Themes Emerging from Land Dialogue workshop

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Meeting Summary

Parliament: Section 25 process

Parliament's Legal Services provided a briefing on themes emerging from the Land Dialogue workshop in the Committee's previous meeting. The briefing noted that the Committee should take international treaties to which South Africa is a signatory into consideration when amending section 25. However, this does not have to be a hurdle to the Bill.

The Committee deliberations focused on the meaning of 'land' and how international obligations should not be allowed to affect South Africa’s land redress. The Committee found that it needed more clarity on the parameters of its section 25 mandate, particularly on the matter of state custodianship of land. Although Members were unanimously in agreement on the Committee's mandate to amend section 25 to allow for land expropriation, individual parties did not agree on the content of what land expropriation should entail.

Meeting report

The Chairperson commented on the success of the recent workshop, stating that media monitors informed him that the workshop was well received by stakeholders. South Africa’s democracy is both representative and participatory, which necessitated the workshop to ensure the meaningful participation. He spoke of the importance of this Committee’s deliberations in the national endeavour of nation building. The Ad Hoc Committee was especially mindful of its responsibility to respect all opinions regardless of the size of the political party that represents them. He intended to ensure that each party's views and contributions will be given equal weight in the deliberations.

The Chairperson thanked Legal Services and commended them for being well prepared. He gave special mention to Judge Johan van der Westhuizen for the impartial manner in which he had conducted the Committee's Dialogue.

The Chairperson asked Legal Services to brief them on the themes emerging from Workshop.

Workshop Themes
Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, explained to the Committee that section 25(1) of the Constitution does not affect deprivation, therefore no amendment should be done for s25(1). Legal Services agrees with this view that no compensation is required in the case of deprivation.

Meaning and impact of “without compensation”
Adv van der Merwe said that Prof du Plessis from the North West University had stated that if the Committee chooses to use the words “without compensation” in the Bill, it would amount to allowing confiscation. She also raised the concern that South Africa’s international obligations requires that expropriation must be accompanied by compensation. Prof du Plessis said the term 'expropriation' is a legal term that always requires compensation. Prof du Plessis had recommended change the wording to “compensation that has no value” instead of using the words “without compensation”. However, Adv van der Merwe did not fully agree with Prof du Plessis that "without compensation” would amount to confiscation, as confiscation connotes punishment, usually used in light of an offence, which is not the present case. The Committee is dealing with expropriation, not an offence. The appellate court, as far back as 1950, noted that of course Parliament can make legislation to the effect that there should not be compensation when something is to be expropriated. In this regard, the Committee should pay attention to the international obligations that SA has. There are treaties and customary international law speaking to this- and there are lots of rules on how compensation can be determined. However, in 2012 the Department of Trade and Industry (DTI) identified these treaties, some of them Bilateral Investment Treaties- the Africa Charter is one. These treaties have terms in them that were not conducive to SA’s development objectives as reflected in the Constitution. Since 2012, the DTI has embarked on processes of amending the treaties. One treaty was amended to the extent that it excluded international arbitration. So there has been a lot of work done on international obligations. Perhaps at the next meeting the Committee should invite a DTI representative to explain the processes. She believed the issue of international obligations would not be a hurdle in the processing of the Bill but this is something the Committee must unpack. The Committee might however need to be cautious about the wording.  

South Africa’s international obligations
Adv van der Merwe cautioned the Committee to take South Africa’s international obligations into consideration, as there are a number of treaties to which South Africa is a signatory, which govern the determination of compensation, citing bilateral treaties and the African Charter as examples. This does not have to hinder the Bill, but may affect South Africa’s obligations. The Department of Trade and Industry (DTI) identified that some bilateral treaties South Africa had ratified were not conducive to South Africa’s development obligations. Her recommendation was the amendment can be worded in a way that ensures RSA does not breach its obligations. She recommended that the Committee invite DTI to provide further information.

