In this virtual meeting, the Committee heard oral submissions on the Draft Constitution Eighteenth Amendment Bill.
The Chairperson provided a brief background relating to the processes that had taken place in relation to the amendment of the Constitution and the public participation processes. He emphasised the decision taken by the Committee in terms of accepting submissions exclusively from those who had indicated as much in their written submissions, or who had wanted to appear before the Committee at the beginning of 2020 prior to the COVID-19 lockdown. On this basis the Committee was not opening up the opportunity to hear oral submissions from any other organisations, besides the aforementioned.
Sakeliga argued that the current Bill is an attempt to insert into the Constitution a provision that is at odds with the principles of constitutionalism itself. Should confiscation powers for the state, as contemplated, be inserted into the Constitution it will render the document unconstitutional and illegitimate in so far as and so long as that amendment taints it. It will then be incumbent upon citizens and civil society in all its manifestations to refuse to abide by such an amendment and to endeavour themselves to the restoration of a sound constitutional order.
The Committee asked whether Sakeliga’s position regarding constitutionality was general or specific. Clarity was requested regarding the use of the word ‘confiscation.’ The Committee expressed views relating to the previous dispossession of land resulting from colonialism and apartheid.
The Congress of South African Trade Unions submitted that it was in favour of the constitutional amendment. The trade union advanced several reasons for this, including, the Bill compels the state to advance land reform and address legacies of colonialism & Apartheid; the Bill is in line with international norms; the Bill provides clear checks & balances and provides clear legal recourse for all parties to seek relief from courts.
MPs asked Cosatu to expand on the reference to international examples of expropriation without compensation and whether owners should be given title or whether land should revert to the State to be leased out once expropriated..
The South African Property Owners Association questioned the need for an amendment to make what was already implicit, explicit. It argued that this move impacted investor confidence and associated finances. The Association highlighted that the courts needed to specifically decide on cases that related to nil compensation and whether it was just and equitable.
The Committee asked whether the presenter was content with the current status quo in South Africa and why the Courts needed to get involved in every case even when there was no dispute.
The Helen Suzman Foundation stated that changing the Constitution was unnecessary as Section 25 already makes provision for expropriation without compensation. The Foundation highlighted that the land reform process has not been affected by Section 25 of the Constitution. The factors that have played a role are: - Corruption, inefficiency and incompetence, extremely slow pace of restitution. a A minimal budget provision (land reform, restitution and farmer support account for 0.35% of total Government expenditure in the 2021/22 budget, including debt service costs), failure to amend the existing Expropriation Act of 1975 and an incapacity of the Department of Rural Development and Land Reform to perform its functions, even leading the Constitutional Court to allow the outsourcing of certain of these functions.
Some Committee Members felt that section 25 clearly needed to be explicit, given the multiple interpretations highlighted by the different presenters over the course of the meeting. They asked why there was opposition to it becoming more explicit.
Agri SA stated that there was no need to amend the Constitution so as to achieve equitable and just land reform. It highlighted that the lack of land reform was based on government’s minimal budget allocation for land reform, related policy uncertainty, poor settlement support systems and corruption. Issues of food security were highlighted. Agri SA said it was opposed to any constitutional amendment that would detract from the principle of just and equitable compensation for land that was expropriated.
The Committee highlighted the plight of graduates wanting to enter the agricultural sector who were unable to find employment. A Member highlighted that in China and Vietnam there was ‘no privately owned land’ and that those economies worked ‘perfectly,’ sometimes ‘far better’ than European economies.
The Black Management Forum said there are several hurdles standing in the way of the Bill's restorative justice object. It argued that it provides little certainty and leaves the court as the arbiter of the very same socio-economic challenge of the past two and a half decades. It proposed that the most direct way of forging ahead with the restorative justice object would be to, inter alia, insert a social obligations clause in the Constitution, as has been done in Brazil.
The Committee asked for clarity around how the amendment would affect food security. The Committee asked about downgrading, investment and who should be given the powers to handle issues around expropriation.
The Chairperson stated that this was a representative and participatory democracy. As public representatives in Parliament, they did not have a monopoly on wisdom, hence they allowed maximum participation in all legislative processes to ensure that their decisions were based on the will of the people. The Freedom Charter taught them, that no government could legitimately claim authority unless it was based on the will of the people. In line with that constitutional imperative, the process of amending section 25 of the Constitution started with the convening a consultative workshop on land reform. On the basis of the insights that emanated from that workshop, the Committee developed and adopted a draft amendment bill and gazetted it. The Committee was criticised for publishing the amendment bill during the festive season and calls were made for the extension of the period for written submissions. The Committee heeded the call of the public and extended the period for written submissions.
