems to be in support of private ownership of land as they have stated that bad expropriation execution could be dire for commercial banks. A lot is at stake for South Africa’s commercial banks, which have loans of about R148 billion in the agricultural sector and R1.6 trillion in property. He asked if LAMOSA believes that the state should rather seek foreign investments, instead of expropriating land, to alleviate poverty.
Mr Shivambu said the majority of white people who made submissions oppose land expropriation without compensation and the amendment of Section 25; and the black people who oppose expropriation of land without compensation are always accompanied by white people.
Dr Mulder said Mr Shivambu remarks are racist and he should withdraw his statement.
Mr Shivambu replied that there is nothing racist about what he was saying. Home Affairs and StatsSA classify South Africans into Black, White or Coloured people. He asked for LAMOSA’s governance structure and who the funders of LAMOSA are.
The Chairperson said LAMOSA should not entertain the questions from Mr Shivambu.
Ms Mokwele said the Chairperson should allow LAMOSA to respond to Mr Shivambu’s question because a similar question was asked earlier and the Chairperson allowed LAMOSA to respond.
Mr Smith said the submission states that banks must be compensated. He asked who should compensate the banks for loans made against property, and when the banks are paid, who will operationalise this process?
Mr Mahlake replied that he is glad the Committee has thoroughly gone through their submission because he used to think parliamentarians fall asleep during meetings. LAMOSA operates in four provinces and luckily for them they are not funded by VBS Mutual Bank – they are funded by social partners, lawyers and through fundraising events. Compensating banks is not something that is new; the previous government compensated banks, therefore if expropriation of land is supported, the state must compensate banks for loans made on property.
Azanian People’s Organisation (AZAPO) submission
Mr Strike Thokoane, President: AZAPO, said sections 25(2) and (3) must be removed from the Constitution in order to meet the requirements to expropriate without compensation. Further the Expropriation Bill of 2008 is not that much helpful as it is premised on compensation. The only helpful aspect in the Bill is the proposal for the establishment of Expropriation Advisory Boards. These boards must be independent and should be outside the influence of the ruling party. These boards shall allow for oversight role and alleviate the burden on the courts that are battling with litigation backlogs. Subject to the removal of subsections (2)(b) and (3) of Section 25 of the Constitution, the rest of the section may be retained, primarily 25(6), (7) and (8), to assist the historical communities to achieve redress.
In addition to the removal of Section 25, Parliament should consider complementary actions for the land redistribution programme. Foremost among these, will be a law that would compel all landowners, leaseholders and occupants, to disclose who they are, where they own land and for what purpose. These registers must be completed in triplicate, for documentation and storage at local government level, at provincial level and at national level. Such a register will expedite the process of completing a comprehensive land audit.
Ms T Mbabama (DA) said a number of Communal Property Associations (CPAs) have failed in the traditional communities, yet AZAPO has recommended it will support collective ownership and usage of land by the people through communal associations. Zimbabwe is listed as an economic example of countries that have facilitated land reform well, yet page 14 states that Zimbabwe failed to adequately redistribute land effectively?
Mr Filtane asked how government should deal with foreigners that want to purchase land in South Africa for the purpose of providing employment on that land. AZAPO states that South African farms are unproductive, yet almost 70% of South African land is categorised as farms, and owned by whites. He asked if there is any research that proves this because commercial farms seem to be doing very well and they make up a large percentage of the exports.
Mr Beukman asked if asset classes only pertain to houses, and what should the level be per person.
Mr Shivambu asked what the land ceiling should be.
Mr Smith said, with the view that AZAPO is proposing that Section 25 must be removed in its totality, does this mean that AZAPO believes that the Constitution should not speak to land at all.
Mr Thokoane replied that the fact that CPAs have failed is not an indication that there cannot be a solution in finding measures to make them effective. The state should be the custodian of the land on behalf of the public. The Lancaster Agreement in Zimbabwe failed when the Zimbabweans did not get their land back as promised – ZANU-PF was cheated out of the agreement and the people arose against the regime. He said that foreigner should not be allowed to own land in South Africa. AZAPO does not support expropriation because expropriation suggests that the land was taken legally, however they believe that black people were dispossessed and it is time for them to repossess what was taken illegally.
Suidwes Landbou Eiendoms Beperk submission
Mr Derek Linde, Group Chief Legal Officer, said there is a perception that land reform is slow because agricultural land is too expensive. Suidwes however believes that the slow pace of land reform is a result of the lack of political and social will, dysfunctionality of several government departments, corruption, and inadequate implementation of legislation. It is also likely that government has paid inflated prices for land in the past. It is however not necessary to amend the Constitution to expropriate land without compensation to prevent the Department of Rural Development and Land Reform buying land at inflated prices. Amongst others, government can partner with commercial banks to ensure a more accurate valuation and that a fair price is paid for agricultural land.