Meaning of the word 'land'
Adv van der Merwe noted it was suggested that the word 'land' should be “fleshed out”, as there was discussion on whether 'land' was unclear, specifically if 'land' includes improvements.  She found that there was no definition of 'land' in the land reform legislation. Legal Services concluded that 'land' does include improvements to land, citing the legal principle of accession, which states that property on land is part of the land. She concluded that 'land’ was broad enough to include both the land and the improvements thereon.  She cautioned the Committee that the term 'property' in s25 was a broad term in law and can include tangible and intangible property such as copyright. Therefore if expropriation without compensation was extended to include all property it would have an effect on a large number of different types of property.

Need for certainty
Adv van der Merwe said that there was an urgent need for the Bill to be prioritised, as property rights must be protected and ensured by the wording of the Bill to allow for certainty and stability. She Recommended that the Bill include an enabling clause that will require national legislation to include criteria outlining when expropriation without compensation can occur. This will ensure certainty in the law.

Expansion on the meaning of the word 'compensation'
Adv van der Merwe said that there was a proposal from Chidi Attorneys that compensation be expanded to include compensation in kind rather than monetary compensation. She explained that 'compensation' is not limited to monetary compensation and that it is already possible to include non-monetary compensation and that no amendment is necessary for this.

Proposal to provide a different body to determine the amount of compensation
Adv van der Merwe noted the proposal from COSATU and Chidi Attorneys that there should be a body that determines compensation. COSATU recommended that the Office of the Valuer-General should determine the amount of compensation and that the courts should be in a review position. She responded to this proposal stating that courts are broadly defined in the Constitution and that it is possible for another body to determine the amount of compensation, as there are several entities that meet the constitutional criteria for a court; however it is a policy decision whether courts should be included. She cautioned that the powers of the court to review decisions cannot be ousted.

Ownership of land
There was an EFF proposal that recommended that the state be the custodian of all land in the same vein as the state’s custodianship of minerals and water. However, there was a concern that black people in particular should be allowed to own land. She reiterated that the state was already the custodian of minerals and water; however land custodianship is a matter pertaining to policy. The Committee also has to make a decision on the amendment of section 7, specifically the land reform date of 1913.

Existing land reform policy
Adv van der Merwe noted that there were proposals to strengthen existing land reform policies. She stated that these matters could not be addressed by means of amending section 25. She advised that the Committee take these additional proposals into consideration and include them in their findings in the Committee’s final report.

The Chairperson stated that the Afrikaaner Bond, which is the former Broederbond, had endorsed the Committee’s processes and is invited to contribute to the discussions. A number of senior traditional leaders who are not members of the National House of Traditional Leaders requested to be granted an opportunity to contribute to the Section 25 discussion. The Chairperson stated that contributions were welcome and he intended to allow any additional stakeholders to express their views and make recommendations to the Committee.

The Chairperson welcomed Members' comments on the Legal Services report on the Dialogue.

Mr A Shaik Emam (NFP) asked the Committee to consider seriously the current ongoing evictions and sale of prime land, particularly in the Western Cape. The colonial expropriation of land included improvements and property on the land, which means that in the Committee’s redress endeavours, 'land' should include additional improvements to property. It is important that the international community be reminded of the redress objective of South African land expropriation.

Mr Shaik Emam did not agree with the notion of state ownership of land, but rather state custodianship of all land, which entails that the state would reserve the right to expropriate land where necessary.

The Chairperson pointed out that the National Assembly’s resolution to separate property from land was intended to prevent further injustice.

Mr Shaik Emam responded that land and the improvements on the land such as buildings are inseparable. Many matters arising from this Bill will be pertaining to land with improvements, citing commercial land which is most likely to always have some improvements. For this reason the Committee should consider how it would respond to this when dealing with expropriation. It is imperative the Committee be conscious of the fact that prime property was expropriated in the initial colonial expropriations.