Some of the submitters indicated that they wanted an opportunity to appear before the Committee. The Committee held public hearings which were interrupted by the outbreak of the COVID-19 pandemic. When the situation permitted, they continued with the public hearings which were open to all South Africans regardless of their ‘standing’ in society. These public hearing were successfully completed with due regard to the directives of the Constitutional Court regarding public participation. Despite the limitations imposed by the lockdown regulations, they ensured that they met the Constitutional requirements for public participation.
The Committee’s deadline for completion of the process for the amendment of section 25 was originally set for 19 March 2021. Considering that some government departments had an interest in the process and some submitted requests to appear before the Committee to make oral submissions. An application was made to extend the deadline to 21 May 2021. Throughout the process, the Committee took decisions by consensus because it recognised and acknowledged that this process was a South African project and not a political party project which depended on a majority. The Committee also agreed not to rush the process, but to allow oral submissions by departments and submitters who requested to make oral submissions. The Committee had therefore agreed to only allow oral submissions from submitters who made a request to do so, they would not reopen the entire process. That decision was taken by the Committee unanimously. The Committee later got an indication that the Minerals Council of South Africa (MCSA) and the National Association of Democratic Lawyers (NADEL) wanted to appear before the Committee. Given the decision previously made by the Committee, they would not be accepting the proposal by NADEL or the MCSA as that would amount to opening up the entire process. There was no reason why they would not reach the new deadline of the 21 May, if they did not, they would lose their credibility and the loyalty of the people to the process. They could not afford to disappoint the people, who had waited for decades for this process to be completed.
Dr C Mulder (FF Plus) highlighted that the Chairperson’s reference to the Freedom Charter referred to the ‘will of all people,’ and not simply ‘the people,’ as reflected on the African National Congress’s (ANC) website.
The Chairperson concurred, Dr Mulder was correct in this regard.
Mr Piet le Roux, Chief Executive Officer, Sakeliga gave a brief introduction and highlighted the main points relating to their written submission. Sakeliga had commented on the Bill by way of five points. These points were substantiated in annexures A through D of their written submission, which included expert contributions on constitutionalism, international law, economics and the relation between economics and constitutionalism.
Constitutions are always subject to constitutionalism itself:
- The Constitution of South Africa was enacted by Parliament as the country’s foundational legislation. Proper procedure, while important, is only one requirement for amendments to the Constitution’s text to be valid.
- Another essential requirement is that amendments must be in accordance with the deeper principles of constitutionalism itself, such as respect for private property as a cornerstone of civil society. Put differently, Constitutions cannot be amended arbitrarily, as if anything is possible as long as proper procedure is followed and a majority in Parliament votes for it – such a situation would imply tyranny.
- Constitutions that are amended such that they violate the principles of constitutionalism loses to this extent their legitimacy and regains legitimacy only after constitutionalism is restored.
Expropriation without compensation is confiscation:
For a taking of property to constitute expropriation, it is essential that an owner has access to the remedy of compensation. Absent the remedy of compensation takings of property are not expropriations, but rather penalties or forfeitures, and therefore in fact really confiscations.
The Bill adds a new provision to the Constitution and does not simply make explicit that which is implicit:
- Contrary to the premise from which Parliament and the Committee operates, the Constitution does not implicitly sanction expropriation without compensation, or confiscation in the proposed way.
- The current effort to alter the Constitution is therefore an attempt to insert into the Constitution a new provision precisely because that which is said to be there implicitly is in fact not there.
International consultation and international law:
- Consultation with international property owners, as required by the South African Constitution, have been insufficient.
- Government has a duty to consult meaningfully with local and, also importantly, international property owners.
- Failure to have done so casts doubt on the validity of the process followed by the Committee. - Moreover, since government is duty bound by international law to provide adequate protection to international investors, confiscation as a state policy will put South Africa in violation of its international obligations.
