Section 25 review of Constitution: oral submissions

Constitutional Review Committee

26 October 2018
Chairperson: Mr S Maila (ANC) and Mr L Nzimande (ANC)
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Meeting Summary

VIDEO: Constitutional Review Committee Oral Presentations, 26 October 2018
Report of the High Level Panel on the assessment of key legislation

The Committee held the last of the public hearings on the question of the Amendment of section 25 of the Constitution and expropriation without compensation.

The FW De Klerk Foundation stated that land reform and the expansion of property rights to all South Africans was of the utmost importance but, together with numerous respected jurists, the Foundation believed that it is not necessary to change section 25 of the Constitution to effect land reform and extend property rights to all South Africans. The Foundation championed the ideas of a special purpose vehicle with high calibre individuals and a thorough land audit needed to take place in order to achieve faster land reform in South Africa.

Members asked if the Foundation feared political unrest should there be a change in the Constitution. Did it not think that there was a greater chance of political unrest if the Constitution were not changed? The most vulnerable people in South Africa (black people), were deprived of land. How was the Foundation responding to that? When the Foundation spoke of just and equitable compensation, could that include zero compensation? Was there time to unpack a special purpose vehicle? Was it not in the public interest that all in South Africa had unhindered and equal access to land

Mr Brian Musto, a representative of 100 taxpayers, said that expropriation of any property was a blunt instrument and an invasion of property rights, whether compensation was paid or not. It should be used as the exception rather than the rule. The Land Reform program was a constitutional imperative but by 2018 most legitimate land claims had already been settled. The majority of SA’s population was urbanised and those Municipalities providing low cost housing and serviced stands needed more assistance. Even though cash strapped, the fiscus would have to spend money on that issue. Hardly any countries in the world had tried expropriation without compensation. The few that had, had done so with devastating economic consequences. The current Section 25, without amendment, was the sole legitimate mechanism whereby the State could undertake land reform which would not undermine property rights, food security and jobs. Parliament should always act legitimately. To do otherwise, would be to undermine the very fabric of the Constitution setting the country on the path to an autocracy and abuse by whoever came into power in the future.

A Member noted the reference to the 10 Commandments in the Bible: “It is clearly also a breach of at least two of the 10 Commandments, stealing and coveting the property of others." The Member asked who had stolen from whom. Other Members asked to what extent could a reasonable man could compare Zimbabwe to South Africa, except to insult the people of South Africa, if land expropriation was done in a legitimate way. What else was common between South Africa and Zimbabwe except that the two countries were in Africa? Was there not a need for the Constitutional Court to give the correct parameters, given the different interpretations of Section 25? What was the alternative to speeding up land reform?

 

The Association for Rural Advancement, a non-governmental organisation established to assist the marginalised black people to resist forced removals and currently working towards an inclusive, gender-equitable society, presented various proposals for the Committee to consider.

 

The proposals related to amending the Constitution, testing of the current section 25 of the Constitution and other Land Reform policies and legislation. The Association believed that labour tenants were a good test case for expropriation without compensation. Given that they already resided on the land, they would not pose a threat to economic growth and that the landowner was already not profiting from the land upon which they resided. Parliament and leaders of organizations needed to initiate and facilitate a process that would allow long-term sustainable solutions to achieve land reform. The Association was calling for a much deeper conversation on the issue.

Members asked about the reference to April 1997’. Why was that date used? Would AFRA like a discussion first and then a test case or vice versa? On question of the transfer of land to tenants, what would be the form of the transfer of land? Would it be full ownership with title deed of land?  Who should retain permanent ownership of the land?

The Johannesburg Attorneys Association (JAA) represented the interests of some 2 500 plus attorneys practising in the greater Johannesburg area. The Association believed that the Committee was constrained in its enquiry to the issue of expropriation of land without compensation and it would be impermissible to alter the portions of S25 of the Constitution that related to the broader category of property. In its current form, the Constitution allowed for expropriation without compensation in particular circumstances. However, as a general rule, the Constitution and international law ­­­­created an obligation to pay compensation when land was expropriated. The Attorney’s Association stated that South Africa had an internationally lauded Constitution premised on freedom, dignity, and equality and had never altered the Bill of Rights. The evidence showed that there was no reason to do so at that stage.

Members asked if the nation were in breach of international law, could it be subject to sanctions if expropriation without compensation were instituted? The Attorneys Association had mentioned that the country had a dark  history of land theft. How did they, as lawyers, deal with theft? Did they compensate for stolen property? In the Association’s analysis, why had some people taken cash instead of land? Were Mr Mashaba and Ms Zille flouting international law in expropriating land?

The Centre for Development and Enterprise had two main recommendations. Firstly, the Centre recommended the establishment of an action-oriented public-private partnership comprising senior leaders in government at all levels and the private sector, including agri-business and the property sector. It should be a presidential task force with its own budget, reporting every six months to Parliament on progress with respect to land issues. Secondly, the partnership had to be supported by the allocation of more funds to ensure land reform and to make use of the pre-existing “just and equitable” clause of the Constitution.

Members asked if land was only used for the economy, or was it necessary for dignity. Currently, agriculture contributed a little over 2% to GDP, while construction contributed about 4% to GDP Could CDE imagine the labour that would be needed if there was land to construct millions of houses? There were greater numbers of people in urban areas. What did CDE propose to deal with that?

The following meeting would deliberate on all submissions in preparation for the report to the House of Assembly.

Meeting report

Opening remarks

The Co-chair, Mr Nzimande, opened the meeting and stated that it would be the last session of the consultation on the possible Amendment of Section 25 of the Constitution. He said that the joint rules of Parliament would apply as people engaged with the presenters. He said that from the following week, the Committee would be considering what the Committee would include when finalising the report to be submitted to the National Assembly.

The current meeting was convened in line with the directorates of Sections 59 and 72 of the Constitution of the Republic of South Africa, which pertained to Public Access to and Involvement in the National Assembly and the National Council. The presenters were at liberty to exercise their rights and privileges according to the Constitution.

The FW De Klerk Foundation was invited to make its presentation.