Mr F Shivambu (EFF) pointed out that the state is already the custodian of all minerals and water, which means that anyone who intended to harvest water had to be granted permission from the state upon having met certain criteria. When it was decided that the state would be the custodian of minerals and water, the constitutionality of that legislation was challenged. However, it was ratified after it was determined that the legislation was specifically designed to target matters of redress. If land redistribution is done on an individual case by case basis, it would be an extremely slow process that would result in unnecessary litigation processes. This would replicate the status quo of the redistribution of only 8% of the intended 35% redistribution since 1994.

Mr Shivambu stated that state custodianship would be the best way to achieve effective land appropriation. State custodianship would be the most appropriate response to the South African context where large swathes of land were expropriated from the majority indigenous black population and redistributed to the minority white population. Consequently there are very few black people who own land in economically viable areas. The process that would initiate the redistribution of land to black people would be a legitimate process of custodianship determined by the Committee and not confiscation. It is imperative that the state as the custodian should ensure security of tenure.

Mr Shivambu noted the interchangeable use of the terms 'property' and 'land' in section 25, stating that the Committee’s mandate is to amend section 25 and if there is conflict with the National Assembly on the use of the terms, the matter can be referred back to the National Assembly to provide further clarity on the intention of wording in its resolution. He asked that Members be mindful that the present matter is a redress matter. Custodianship does not mean that the state is the exclusive owner of all land and that black people cannot own land. It is rather that the state reserves the right to regulate land ownership in the same manner that it regulates mine ownership.

The Chairperson asked if Mr Shivambu agreed that his statements confirm the need to ensure that every view is expressed and noted by this Committee. Parliament represents the people of South Africa and it is important that every opinion is heard to ensure a true reflection of participatory democracy.

Dr C Mulder (FF+) stated that land does not guarantee economic activity, but rather the manner in which land is used is what creates economic activity. On process, the Committee was bound by the resolution adopted by the House.  The matter of custodianship or nationalisation of land was not included in the House resolution. Therefore if Mr Shivambu intended to have it included, the Committee would have to ask for a different resolution. Once the state becomes the custodian of all land, custodianship cannot be reversed to ensure security of tenure; the state remains the custodian of all land.

Dr Mulder stated that it is clear that the resolution adopted by the House was referring to land and not property, as this is broad concept.

Adv G Breytenbach (DA) endorsed Dr Mulder’s finding that the Committee’s mandate was referring to land specifically and not property. If the Committee wished to change this mandate, it have to revert to the House. Discussing anything outside the parameters of the 'land' mandate would put the Committee in jeopardy.

The Chairperson clarified the Committee’s mandate. He defined mandate as the power conferred on the Committee to do certain things. He assured the Committee that the Committee was within its parliamentary mandate. He asked Members to make contributions that were within the Committee’s mandate.

Ms N Ntobongwana (ANC) stated that the resolution was referring to land, even though section 25 refers to property. The South African historical context is referring to land and property should be discussed as a separate matter. Given the South African historical context it is imperative that the Committee stated that expropriation will be done without compensation, as the Committee intends to redress past injustice. Expropriation without compensation is a South African matter and international law cannot be given more weight than this redress.

The Chairperson agreed stating that the Berlin Conference of 1885 created an international policy that expropriated African land without consulting Africans. However, Legal Services recommendations are relevant and must be taken into consideration.  The Committee intends to invite DTI to provide a briefing on the international treaties to which South Africa is signatory to provide clarity so these do not invalidate the Committee's redress objective.

Ms K Mahlatsi (ANC) echoed that the Committee should focus on expropriation without compensation and on the land mandate and not property. She asked that the Committee provide clarity on who determines the value of compensation. The Office of the Valuer General could be a potential candidate to determine compensation, but another body should be identified to handle disputes.

On custodianship, she stated that it is imperative that the Committee identifies the beneficiaries of redress. The Committee should consider different types of ownership and how they would affect communities, particularly pertaining to communal land. The Committee should interrogate the 1913 cut-off date and provide an explanation on the reach and time-frame parameters of land redress, more specifically how far back the redress measures should reach.