Suidwes supports the concept of land reform, provided it is implemented within the ambit of section 25 of the Constitution and the law of general application. Section 25 sets out the requirements that must be met when government interferes with private property rights. It already gives the government the power to expropriate property, provided it is for a public purpose or in the public interest.
Suidwes recommends that a proper land audit be launched that takes into account existing data verifying current land ownership including that of the state. Also, legislation should be promulgated to transfer a certain percentage of state owned land and government owned farms to previously disadvantaged communities for the purpose of agricultural production or livestock farming. Programs launched under such legislation ought to ensure that benefactors have sufficient access to financing, support structures, markets and infrastructure such as water and seed. Beneficiaries should also receive full property ownership after a designated period of time. Current legislation should be revised or new laws promulgated to secure and extend the private property rights of black South Africans who live on communal land, urban and in peri-urban areas. The Committee should inform Parliament and the President of the need to address the dysfunctionality of several government departments that are mandated to implement land reform.
Ms Mokwele said there is a general consensus among white farmers that they support expropriation of land, but they do not support the amendment of the Constitution. Since the Suidwes formation has only a 10% ownership of black people, this shows that Suidwes is not willing to transform its own internal structure. She asked if it supports transformation, and if they do, why they do not support expropriation of land without compensation.
Dr Mulder interrupted saying that the statements made by Ms Mokwele are unfair and utter rubbish.
Ms Mokwele said if Dr Mulder does not like what she is saying, then he should pack his bags and leave. She is not representing him; she is representing black people who were dispossessed of their land by white people.
Ms Mbabama interrupted and said the Chairperson should do his job. She does not understand why the male chairpersons of Parliament struggle to control meetings. The Chairperson should start acting like a man and not be bullied by Committee members who think the meetings are a platform to campaign.
Ms M Mothapo (ANC) asked if Suidwes belongs to an agricultural union.
Ms Filtane asked how the company has assisted landless poor people and if any of the black employees in Suidwes own land.
Mr Smith asked if the system of the ‘willing buyer/seller’ had any effect on the dysfunctional governance of land reform. If Section 25 is explicit enough to allow for expropriation does Suidwes foresee there being litigation to challenge its legitimacy for proper expropriation?
Mr Linde replied that Suidwes sits at the 50/50 mark in terms of the employment equity, and black people own 10% of the company. It is difficult to attract qualified black people to the company due to location of the company, which is in a rural town. None of the employees or directors of the company own land.
The Chairperson asked Mr Linde to respond to the other questions in writing.
Mr Zinasele Kani submission
Mr Zinasele Kani, small scale farmer, said in the Harvey v uMhlatuze Municipality [4387/08], the court stated that “The state has no general common-law power to expropriate. The power to expropriate is derived from various statutes dealing with the expropriation of property by governmental institutions for specific purposes. The right to expropriate, granted under statute, as in the Expropriation Act 63 of 1975, which is sometimes referred to as the right of eminent domain, empowers the expropriator to expropriate the property for a public purpose against payment of compensation”. In addition, Section 39(2) of the Constitution states “when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights". This proves that with a clearly defined expropriation clause in the Bill of Rights and valid expropriation legislation in place, no court in SA can resort to common law as a basis of land expropriation.
Section 25 of the Constitution is contained in Chapter 2 of the Constitution, the Bill of Rights. That means the property rights in South Africa are regarded as a fundamental human right. Note must also be taken of the supremacy of the Constitution. Section 2 of the Constitution states, "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." However, rights enshrined in the Constitution, including those in the Bill of Rights, may be limited as stipulated in Section 36 of the Constitution.
In Haffejee NO and others v eThekwini Municipality, the question was raised whether the determination of compensation is a pre-requisite for the constitutional validity of expropriation in terms of Section 25(2)(b) of the Constitution. First, the court found "the provisions of Section 25(2)(b) do not require that the amount of compensation and the time and manner of payment must always be determined by agreement or by the court before expropriation under Section 25(2). The determination of compensation, in accordance with the provisions of Section 25(3) before expropriation will be just and equitable. Further, that in those cases where compensation must be determined after expropriation, this must be done as soon as reasonably possible, in accordance with the provisions of Section 25(3). The Court reiterated that Section 2(l) of the Expropriation Act of 1975, which provides that the obligation to pay compensation is a condition of expropriation, but not a prerequisite for its operation, is not in conflict with Section 25(b) of the Constitution.
Section 25(3) stresses that the amount of the compensation and the time and manner of payment must be just and equitable, balancing public interests and those of the land being or sought to be expropriated. It lists a set of circumstances to be taken into account. In his mind, among the circumstances mentioned in Section 25(3) the following were specifically designed for the expropriation of property for the purposes of land reform: the history of the acquisition and use of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property and the purpose of the expropriation.
Ms Mothapo said paragraphs 27 and 30 of his submission are contradictory. She asked for clarity.
Dr A Lotriet (DA) asked for the speaker’s view on expropriation of land, especially taking into consideration that that Section 25 has not been tested in court.