FW De Klerk Foundation

Dr Theuns Eloff, Executive Director of the FW De Klerk Foundation was accompanied by the Director, Centre for Constitutional Rights, Ms Phephelaphi Dube, and the Director, Centre for Unity in Diversity, Zohara Dawood.

Dr Eloff stated that, as per Annexure A of their submission, the Foundation’s position was that land reform and the expansion of property rights to all South Africans was of the utmost importance but the Foundation was opposed to an Amendment to the Constitution.

The FW de Klerk Foundation made a presentation on its earlier written submission on the possible amendment to section 25 of the Constitution. The Foundation regarded that question as being of central importance to the future of South Africa - not only for successful land reform, but also for the future of property rights, the future of the economy, and the future of race relations in South Africa. 

The Foundation stated that it had the support of numerous respected jurists, including the late Arthur Chaskalson CJ, as well as the High Level Panel appointed by Parliament and led by former President Kgalema Motlanthe. The Foundation believed that it was not necessary to change section 25 of the Constitution to achieve land reform and extend property rights to all South Africans. 

Contrary to the view expressed in the parliamentary motion, the willing seller policy, and other provisions of section 25 of the Constitution had not been the main factors hindering effective land reform. According to the High Level Panel Report, the failure of land reform could be ascribed primarily to the incapacity of the relevant government departments, and to corruption. The present formulation of section 25 and a proper legislative framework could, and should, be used to speed up the land reform process and to extend property rights to all. 

The Foundation believed that an amendment of section 25 to allow expropriation without compensation (EWC) would have extremely negative political implications for the country, including political instability and even anarchy. It would all but destroy the national accord reached in 1994 and 1996. Economically speaking, it was simply not possible to amend section 25 to allow for EWC without harming agricultural production and food security severely, and without very negatively affecting future investment and other sectors of the economy, contrary to what the parliamentary motion and the ANC’s resolution at Nasrec expressly intended. 

From a legal point of view, an amendment to section 25 that targeted a specific group of South Africa’s population, would run contrary to the “law of general application” of section 36(1)(a), specifically the principle of equality. In addition, should the amendment remove the reference to just and equitable compensation and the jurisdiction of the courts to determine this, it would infringe upon one of the foundational values of the Constitution, namely the Rule of Law. 

The Foundation’s strong views in that regard did not, however, mean that it supported the status quo on property rights and land reform. 

Discussion

Mr V Smith (ANC) said there was no dispute with regards to legislation in line with Section 36. With regards to Mr Eloff, who had said that changing the Constitution could lead to political unrest, he argued that there was a greater chance of political unrest if the Constitution were not changed, because of the greater number of people who had such an expectation. What was his comment pertaining to that?

Secondly, Mr Smith said that there were numerous people to whom the Committee had listened over the past few weeks who argued that there needed to be an explicit clause in the Constitution which stated that there should be expropriation without compensation. He believed that those who were learned came to Parliament and said that it was enshrined in the Constitution. However, those who were most in need of the land did not have the same level of understanding as the Foundation had. All they were asking for was that it should be put in explicitly in order to avoid dispute. What was his comment?

Dr G Koornhof (ANC) stated that in its submission, there was no doubt that the Foundation was in favour of land reform or that it believed that there is no need to amend section 25 of the Constitution because, currently, expropriation of land without compensation was possible. In the article in Network 24 on 20 August 2018, maybe Ms Phephelaphi Dube could also comment on it, the Foundation had stated that Section 25(2) was a critical subsection to the Amendment ,' the principle of expropriation without compensation must be the exception to the general rule, stated in 25(2), but the detail must be in a new Expropriation Bill." He asked why it would be wrong to amend Section 25(2) to say the principle of expropriation without compensation had to be an exception to the general rule and to put the detail into the Expropriation Bill? Why would it be wrong?

Secondly, the foundation had also suggested an amendment to Section 25 (4)(b) which defined property as land when dealing with expropriation with compensation. Why would it be wrong to put that in an amendment to the Constitution? On the point of a judicial review, he fully agreed. He wanted the Foundation’s comments regarding the above.

Ms T Mokwele (EFF) said that it had been mentioned the day before that every time white people appeared, they disagreed with amendment of the Constitution. Whenever a black person appeared with them, the black person disagreed regardless of whether they were in business together, etc.  She said that the 1652 mob had divided itself amongst subcommittees.

A point of order by Mr A Swart (ACDP) was raised, stating that Ms Mokwele’s comments were not clarity-seeking and were objectionable. Respect had to be given to presenters.

The Chairperson said that he had pleaded with Members. The Chairpersons could not dictate what they could say and could not say, but they should respect presenters. The presenters were at liberty to make statements themselves.

Ms Mokwele continued, saying that that observation of hers would assist the Committee in their deliberations on the report to be written. She said that the lady was representing different organisations, giving the same argument. The FW De Klerk Foundation was founded in 1999, if her memory served her well, and was founded to preserve and promote the legacy of FW De Klerk. She said they claimed to advocate for peace. However, if the most vulnerable people in South Africa (black people), were deprived of land, how were they responding to that? In the presentation, the Foundation had mentioned that there would be war.

Mr Swart raised a point of order. He said that Ms Mokwele’s comments were objectionable in the strongest terms. Ms Mokwele had claimed that the presenter was busy preparing his people for war.

There was commotion in the Committee Room at that point.

The Chairperson explained to Ms Mokwele that she needed to observe a point of order when it was raised.

Mr Swart said that Ms Mokwele’s aspersions about that the presenters were preparing for war was objectionable and outrageous. He said that Ms Mokwele had exceeded her time.

Ms Mokwele said that she was not going to be intimidated by reactionary people. She said she was going to raise her issues based upon what the institution represented. She said it had to be made clear to people what they were dealing with.

A point of order was raised by Ms G Breytenbach (DA). She said that the purpose of the meeting was not to interrogate the organisation, but to listen to the presentations and ask questions for clarity. It could not be allowed that the platform be abused for political means. She asked the Chair to act and take a firm decision regarding this. She said that what was happening was an embarrassment.

Chairperson Mr Nzimande said that the Ms Mokwele needed to be relevant. She had been engaging in deliberation. He said that Ms Mokwele was out of order, regardless of whether she liked it or not.