The Chairperson explained to the Committee that the constitutional mandate of redress was intended to heal the wounds of the past. However, when speaking to communities about redress it is essential to be attentive and to listen to what the wounds are rather than imposing the Committee’s own views.

The Chairperson confirmed that property was not in the Committee’s mandate and asked Members to stick to the mandate of land. He agreed that the Committee should interrogate the 1913 cut-off date.

Mr Shivambu outlined that the Committee mandate was to review and amend section 25 to allow the state to expropriate land without compensation for the public interest. The Committee was mandated to conduct public hearings and propose amendments that will ensure future land tenure taking into account state custodianship of land. He believed that the Committee’s mandate included state custodianship of land. State custodianship of land was the most inclusive and appropriate means of dealing with the issue of land expropriation without compensation.

The Chairperson responded that Mr Shivambu’s views highlighted why it is essential that all views are heard.

Dr Mulder replied that the revision of mandate that Mr Shivambu stated was referring to the Constitutional Review Committee and not the current Committee mandate. The Report recommendations of the Constitutional Review Committee did not include state custodianship of land. He agreed that the mandate of the current Committee was to take the recommendations of previous Committees into consideration.

The Chairperson replied that the Constitutional Review Committee was tasked with investigating the desirability of land expropriation without compensation. Its findings enabled the National Assembly to establish this Section 25 Ad Hoc Committee.

Dr M Gondwe (DA) asked Adv van der Merwe to provide clarity on the legal opinion of Prof du Plessis that expropriation always requires compensation. She asked why that specific judgement was the case law used to substantiate that claim. She agreed that international law must be taking into consideration.

Adv van der Merwe responded that Prof du Plessis made these findings on the basis that the most recent cases where expropriation occurred, there was usually compensation. Since 1915, the Appellate Division recognised that Parliament had a right to expropriate without compensation, although there was a presumption against it. The Appellate Division was the highest court of the land at that time and its findings were binding. She stated that it was not accurate that expropriation always required compensation. In terms of international customary law, expropriations do not always have to include compensation.

The Chairperson thanked the Committee for their contributions.

Mr Shivambu stated that the mandate of the current Committee was to initiate and introduce the constitutional amendment of section 25. The Committee should give due regard the Constitutional Review Committee's findings. State custodianship was included in the Constitutional Review Committee report.

The Chairperson agreed that the current Committee should initiate legislation that reflects the will of the South African people.

Dr Mulder said that custodianship was recorded as being a view and not a resolution.

The Chairperson stated that views need to be adopted as a resolution in order to become a resolution.

Mr Shivambu reiterated that Committee should give due regard to the Constitutional Review Committee Report. It requires Parliament to consider what happens after expropriation occurs. He reiterated that custodianship is included in this Committee's mandate. He suggested that Legal Services provide a brief on custodianship, which can be used to further deliberate on the matter.

A committee member stated that the Committee was in agreement on the Committee mandate of expropriation without compensation. The main views raised in the workshop supported this mandate. He asked Members to stick to the Committee mandate given by Parliament.

The Chairperson requested Legal Services start the redrafting process. He postponed Friday’s meeting to allow for more parties to make submissions on the matter. He agreed with Mr Shivambu’s proposal and requested Legal Services investigate the matter of the Committee’s mandate to allow the Committee to make informed decisions.

Ms Mahlatsi requested that DTI be invited to brief the Committee on the same day.

The Chairperson accepted this request.

Dr Mulder stated that Members agreed that the Committee mandate is to deliberate on the matter of expropriation without compensation, but he noted that the parties have different views on what the content of those deliberations should be.

The Chairperson responded that the Committee had sufficient consensus to progress further.

Mr Shivambu requested that the Committee reschedule Friday meetings as Members needed to return to their constituencies.

Dr Mulder seconded this motion.

The Chairperson stated that Friday meetings would be rescheduled and the meeting was adjourned.

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