The constitutionality and legitimacy of the Constitution of South Africa:
The current Bill is an attempt to insert into the Constitution a provision that is at odds with the principles of constitutionalism itself. Should confiscation powers for the state, as contemplated, be inserted into the Constitution it will render the document unconstitutional and illegitimate in so far as and so long as that amendment taints it. It will then be incumbent upon citizens and civil society in all its manifestations to refuse to abide by such an amendment and to endeavour themselves to the restoration of a sound constitutional order.
- Expropriation without compensation, more correctly, the confiscation of property, is a patent invasion into the basic right to private property.
- It is also an offence against the very foundation of constitutionalism. Even though Parliament may amend the written text of the South African Constitution to allow for expropriation without compensation, such amendment would be constitutionally illegitimate for its offending the very foundation of constitutionalism as such.
- The same applies for a pro–confiscation interpretation of the present text of the Constitution. Should the present text be interpreted to permit expropriation without compensation, such interpretation, though in conformity with the Constitution, would be an affront to the idea of constitutionalism.
- Sakeliga submitted that the Constitution can not be amended to facilitate confiscation as contemplated and remain a true constitution. It will lose its legitimacy in so far as it is so amended and will regain that only after such an amendment is undone.
- Any current ambiguity in section 25 of the Constitution about property rights should be rectified to make it explicit that confiscations are unacceptable.
- Sakeliga realised the difficult position this Committee is in: fundamentally, it must make a recommendation on whether the Constitution should maintain its constitutional character, or whether it should lose it.
- Without a constitutional order the market economy cannot exist, and without a market economy there is no prospect for South Africa as place where people can thrive. As Röpke elaborated: “The real role of property cannot be understood unless we see it as one of the most important examples of something of much wider significance.”
Mr S Gumede (ANC) asked for clarity regarding Mr le Roux’s reference to the constitutionality of the Constitution of South Africa – was that in-general or specific? Did he mean that South Africa did not have a legitimate Constitution?
Mr F Shivambu (EFF) referred to the speaker having said that he would ‘never accept an amendment of the Constitution,’ – was he threatening the Committee? What kind of a presentation was that – that said they would not ‘accept’ a Constitutional amendment, a democratic process? He was not going to accept majority rule? What kind of nonsense was that? Did the speaker accept that the majority of people who owned the land at present, got that land through ‘colonial, racist occupation and dispossession of the Black majority?’ Did he accept that as a foundation? What was confiscation when people wanted to repossess their land? What was the philosophical basis for categorising the attainment of historical justice as ‘confiscation’? He stated that ‘all of you here, you Europeans, you came here, not so many years ago – you took our land.’ Now it was being said that the land was being ‘confiscated?’
Prof A Lotriet (DA) raised a point of order. She stated that it was not parliamentary that a presenter to Parliament was being insulted. She reiterated that the Committee could ask questions for clarification and not to insult people.
The Chairperson stated that he ‘actually did not understand what she meant by insult.’ He asked that she define what ‘insult’ meant. If a person said something was ‘nonsense’ – in his view it meant that it had ‘no sense.’ It was not necessarily an insult.
Prof Lotriet stated that it was not about the ‘nonsense’ aspect of what was said, it was about Mr Shivambu’s reference to ‘you Europeans came here..’ That was an insult and an assumption - it was not parliamentary nor part of their code of conduct as Parliamentarians.
The Chairperson responded that, it was a historical fact that people of ‘European’ decent at some point in history came into the country. That was why they also spoke of the 1820 settlers and the arrival of Jan van Riebeeck. Were those not historical facts? How did they interpret them as insults? He asked whether she could help him ‘understand.’
Prof Lotriet responded that it was in the tone and manner. Mr Shivambu started off by stating that the presenter was ‘threatening’ which was also Mr Shivambu’s own subjective view, in this regard. There was a certain decorum that Parliament afforded guests who presented to Parliament.
The Chairperson agreed in so far as Parliament needed to retain a certain decorum. However, he understood Mr Shivambu to be asking whether they were being ‘threatened.’ – that in his view did not violate the decorum of Parliament. He restated that all members of the Committee had their right to express their opinions ‘wrongly or rightly.’ He agreed that the decorum be respected at all times. He requested that Mr Shivambu be mindful of this as he proceeded.
Mr Shivambu reiterated his earlier question regarding majority rule. It was therefore ‘nonsensical’ of the presenter to state that he ‘would never support it.’ Did he accept that the current majority of the occupiers of land, occupied it through racist colonial settlement – ‘criminal settlement.’ One could only use the word ‘confiscation,’ if they thought that those who occupied the land presently were rightfully occupying the land, and ‘that was not the case.’