Ms Mokwele said that she was still asking questions and could not be denied that right. She asked what rule was being referred to. She said that the mob of 1652 could not be allowed continue. The Chair said that she had one minute to make her point.

Ms G Breytenbach (DA) said that she was waiting to make her point of order. She said that the Member had been waffling. She had yet to ask her question.

There was commotion in the House.

Dr C Mulder (FF+) said that some people took the issue very seriously and, as the Honourable Member had not been in Parliament for a while, she needed to go to a workshop so that she understood what Parliament was about.

Ms Breytenbach said that there were two Chairpersons but they could not control the meeting. She said that Ms Mokwele needed to be called to order. The Committee could not proceed with the way that she was behaving. Ms Breytenbach felt very uncomfortable listening to her.

The Chairperson called Ms Mokwele to order.

Dr A Lotriet (DA) said that she wished to apologise to the presenters. Her first question had also been asked by Mr Smith. She asked about the implied versus the explicit meaning of Section of 25. She asked about the Foundation’s views on just and equitable compensation. Could that include zero compensation? She also asked about the Foundation’s view on the tension between just and equitable access and just and equitable compensation.

Mr Swart said that what was happening was an embarrassment and he wanted to apologise to the presenters on behalf of Parliament for the way that they had been treated. There was a need to treat one another with respect and to try and find solutions.

Mr Swart asked whether there was time to unpack a special purpose vehicle. Secondly, he said that the issue was that many presenters had already mentioned that there was sufficient provision in Section 25, under certain circumstances, to expropriate land without compensation in the present formulation. Other people said that it was unclear, which was why there was a need for an Amendment.  He asked whether a possible solution was to approach the Constitutional Court to give clarity about the existing parameters of Section 25 in order for everyone to have a better understanding.

Mr M Filtane (UDM) summarised what the Foundation had offered. It had offered a wide array of alternatives for giving land to the landless. He appreciated that. He asked whether the Foundation thought that land grabs were a clear demonstration of extreme hunger for land, given that those who did occupy the land, built houses, etc. Was it not in the public interest that all in South Africa had unhindered and equal access to land, which was a constitutionally backed requirement as stipulated in section 2 without having to rely on ad hoc applications? He said that the suggestion by Zohra Dawood that people who needed land for agriculture, a factory, etc. be identified as if they had to queue up one by one begging for their land, was a burdensome administrative process, and the approach was  questionable in solving an age-old political problem in South Africa. She could provide a rounded response instead a of piecemeal response. 

The Chairperson said that during the public hearings, there were white people who had argued for the Amendment of Section expropriation of land without compensation. That was also true of Dr Marcus from the University of Pretoria, who was white, judging by his accent, so the presenters need not respond to the comments about white people opposing the Amendment. He said that the presenters could just stick to answering the questions.

Response

Dr Eloff’s responded to Mr Smith's question. He said that the greatest need of people was to get out of poverty and to find jobs. That was well-documented. The Foundation did not believe that agricultural land, even though it was important, was the greatest need. Urban land was more important. Illegal land grabs had already increased. If there was a blanket change of Section 25, it would lead to political unrest as those people would not wait for processes and legislation. The Foundation did not dispute the fact that people wanted land, but it believed that it was well-documented that people wanted land for housing. That did not mean that agricultural land was excluded. The Foundation supported a speedy process to accelerate land reform.

 

In response to Dr Koornhof's question, he said that the article in Network 24 had been written after the President had said that Section 25 would change. It was an analysis and he could not comment on behalf of the Foundation regarding that. Politics was the art of the possible. If the Committee should decide that there were some preferable options and other less preferable options, he believed that the Constitution presented something of an Accord, especially through the Bill of Rights, and that it could be done without tampering with the Constitution. The Foundation believed that the rules should be equitable and just compensation should be offered. There could be an exception to the rule, but most importantly, the courts had to decide, not politicians or anyone else.

 

Dr Eloff said that Dr Lotriet’s question was a difficult question. He said that if he looked at the different categories that had been raised in the public debate, e.g. abandoned land or land on which people had lived for decades, he could imagine that, in those cases, there was little compensation to be paid. For him, the principle was that it should never be zero, but it could be R1, a nominal amount. There should be a transactional approach and the courts should make the decision.

Dr Eloff agreed with Mr Filtane that there was land hunger. However, the people who had greater power to change the situation were the municipalities and state-owned enterprises, such as Transnet, which owned large tracts of land. The Foundation proposed that a legislative framework, together with the special purpose vehicle, must cut through all the bureaucracy to make sure that hunger must be addressed.

Ms Phephelaphi Dube replied that the question about just and equitable compensation was a crisp, legal question. It took into account the three tenets of land reform in Section 25, namely restitution, redistribution and the creation of secure tenure. Just and equitable access was in line with the fact that Section 25 was really a socio-economic right. Redistribution and security of tenure was the same as the right to housing and the right to social security in that it was a qualified right, which was not immediately available. Restitution, on the other hand, was different. Restitution was about a right which had been previously owned and lost. Restitution was immediately available. It came down to the legality of it and how it was framed.

Ms Dube responded to the clarity-seeking question about how redistribution worked and the legality regarding the redistribution and who exactly would be a beneficiary of land redistribution. The presentation had made that point with regards to what the High Level Panel had established. Because there was no all-encompassing piece of legislation, there was a lot of policy uncertainty. The country needed redistribution through the Proactive Land Acquisition Strategy (PLAS). In terms of that strategy, it was about government acquiring farms, holding those farms and granting a number of leaseholds to identify beneficiaries. The problem with that was that those individuals did not have title deeds and without support from the state, they were unable to access any kind of mortgages or loans, which had led to a high rate of failure on those farms.  A legislative framework which properly identified beneficiaries was needed.

Another issue which the High Level Panel had flagged was that because there was so much leeway, it had led to a kind of state capture within the agricultural sector and individuals who should ordinarily be able to access the market on their own benefitted, instead of those who were in need of restitution.