Mr Filtane said Section 25 allows for the ‘willing buyer/seller’ system, but the system is not deemed sufficient given the fact that there are not enough land reform judges to preside over cases. As such, what would be a more appropriate method for land reform besides expropriation.
Dr Mulder asked how communal land in the rural areas should be equally expropriated.
Ms Mokwele said the Expropriation Act of 1975 does not provide for expropriation in the interest of the public; it only considers compensation through a market value. Knowing this, how would he reconcile the requirements in the Constitution that compensation must take into account numerous matters, being it historically disadvantaged and use of property.
Mr Smith wanted the speaker to clarify whether, legally, Section 25 allows for expropriation without compensation. He asked if it would harm the economy if the state puts a zero value to markets.
Mr Kani replied that if the state wants to expropriate without compensation then Section 25 must be amended to make it explicit. The Constitution does not make provision for the state to negotiate for land, however it does state that the state can use a law of general application. No court in South Africa has found the Expropriation Act of 1975 unconstitutional. Communal land should not be expropriated as it is already under the custodianship of black people. However, traditional leaders should be given protection and that can be in the form of a title deed.
Women on Farms Project (WFP) submission
Ms Carmen Louw, Co-Director, said they welcome Parliament’s decision to deal with the slow pace of land reform and for the possibility it presents to move us forward from the current ineffective model of land reform. WFP is of the view that land redistribution has failed in terms of the quantity of land transferred. The model of land reform that was previously applied focused exclusively on the de-racialisation of commercial agriculture without problematising the model of agriculture or its objectives. The methods of land reform, such as the ‘willing buyer/seller’ have served to disempower the black rural poor and made them observers in a process in which they should have been at the centre. They believe that Section 25 allows enough scope for expropriation without compensation and that not enough is being done to enforce current constitutional and legislative stipulations. It is their submission that Section 25 and existing legislation should be tested in court to set a precedent that will prove that expropriation without compensation is possible within current legislative frameworks.
A limit must be placed on the size of agricultural land that a farmer can own. Government must impose land taxes on those owning large or multiple farms. Penalties should be imposed on owners who have unused agricultural land. The state should also start a process of expropriating unutilised land, with redistribution as its specific aim. Within existing legislation, a clear plan must be developed for expropriation of land. Expropriation must take place with limited or no compensation and clear timeframes must be linked to land acquisitions and distribution, and also contribute to spatial integration. Owners with high concentration of land holdings should be targeted for expropriation.
Dr Lotriet said WFP stated that Section 25 is not explicitly clear on how compensation and expropriation of land should be done. However they have contradicted themselves in 3.3 stating that Section 25 allows enough scope for expropriation without compensation. She asked that they clarify their opinion on whether the section should or should not be amended for expropriation without compensation.
Mr Filtane said WFP has been explicit that the rights of women to own land have been violated by the state and farm owners continue to evict women out of their homes. However, WFP believes that Section 25 already allows for the expropriation of land therefore there would be no need for an amendment. WFP is somewhat contradicting itself because the amendment of Section 25 would further the call for women to own land and put an end to farm evictions. He asked WFP if they agree that amending Section 25 would further the agenda for women to own land.
Mr Koornhof said the tenure of farm labourers is a huge issue, and the subdivision of farm land is not possible in South Africa yet. There is a huge debate whether Section 25 should be amended to allow for expropriation without compensation. The majority of legal experts will argue that an amendment is not necessary, yet there are experts who believe the amendment will bring constitutional security to make it easier to expropriate without compensation. He believes that Parliament should first get legal certainty on whether the Constitution needs amending before causing an uprising. He asked if the tenure of labourers can be solved without amending the Constitution.
Ms Mokwele said the public does not get enough opportunities to interact with Members of Parliament. The WFP should have received more time to make their submission seeing that the previous speakers who were supposed to present, were not present. The EFF has assisted many families in the Western Cape who were evicted from their homes under the government of the Democratic Alliance. She said WFP was not clear whether they support that Section 25 should be amended to allow for expropriation without compensation and who the custodians of the land should be.
Mr Smith asked what the land ceiling should be.
Ms Colette Solomon, Director, replied that they support the expropriation of land without compensation. The Constitution is vague on expropriation of land without compensation and it may take longer to expropriate land. The evictions on farms are due to a lack of land ownership by women and black people. The state should be the custodians of land; however, it should clearly outline who the beneficiaries will be. It should guard against elite capture and patriarchal tribal land. In the event there are no title deeds for individuals, the individual should receive long term security title on land if the state continues to be the custodian.
The Chairperson thanked all the presenters for their input and for being part of this important process.
The meeting was adjourned.
- Association for Rural Advancement submission
- Brian Musto submission
- De Rebus article explaining Section 25
- Zinasele Kani submission
- Women on Farms Project submission
- Tshwane Inner City Arts and Culutural Heritage Forum submission
- Land Access Movement of South Africa submission
- Azanian People's Organisation submission
- African Farmers' Association of South Africa submission
- Karabo Molema submission
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