The Chairperson stated that all Members had the freedom of opinion and the ‘freedom of expression.’ That was embodied in the Constitution. Therefore, none of them should be ‘offended’ by the expressions of other Members.
Mr G Hendricks (Al Jama-ah) requested to know whether the presenter had a quarrel with confiscation or expropriation. As an alternative to that would he accept reparation with a sanction – he did not want to go into the motivation for that because Mr Shivambu expressed it very clearly.
Dr M Ndlozi (EFF) suggested that it was important to provide the presenter with some important background. The process was at a stage where the amendment would happen, Parliament had already adopted the idea that they needed to amend the Constitution to expropriate land. Colonisation by definition was ‘criminal confiscation.’ If one accepted that colonisation was a legal confiscation of peoples’ land through physical removal, violence and massacres etc - this was the problem they were trying to resolve. The Committee was trying to resolve it through a democratic process of Parliament, courts and laws in which they would repossess the land. If the presenter accepted that colonisation was confiscation, how did they correct the situation without repossession. He asked what the racial profile of Sakeliga’s membership was. It was stated that there were 18 000 members of business, he asked that the racial profile of the membership be given in percentage terms.
The Chairperson suggested that the Committee should agree that the purpose of the hearings was to allow stakeholders to persuade Parliament through the Committee one way or the other. Parliament would then need to consider whether it was persuaded one way or the other.
Mr le Roux responded to Mr Gumede’s question whether Sakeliga’s concern was general or specific in relation to the Constitution. Sakeliga’s standpoint was that the Constitution was not any document simply because it was voted on – but a document that had to conform to certain basic structures. It needed to have a certain nature otherwise it would not be legitimate. What they were proposing was that, introducing ‘confiscation’ – or any other word or term into the Constitution would detract from the legitimacy of the Constitution. His presentation did not seek to ‘incriminate’ the Constitution, it stated that they risked detracting from the legitimacy of the Constitution if they inserted into it something that was fundamentally at odds with the nature of what was constitutional.
He suggested that Mr Shivambu and one of the members may have taken affront to his reference that if something incompatible with constitutionality was inserted into the Constitution, that it should be the subject of the perpetual and long-term effort on the part of civil society to recover from. He reiterated that not only Sakeliga, but any bona fide member of civil society, including political parties, should make it their recurring and enduring endeavour to restore proper constitutional order should ‘confiscation’ be inserted into the text of the Constitution – in the case that the Constitution became unconstitutional. In principle, he would assume that Mr Shivambu and other members of the EFF would agree that it would be unconstitutional to write into the Constitution that the EFF would not be allowed as a party, and if something would be introduced into the Constitution to that effect, it would be incumbent upon the members of the EFF and society to push for constitutionality.
He referred to Mr Ndlozi and Mr Hendricks comments and questions. He stated that it sounded as if they agreed that it should be called ‘confiscation.’ If they wanted to speak of reparations and other ways of taking for the State and wanted to criminalise the actions of people who no one had control over presently – events that happened hundreds of years before – ‘asset forfeiture’ was a more appropriate term in terms of what they described. If they wanted to speak of ‘criminalisation’ and ‘confiscation’ they should seek to replace the words expropriation without compensation with ‘asset forfeiture.’ But, this was not what the Committee was about. He noted that there were many avenues in terms of harms and injustices including land restoration that would be much more fruitful and would do better to have the attention of Parliament.
Dr Ndlozi stated that he did not want the presenter to leave before he had clarified that he did not agree with the use of the word ‘confiscation’ being written into the Constitution – that was absolute ‘nonsense.’ That was not his view. He stated that Mr le Roux should not be like ‘Donald Trump’ and reject democratic outcomes.
Congress of South African Trade Unions’ (COSATU) Presentation
Mr Matthew Parks, Parliamentary Coordinator, COSATU, presented the views of COSATU relating to the amendment of the Constitution and justification thereof.
Legacies of Apartheid and Colonialism
- South Africa remains one of the most unequal nations;
- Urban dwellers condemned to informal areas & backyard dwellers;
- Rural residents & farm workers denied land to till;
- Overwhelming skewed racial & gender ownership; &
- Lessons to be learned from Zimbabwe.