Ms Zohra responded to Mr Swart. She said that a special purpose vehicle was, in some way, similar to that which had been created by the Department of Justice in 2010. It was a legal entity created to fulfil narrow, specific or temporary objectives. It had to be ring-fenced because it had very narrow terms of reference. She recalled the days in which SARS was under the control of Minister Gordhan. SARS had wanted a high calibre team to deal with the matter and the team had to report to the President. The logistical and administrative architecture of such a vehicle needed the best brains and a timeframe.

Mr Eloff added that, according to the Motlante Report, the capacity in the Department was not good. Secondly, a special purpose vehicle would be able to cut through from national to local and across all departments.

The Chairperson thanked the FW De Klerk Foundation for its presentation.

Representative of 100 Taxpayers - Mr Brian Musto

Mr Brian Musto said that he was an active participant in the Financial Services Sector and represented mostly urban taxpayers. His supporters were not averse to land reform as long as it did not involve the destruction of property rights which would irreparably harm the economy.

Mr Musto asked, given the economic backdrop in South Africa, why some still advocated policies of expropriation that had failed miserably in Zimbabwe where it had led to economic collapse, as well as the exodus of hundreds of thousands of Zimbabweans who currently earned their livelihood in South Africa. The economy of Venezuela, which had attempted to replace farmers with peasants on expropriated land, was in free fall as its citizens continued to flee the country. The inflation rate there would hit 10 million percent in 2019.  Because unemployment was such a huge problem in South Africa, politicians kept scratching their heads for a quick fix. The EFF’s slogan “Expropriation without compensation” was adopted largely under the influence of the populist Jacob Zuma without thought for the economic consequences and, especially, its impact on the poor.

Section 25(4) of the Bill of Rights reaffirmed the nation’s commitment to land reform. Statistics showed that to date the land reform process had virtually been completed. Over the last 23 years, the land claims court had resolved over 95% of the claims that had arisen. Over 1.8 million individuals had received compensation either in the form of land or money and fewer than 3 500 claims remained unresolved. Could further land reform be justified and should the State continue to meddle with property rights ?

The best thing Parliament could do at that time was to restore local and overseas investor confidence in property ownership by affirming that section 25 of the Constitution set out the only basis on which land could be acquired by the State in the public interest. Many influential leaders including former Presidents Thabo Mbeki and Kgalema Mothlanthe as well as Patrice Motsepe supported an unamended section 25. They preferred to protect the Bill of Rights, not undermine it.

A clear exposition of the reasons why section 25 need not be amended to achieve the nation’s commitment to land reform was contained in an article in the August 2018 issue of the SA Attorneys Journal De Rebus, a copy of which he was handing in. The authors (Hopkins & Adendorff) concluded: “Thus looking at the structure of section 25 the following is apparent - - - the amount of compensation may vary from anywhere between zero and market value depending on what is just and equitable in the circumstances; - - A nominal amount of compensation may be regarded as just and equitable in some circumstances; and - even where a nominal amount of compensation is required the state may nonetheless elect not to pay anything at all, in which case the owner’s rights may be limited, but the limitation could still be lawful if it is a reasonable and justifiable limitation in the circumstances. (section 25(8) and section 36).

Three cases of the latter possibility come to mind: 1) Premier Helen Zille had indicated that section 25 could be used to expropriate private land diminished by sand farming for minimal compensation in order to properly house the people of IsiQalo on land in the Cape Flats; 2) Mayor Herman Mashaba wanted to expropriate absentee slumlords in Johannesburg in order to revamp 500 central city buildings into affordable housing units. It was probable that those buildings could be expropriated under section 25 for minimal or no compensation. 3) Organisations such as the Association for Rural Advancement said that farmland occupied by labour tenants should be confiscated and given to the tenants. To the farm owner that was patently unfair. However, that was exactly the type of situation that section 25 was designed to address. It was up to the courts to ensure fairness and determine what compensation, if any, was payable to the farm owner.

Expropriation of any property was a blunt instrument and an invasion of property rights whether compensation was paid or not and should only be used as the exception rather than the rule. The Land Reform programme was a Constitutional imperative but by 2018 most legitimate land claims had already been settled. The majority of SA’s population was urbanised and more assistance was needed by those municipalities which were providing low cost housing and serviced stands.

Hardly any countries in the world had tried expropriation without compensation. The few that had done so had experienced devastating economic consequences. The Committee had to do the right thing, not the populist thing. It had to recommend that the current Section 25, without Amendment, was the sole legitimate mechanism whereby the State could undertake land reform and not undermine property rights, food security and jobs. Parliament had to always act legitimately. Even if it had the power to do so, it should never approve Amendments to the Constitution which, per se, were unjust and inequitable. To do otherwise would be to undermine the very fabric of the Constitution, setting the country on the path to autocracy and abuse by whoever came to power in the future. 

The Chairperson invited clarity seeking questions.

Discussion

Ms Mokwele said that in the presentation, Mr Musto mentioned the 10 Commandments in the Bible. "It is clearly also a breach of at least two of the 10 Commandments, stealing and coveting the property of others." She asked who had stolen from whom.

Co-chair Mr Maila said that Ms Mokwele should ask questions, and not deliberate.

Ms Mokwele said that she would quote in order to give context and would be liberal with the quotations.

She asked the presenters who was lying and who had stolen from whom. The presenters had described how the land had been stolen. Ms Mokwele said that it was unfair that she was always being interrupted.

The Chairperson said that he was trying to protect her but there was also an issue of time.

Ms Mokwele became annoyed and said that she was being denied her right and was being delayed.  

Dr Koornhof said that there had been a resolution to limit each Member to five minutes.

Ms Mokwele said that the mob was interrupting her. She engaged in a dialogue saying that she would not be intimidated.

Mr Smith agreed that each Member had only five minutes.

Mr Swart stated that the agreement had been to focus on questions of clarity.

The Chairperson said that Ms Mokwele did not have the right to interrupt Members, but could ask questions. She needed to limit herself.

Ms Mokwele said that she would not be derailed from her mission. She noted the 'ridiculous, populist slogan' on page 20. She said that, based on people's calls to expropriate land, the ‘ridiculous’ slogan was coming from the most vulnerable people in South Africa. She asked whether, in his thinking, South Africa could only be sustained as long as ‘property’, i.e. land, was in the hands of the white minority vis a vis the black majority who did not have access to land.

Mr Filtane said that he did not intend to belittle such a great problem in South Africa as the presenter had just done. To what extent could a reasonable man compare Zimbabwe to South Africa except to insult the people of South Africa, if land expropriation was done in a legitimate way? What else was common between South Africa and Zimbabwe except that the two countries were in Africa? The presenter had claimed that most land claims of 1998 had been settled. He said that, as a lawyer, Mr Musto should know that there had been a Constitutional Court judgement in 2014, that land claims needed to be halted. That related to 100 000 claims.  Mr Musto was suppressing that information to create a false impression that there was no hunger for land. Why had he done that?

Mr Filtane stated that there were highly skewed land ownership patterns in South Africa. It needed an exceptional approach, like no other country. Why was Mr Musto saying that there need not be an exceptional way of treating an exceptionally skewed land ownership pattern? Why was he suppressing a legitimate, centuries-old problem?  What was he trying to achieve?

Mr Swart said that, as a lawyer, he wanted to know whether Section 25 in its current form allowed for expropriation with reduced compensation. Was there not a need for the Constitutional Court to give the correct parameters, given the different interpretations of Section 25? With reference to the Judeo-Christian faith and the Bible, was not the solution the Land Rights Act, which was a Biblical process, restitution with compensation? Some of the reasons why it had not succeeded were due to exorbitant prices asked, incapacity and corruption. Mr Musto had indicated that most of those claims had been settled. Mr Swart’s information was that it was not so. Many of the claims had not been settled. Was that where one should look first, at the Land Rights Act with its biblical basis of restitution with compensation?

Mr Smith asked what alternative Mr Musto was proposing to address land inequality. What was the alternative to speeding up land reform? Was he saying that expropriation was a total no-no?

Response by Mr Musto

Mr Musto said that with regards to the 10 commandments and coveting somebody else’s property, the arguments about what had happened historically could be bandied around but would go nowhere. One could not restore land to or compensate for what had happened to those who were no more. To those that were alive, EWC which was suggested by the EFF, was a non-starter and would not work in South Africa.

Ms Mokwele rose on a point of order.

The Chairperson said that he first had to deal with the comment that Mr Filtane had made. Mr Filtane's language had been wrong and there was no need for it.

Mr Filtane apologised.

Ms Mokwele said that there was a tendency for white people to come to Parliament to insult black people. She said that Dr Lotriet needed to be called to order. She said that the presenter was undermining black people. She said that the EFF would take the land whether the white people liked it or not. She said that the EFF was not afraid of the presenter. Those people needed to be confronted.

The Chairperson warned that Ms Mokwele's contribution could be taken as threatening.

Dr Lotriet said that it was for the Committee to listen and not to attack the presenters. She said that it was not for the Members to tell them that they were wrong.

The Chairperson disagreed. It was legal to disagree vehemently. It was a constitutional right.

The presenter stated that people had put their money into their property and that was their capital. One could not just deprive them of that. He was not protecting white farmers. He added that the number of white farmers had reduced from about 130 000 to about 43 000.  Farming was an expensive exercise and that if the farmers were becoming fewer, more black people were acquiring farms. If one looked at the Eastern Cape and Western Cape, there was subsistence agricultural land. If there was a desire to turn SA into a subsistence agricultural economy,  EWC was the way to go. The Committee was wrong to think that there had been no transformation. It was happening. Secondly, with regards to farm workers, if a million former farm workers were in the town and looking for jobs, that was because the farmers had given up farming. Those people had become the responsibility of the municipalities but those very same municipalities were collapsing. So far, a certain sector had been broken down and the result was all the farm workers without homes. He said that there needed to be a slow-down and government had to take the foot off the acceleration.

Mr Filtane interjected and said that the Committee needed to move on and that the presenter could go.

Mr Musto said that he had been accused of certain things but he was in good company with the Reserve Bank, etc. He said by undermining one part of the Constitution, other parts of the Constitution would be undermined.

The Chairperson thanked him for his interest and participation.

Mr Musto asked to hand out article. The Chairperson agreed that he could give it to the Secretary.

Inkosi E Buthelezi (IFP) said the Chairperson would have to excuse him if he left but he would not subject himself to the terrible conduct by Members who were rude to presenters. Mr Swart had asked a question and he had wanted to hear that answer.

Association For Rural Advancement

Ms Nompumelelo Kubeka and Ndabezinhle Ziqubu, Community Development Advocate, from the Association for Rural Advancement (AFRA) introduced themselves. AFRA was an NGO established in 1979 to assist marginalised black people to resist forced removals. The organisation had since evolved  and was currently working towards an inclusive, gender-equitable society where rights were valued, realised, protected and focussed mainly on farm dwellers. In relation to the question at hand, there had to be a certain way of going about it and their approach was informed by what was coming from the ground.

The first proposal related to amending the Constitution. One of the issues with that section was that there was no mention of the words ‘expropriation without compensation’. In amending the section, it had to be explicitly clear. Land was a form of property. However, to ensure that land rights were realised and protected, and that people had secure tenure, one might want to look at the separation of the right to land from that of property. For land rights to be realised, the property such as jewellery and vehicles need not be expropriated. The High Level Panel had made recommendations for the need for a multi-stakeholder structure. That panel had been recommended by Parliament. AFRA believe that that was a good mechanism.

The second proposal related to testing the current Constitution and other laws and policies for land reform. It was evident that there had been a heavy reliance on market value when determining the amount of compensation, which was only one factor in terms of Section 25(3) of the Constitution. There had been no application of other factors, i.e. current and historical use of property, its acquisition, the extent of state subsidies and the purpose of expropriation. If one had to apply all of the above factors, one could actually arrive at zero compensation. That was because Section 25(3) talked to a just and equitable amount. The plea of AFRA was that if the recommendation was to amend Section 25, it needed to be tested by applying all of those factors to see if zero compensation could be reached.  A classic example would be the case of labour tenants in relation to the land which they were currently occupying. AFRA was of the view that in applying the above factors, one could arrive at zero compensation for their land because labour tenants currently lived on the land and used the land. Transferring the land to them would not affect food security, destabilise the agricultural sector or undermine the economy. Moreover, the land owner did not derive any direct benefit from such a piece of land. The current occupiers who could form a test case against the current Constitution.