Failure of land reform post 1994
- Government failure to significantly eradicate Apartheid and colonial land ownership patterns since 1994;
- Challenges of exorbitant compensation demands e.g. Mala Mala Game Reserve;
- A limited fiscal balance sheet; &
- Immorality of compensation for apartheid era expropriation.
- Divergence of views on Constitutional expropriation & nil compensation provisions;
- Need to provide clarity for all parties;
- Need to place upon state clear responsibilities; &
- Need for clear legal recourse for affected parties.
Linkage to Expropriation Bill
Expropriation Bill provides clear instances on when nil compensation may be paid:
- Idle private land;
- Idle state land;
- Abandoned land;
- Land whose value has been inflated by state investments; &
- Land posing a risk to the environment, health & safety.
Expropriation Bill provides clarity on:
- Legal recourse;
- Compensation including nil compensation;
- Objectives of expropriation; &
- Rights of affected parties.
COSATU’s support of the Constitutional amendment
- Bill compels state to advance land reform & address legacies of colonialism & Apartheid;
- Bill empowers to state to utilise expropriation to accelerate land reform;
- Bill capacitates to state to offer nil compensation under clear circumstances & when needed; &
- Workers & public can hold state legally accountable to drive land reform.
- Bill in line with international norms;
- Bill protects rights of workers’ property e.g. homes, cars, small holdings etc from abuses as majority of expropriation involves workers’ homes when state builds roads, power stations, dams etc;
- Bill provides clear checks & balances;
- Bill provides clear timeframes
- Bill provides clear legal recourse for all parties to seek relief from courts.
Reactionary Opposition to Bill
- Right wing & reactionary opposition to Bill hysterical & devoid of facts;
- Seeks to preserve legacies of colonialism & Apartheid;
- Only serves to engender hysteria when calm rational engagements are needed; &
- Delaying land reform is a ticking time bomb.
Populist opposition to Bill
- Populist opposition to Bill hysterical & devoid of facts;
- Failure to understand the need to protect the rights of ordinary workers whose rights are often abused by corrupt municipal & departmental officials in collusion with the private sector;
- Need to prevent abuses in future & find right balance that protects workers, capacitates the state & accelerates economic growth & job creation.
Dr Mulder referred to the presentation and Mr Parks reference to the idea of expropriation as being nothing new nor strange and that provision was made for it in constitutions all over the worlds. He noted that Mr Parks was correct in stating that. He noted that this was also the case in the South African Constitution – the Constitution currently provided for expropriation. He asked if Mr Parks could provide examples internationally in other countries where provision was made for expropriation without compensation or expropriation with zero value. This was referred to in the slides.
Dr Mulder further noted that Mr Parks had said that the Bill was in line with the Constitution and international norms. He asked whether the international norms/ examples in international law could be supplied to the Committee, that underpinned and made provision for expropriation without compensation or with zero value.
The Chairperson addressed Dr Mulder and stated that he was not sure whether these were ‘fair’ questions because Mr Parks had indicated what the situation was in other jurisdictions and what international law was saying. He suggested that the Committee ‘thank him for having given them those indicators’ and the Committee should use the Parliamentary research capacity and internal party capacities to go and do the research that Dr Mulder wanted Mr Parks to provide.
Dr Mulder responded that he understood what the Chairperson said but stated that, surely when a presenter came to Parliament to present, making a statement in the presentation stating that it was ‘internationally accepted values and norms’ – surely he would be able to enlighten the Committee. That was all he had asked in the first instance. With regards to the other question, if there were numerous examples in other constitutions, surely, the presenter could also enlighten the Committee. He requested that Mr Parks be given the opportunity to do so.
Prof Lotriet asked, in terms of expropriation and land – what was COSATU’s position on the land that was then expropriated. Would it be given to owners to have title deeds? Or would it revert to the State to be rented or leased out to, for example, emerging farmers?
Dr Ndlozi requested an unpacking of the apartheid and colonial dispossession of land. He asked the presenter whether he agreed that the mechanism of resolving the dispossession peacefully through a Constitutional order was the best international example of how to resolve the matter.