The Extension of Security of Tenure Act 3 of 1996 as well as the Labour Tenants Act of 62  of 1997 formed part of a process which was aimed at achieving land reform. However, as per the High Level Panel findings, the process had been slow. In order to fast-track that process, some groundwork needed to be done. If that section was to be retained, then the Expropriation Bill had to be finalised in order to allow expropriation without compensation. It remained clear that whether there was an Amendment or not, Parliament and political parties leaders needed to facilitate a process in which there would be long-term solutions in order to achieve land reform. With regard to finding those solutions, AFRA was calling for a much deeper conversation about the issue. All the processes initiated by the Committee had opened up the conversation. What people needed on the ground was the implementation of land reform. For that to happen, there needed to be an inclusive and constructive process. The process needed to be a multi-stakeholder process, which included people on the ground, relevant government departments, academics and experts.

In conclusion, AFRA was of the view that the inclusive process should pick up where the High Level Panel had left off.

The Chairperson thanked the presenters.

Discussion

Dr Mulder thanked the presenters for an eloquent paper. The pages were not marked but on what he believed to be page 5, AFRA gave different options: Full compensation, no compensation, partial compensation, under certain circumstances. That was a very interesting component which the Committee had not seen. He asked about the section which stated: ‘acquired after April 1997’. He inquired about the date. Why was that date used?

Mr Swart thanked AFRA for the presentation in which they had made various proposals. One of their proposals was a test case for expropriation without compensation. As a lawyer, he thought that could be an answer for section 25 because at the moment, should a test case be brought to the Constitutional Court to lay the parameters, there would be no doubt as to how it should be applied. Would they be supportive of that?

Secondly, Mr Swart referred to the High Level Panel as stated in the presentation.  He asked if AFRA was supportive of the view that the government had not utilised its power to expropriate land under Section 25 as it stood, as stated by the High Level Panel, or was that one of their proposals?

Lastly, pertaining to the issue of going forward with a much deeper discussion, he said that was a very emotive issue, and he wanted AFRA to unpack how, as a rural organisation, they proposed that the nation proceed with the objective of obtaining nation building, reconciliation and peace in the nation.

Dr Lotriet’s question related to the test case and the chronology. Would AFRA like a discussion first and then a test case or vice versa? Secondly, on the transfer of land to tenants. What would be the form of the transfer of land? Would it be full ownership with title deed of land? 

Mr Filtane said that it had been an intellectually challenging presentation. On paragraph 3, one of the  proposals was a separation of land from the right of property. He asked who should retain permanent ownership of the land? They had chosen a very strong word, ‘right’ to property. Who should take the subservient option of rights, given the context of the motion which was being dealt with in Parliament. Would that option stabilise the situation, given land grabs which had even spilled over to rural areas? People were simply attacking mielie fields in rural areas like Butterworth. People came to towns in large numbers and simply said they were there to stay.

Dr Koornhof noted that AFRA had relied heavily on the High Level report. However, in their proposals, they were in favour of amending the Constitution. He wanted to know if he was correct to infer that.

Response by AFRA

In reference to the second question where AFRA had said there needed to be a test case, Ms Kubeka said that it was not clear that market value was adequate. There needed to be a test case, and it could be before or after discussions. Labour tenants were good for a test case.

Mr Ziqubu responded to the first question with regards to three different categories of  land owners with regards to compensation. There were three different categories: one was full compensation, one was partial compensation and the other was no compensation. AFRA believed that in terms of occupation of land, if one tested Section 25, there would be categories of farmers who would not be compensated. The reference there was to farm dwellers. They were currently occupying the land and were using it for different purposes and farmers were not getting any profit from that land. If the land were to be transferred to labour tenants, there would be no compensation to be paid. Partial compensation spoke to the different categories with respect to Section 25(3) which spoke of different elements which needed to be highlighted in compensation. If all elements were applied, compensation, in some instances, would be zero. While the process of amending the Constitution was underway, the current section had to be tested. EWC could be achieved. In terms of how AFRA saw the current process unfolding, it was unsure how it would be executed.

In response to question four about separation of land without property, it was very general and land was part of property. AFRA would focus on land and not on other forms of property. Some people should get full ownership, others should not. There were a lot of challenges with regard to land, particularly people living on farms. For them, tenure was only transferred in terms of a title deed. That was the only way in which they would feel secure. AFRA was advocating for full transfer of ownership of land to people who were landless.

The Chairperson said that there was a question regarding the time factor.

Dr Swart asked why AFRA was referring to 1997.

AFRA stated that it was a typing error.

Mr Koornhof asked for clarity regarding whether or not AFRA opposed the Amendment.

AFRO responded by saying that there needed to be deeper levels of conversation, with multi-stakeholder engagement, which included the people on the ground. As forgotten as they are, they were the ones who had the answers.

The Chairperson thanked the presenters.

Johannesburg Attorneys Association

Mr Mark Oppenheimer said that the Johannesburg Attorneys Association (JAA) had a proud eighty-six year history as South Africa’s largest voluntary attorneys’ association. It represented the interests of some 2 500 plus attorneys practising in the greater Johannesburg area, as well as the interests of the general public in certain legal matters. As it would be heard in the presentation, the issue of expropriation of land without compensation affected not only those expropriated and the State, but every person in South Africa. The JAA had accordingly considered the issue of whether section 25 should be amended (in relation to expropriation of land without compensation), and had obtained counsel opinion in relation to same. The submission contained the most important aspects of the issue as understood by counsel for the JAA and the JAA Executive Committee.

This submission addressed four issues. Firstly, the scope of the enquiry before the Joint Constitutional Review Committee; secondly, the State’s current powers in terms of section 25 of the Constitution to expropriate land without compensation; thirdly, the international law obligation on the State to pay appropriate compensation in cases of expropriation; fourthly, reasons not to amend the Constitution.

Firstly, given the narrow scope of the enquiry before the Committee it would be impermissible for it to recommend any changes to S25 of the Constitution that would alter the State’s current powers and obligations regarding the broad category of property. If any changes to S25 were recommended by the committee they could only be regarding land.

Secondly, there would be situations where no compensation was due after expropriation. For example, if the land in question had no market value, or where the amount paid by the state to subsidise the initial acquisition of the land was equal to or greater than the market value. However, as a general rule the Constitution did require the payment of some compensation that was just and equitable and it would only be in a narrow set of situations that no compensation would be due.

Thirdly, S39. (1)(b) of the Constitution states that “when interpreting the Bill of Rights, a court, tribunal or forum must consider international law.” In terms of international law, a State had the power to expropriate, but that power was accompanied by a duty to pay appropriate compensation. There might be circumstances where it was appropriate to pay no compensation, but each case would have to be determined on its own merits.

Fourthly, South Africa had a dark history of land theft. Justice required that the wrongs of the past were addressed by awarding compensation to the victims of land dispossession. Between 1995 and 2014 over 1.8 million individuals had received compensation either in the form of land or money. That had been achieved without the need to expropriate land without compensation and the strong inference was that the remainder of land claims could also be resolved without interfering with the Constitution.

Life involved trade-offs, one could remove property rights and have a flourishing economy. Foreign investors would not risk having their land confiscated in South Africa when they could pick any number of other nations that would protect their investments. South Africa had an internationally lauded Constitution premised on freedom, dignity, and equality and had never altered the Bill of Rights; the evidence showed that there was no reason to do so at that point. 

Mr Oppenheimer asked if he could respond to questions one at a time.

The Chairperson said that the presenters could not be given a different approach to responding to questions.

Discussion

Mr Swart asked if the nation were to be in breach of international law, could it be subject to sanctions if EWC were to be instituted? Secondly, as lawyers, did they not suggest that a constitutional court test case would give clarity with regard to the parameters of Section 25? Mr Swart reminded  the presenters that they could supplement their answers in writing if there was not enough time.

Dr Lotriet asked about the statement that South Africa would be flouting international law if adequate compensation were not given. She wanted the presenter to expand in terms of their understanding of international law if South Africa arrived at the conclusion that compensation should be zero.

Ms Mokwele noted that, on page 5, JAA mentioned that the country had a dark history of land theft. How did they, as lawyers, deal with theft? Did they compensate for stolen property? The Association also spoke about failed programs of expropriation. She said that it was the system that had failed. Why had they only mentioned cases like Venezuela and Zimbabwe?  Why had JAA not mentioned positive cases such as Mozambique? Was JAA trying to mislead the world?

JAA stated that some 92% of people compensated had taken cash instead of land. In their analysis, why had some people taken cash? Was it not the environment they found themselves in? Her last question was that  people were moving from poor to rich areas. They were moving because of the Group Areas Act. It was due to Apartheid spatial planning. As a legal person, how would Mr Oppenheimer advise Parliament to deal with the matter? Lastly, she wanted to check their affiliation, 1200 members. In terms of race, but many black and white members were there?

Mr Filtane asked if international law overrode the constitution? Would South Africans sacrifice their law to honour an international agreement? Secondly, looking at the budget, would JAA agree that they were looking at it from a land acquisition and land reform perspective  as opposed to right to advance the pure cause of restitution? Was JAA were simply looking at the purchase price? JAA said that property ownership would be undermined. He said that was a totally selfish protection of minority rights. Lastly, had it ever occurred to the JAA that the reason people took cash was because of a deeply eroded culture of cultivation of the land?

Mr Smith said that on page 5 the JAA made a bold statement. He would argue that it was entirely not true. The struggle in South Africa was about land, not about money. He said it was about dignity and they should not reduce the exercise to money. Secondly, the attorney, Mr Musto, had said there was no need to change the Constitution to expropriate land because Mr Mashaba and Ms Zille had done it. Were Mr Mashaba and Ms Zille flouting international law?

Response by JAA

Mr Oppenheimer stated that money was a transferable asset class. People were given the right to choose and they had chosen money. Sometimes a specific piece of land mattered, and, as far as the restitution process was concerned, such land ought to be given to a person. With regards to dignity, all people were at jeopardy if land was taken without compensation.

Regarding the Mashaba Experience, what JAA did know was that the land value could be adjusted up or down. If it had been taken by force, there were grounds to take it with no compensation. Germany was involved in redistribution of land stolen by the Nazi's. However, for someone who had bought the property down the line, and had no knowledge of the theft, it created complexity. There needed to be an identification of people who had stolen land, as not all white people had stolen the land. He said that the assertion that all white people were land thieves went against what the Constitution demanded, which was non-racialism. For example, his parents had arrived in South Africa in 1933 with the clothes they had on their backs.

Ms Mokwele interjected. She wanted to check with the presenter that when dealing with a thief, there was a process that they followed, e.g. plot 175 had been taken in such and such a manner. When he argued that people bought land, it could be argued that such people never came with any land. Such people could be defined as land thieves.

The Chairperson said that there was no need to engage on that issue, because it seemed to be debatable.

Mr Oppenheimer stated that, with respect to international law, all states were granted the power to expropriate but appropriate compensation ought to be given. However, if there was piece of land which was available, there should be a fact-finding mission. The law had been used as a tool to perpetuate injustice. When drafting a law, one had to keep in mind that power changed periodically. The law could also be used as a weapon. If a change was made, it had be used for good. It would not always be the noble who would expropriate. What could happen was that South Africa could be taken to international Tribunals and South Africa could become a pariah state.

Centre for Development Enterprise

Ann Bernstein, the Executive Director for the Centre for Development Enterprise (CDE) said that In 2008, CDE had produced a major report on land reform. The proposals in that report had sought to ensure that justice was done, that land reform beneficiaries were permanently better off, and that South African agriculture transformed while continuing to attract investment, generate exports and to provide a growing number of good jobs. The CDE recommendations had been supported by BLSA and other organisations in the private sector and widely praised inside key parts of government. The recommendations remained relevant to the current concerns. All CDE reports on which the current submission was based were listed with links at the end of the document.

The enquiry into whether or not to amend section 25 and to sanction expropriation without compensation created a set of important concerns. While the prudent use of existing expropriation powers might be necessary and desirable if exercised in the national interest (especially if designed to test the appropriate interpretation of s25), CDE opposed any changes to the Constitution in that respect. Ms Bernstein provided a list of what CDE considered the real costs to expropriation without compensation and, especially, to changing the Constitution.

South Africa needed to place far more attention on the urban dimensions of land reform. People migrating to cities and towns needed places to stay that were close to economic, educational and many other opportunities. The vast majority of South Africans lived with insecure title in both rural and urban South Africa. That was a key dimension of land reform that received too little attention.

CDE would recommend two related actions. Firstly, CDE recommended the establishment of an action-oriented public-private partnership comprising senior leaders in government (including cities), and the private sector, including agri-business and the property sector. That presidential task force should have its own budget and report every six months to Parliament on progress with respect to land issues.  Secondly, the partnership should be supported by the allocation of more funds to land reform and, if necessary in the national interest, making use of the pre-existing “just and equitable” clause of the Constitution. 

South Africa needed a viable strategy for land reform that addressed real needs as quickly as possible with as little economic disruption as possible.  That would not happen if there were changes to the Constitution. 

The Chairperson thanked CDE for the presentation and allowed members to engage.

Discussion

Ms Mokwele referred to page 2 of the presentation which stated that “the President has subsequently reiterated that land reform would … unfold within a clear legal framework and would not affect economic growth.” If he said so, what then, if they allowed EWC, would affect economic growth? Land was not only used for economic growth. On page 3, bullet point 2, CDE said “Recipients of land that is expropriated without compensation may not be able to benefit from the value of the land that they receive. This will be the case, in particular, if recipients of land cannot sell or borrow against their new land.” Why was CDE saying that? Was land only used for the economy, or was it for dignity? CDE said that it dealt with business people, but it had never engaged with the dispossessed. What made CDE think that land was only for agricultural purposes?

Ms Mokwele noted that, elsewhere, the presentation stated: “There is evidence that most rural South Africans don’t want to be farmers. The vast majority of people want a secure place to stay and employment…” In the view of CDE, the only thing that the dispossessed people could do was work. They did not think that people could develop the land. People only needed land to stay on. CDE stereotyped people. It only engaged with the private sector.

Mr Filtane stated that economics had two sides: the supplier and consumer. The economy would enjoy great growth if there were be a boom in construction. If more people had more land, they would be able to build bigger houses. Compare the size of house in the suburbs to the size of a shack. Could CDE imagine the labour that would be needed? Currently, agriculture contributed a little over 2% to GDP, while construction contributed about 4% to GDP. CDE was pushing the Committee towards the narrow side to say that it had to respect agriculture.

Secondly, food production in South Africa was produced by a small percentage of commercial farmers. About 3% of farmers produced about 90% of the food. CDE was confining that large issue to a tiny agriculture sector. It reminded him of the painful experience in Canada where Europeans said that they would offer to be the fathers of the First Nations people. Was CDE saying that South Africans who were landless, instead of amending the Constitution so that they could have freedom and unfettered access to land, should be cowed under those fathers for life, i.e. commercial farmers who did not have a record of supplying access food to starving South Africans? Was CDE pushing them in that direction?

Mr F Beukman (ANC) said that there had been a great deal of focus on rural land and agricultural land in those proceedings. There would be a greater numbers of people in urban areas. What did CDE propose to deal with that?

Mr Smith asked if CDE was suggesting that the Committee would be held at ransom? It had to be nice to them because they would sabotage the country. CDE had said that the restitution process was in shambles. He agreed. The Committee knew that land had been a source of intergenerational wealth. Were they going to wait for a long time because of that? Was there any harm in changing the Constitution to include a sentence that made it explicit and incontestable?

Response by CDE

Ms Bernstein stated that, because of land needs and apartheid, there were pockets of land available. There was land lying fallow, as stated in an article published that day by two scholars. There were different land needs across the country. She could see that there was densification of cities. It might be about rental or it might be ownership. It was not land in a traditional sense. In the urban areas, you should be thinking less about land and more about people. People needed places to stay and access to work.

The way that CDE understood property rights was not that commercial farmers should hold South Africans to ransom. If one read the contribution of BASA and what Mike Brown was saying, it was that if one touched property rights, people might stop investing. One of the Senior Investment Ambassadors had said that he had walked the streets of London, and investors were mostly asked about land. The mere review by the Committee had made investors nervous. South Africa should build on the progress it had made to ensure that those people who wanted to farm were getting opportunities to farm, regardless of whether it was getting access to agricultural college or getting access to land. Ms Bernstein was impressed by what the sugar industry has done. They had put an enormous amount resources behind the programme. A lot of them had succeeded: 20 000 sugar cane growers. She believed that the matter had to be thought about in terms of the realities of agriculture and the realities of urbanisation. If property rights were touched, it would make investors who risked other people’s money nervous. It would affect investment in the country: urban and rural. It would set a chain of nervousness at a time when South Africa was desperate for increased investment. Property rights were fundamental to the type of economy South Africa had.

The whole purpose of government’s redistribution policy was to redistribute land to people who were farmers, which was different from restitution. She said that land was far more than economics due to some of the injustices suffered by people. She had tried to empathise with them. As far as she was concerned, it was no longer the 19th and 20th centuries. If one looked at how to move the country forward and create jobs for millions of South Africans, and deal with the wounds, the land was only about 10% of the value of a commercial farm.

Ms Bernstein said that property rights would affect the entire economy if those rights were undermined at all. Secondly, South Africa had to deal with the wound. It had to deal with redress. If that was done on a mass expropriation basis, she thought it would create chaos. What the Constitution did was that it allowed for individual and judicial supervision of land redress according to the circumstances of people, as well as the history they had faced. That was the best way to prevent chaos. There was also a need for clarity regarding how many people wanted to farm. Would they prefer urban land and security or rural land? There was a need to know more than was currently known.

Closing remarks

The Chairperson thanked all parties for honouring the meeting. He said that the time for debates would be the following week.

Dr Mulder asked about written submissions which they had not received and which would be helpful prior to the debate.

The Chairperson said that when the Committee met the following week, the report would cover that aspect as well.

The meeting was adjourned.

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