Mr Parks stated that it was dangerous for them to take a knee-jerk opposition to the Bill. South Africa was ‘big enough for everyone.’ One had to allow space, and land reform specifically, to target those who were disadvantaged and disempowered not so long ago. It would benefit White people not to make a change. It was simply unsustainable to have an economy and where the majority of people did not have ownership of land. This was not a theoretical alarmist discussion – he referred to what happened in Zimbabwe. They needed to be governed by South Africa’s socio-economic situation, it was the most unequal country in the world. The country was 27 years into democracy and had failed to make progress in that regard. In terms of other countries where there was expropriation without compensation, there were a number of other African countries that had this provision. There were also countries in Latin America, Eastern Europe, China, Korea and Japan – they had all gone through this process.
This was not a one sided conversation. When colonialism was rife in South Africa, when Apartheid was in effect a few decades before – there was no conversation. They were now trying to correct wrongs but do it in a more just and equitable manner – not in a ‘crude’ manner.
It was Cosatu’s preference that people owned the land, so that farmworkers had security in owning farm land. However, he realised the State might want to lease land in the form of long-term leases. He agreed with Dr Ndlozi and felt he had put things very eloquently. This Constitutional amendment sought to achieve peaceful transition and resolution of the ‘original sin,’ and was the correct option. There had been three or four years of extensive parliamentary engagements both nationally and provincially. COSATU believed it would be dealt with in a manner that benefitted everybody. If one looked at the Expropriation Bill – it’s ‘twin sister’ – it provided that sense of clarity to all affected parties. It put a very clear responsibility on the State and the ‘public could hold the State accountable’ for not addressing land reform or not doing it in the correct manner.
Mr Gumede stated that the Chairperson was correct when trying to intervene regarding research that could be done by Parliament’s own researchers. The Committee should give the Chairperson the power to rule out some of the questions because some of the questions were very ‘unnecessary.’ It was very well known that expropriation had mainly taken place in Africa – it was not international countries. The questions being asked were very ‘provocative.’ They seemed to be entering the territory of being debated. He requested that the Chairperson make a ruling in this regard.
The Chairperson stated that he agreed with Mr Gumede ‘200 percent.’ That was why he had said to Mr Parks, that in his view these were unfair questions but answer subject to his view. Mr Parks had provided the Committee with hints as to how the researchers should be guided to do the work for them.
Dr Mulder stated that he heard what both Mr Gumede and the Chairperson were saying. He found it rather strange that Mr Parks ended his presentation and made the following statement ‘the bill was in line with the Constitution and international norms.’ How could the Chairperson rule, that if he asked what those international norms were, that it was out of order? A statement was made, how come they were not permitted to ask what was meant by it?
The Chairperson stated that he had said from the outset that the Committee should allow individual opinions, it was not for them in that meeting to discuss the merits or demerits of those opinions. He suggested they let the matter rest.
Mr C Xaba (ANC) requested that Mr Parks respond to the statement made by Dr Mulder where he had agreed with him that expropriation was permitted in the Constitution. He referred to the current reference to expropriation within the Constitution whereby the present ‘owner’ was taken into consideration in terms of just and equitable compensation and use of the property. The other factors took into account the ‘general public’ such as historical use etc. These two considerations stood side by side, he asked Mr Parks whether he thought that the pies would be an outcome of an evaluative process that took into account all of those factors which would in the end result in nil compensation. He requested a comment on that.
Mr Parks replied that all former colonies have undergone similar processes throughout Africa, such as Mozambique or Angola. In Europe where Germany occupied significant parts of Europe and took possessions – there was no compensation when they left. Japan occupied large parts of China and northeast Asia, before they left and there was no compensation given to it. He was therefore not sure why they were so hesitant to deal with this in a peaceful and constitutional manner. The Constitutional amendment and the Bill should be viewed hand-in hand – and this would be a good approach to address land reform. There were clear instances where expropriation could take place, such as where it was under-utilised. The Constitution stated that it should address the legacy of apartheid and colonialism – it needed to consider how a property was acquired. This was a rational approach to dealing with the issue - as opposed to a reckless manner.
South African Property Owners Association (SAPOA) Presentation
Advocate Maurice Pillemer, representing SAPOA, stated that he merely sought to highlight aspects of the written submission that was made to the Committee.
General Comment: the need for the amendment
- The preamble to the Amendment Bill that Section 25 of the Constitution is to be amended to make explicit that which is implicit therein so that an amount of nil compensation is explicitly stated as a legitimate option for land reform.
- The point was already contained in the Constitution therefore why amend it.
- This impacted investor confidence and associated finances.
Necessary changes to the Bill:
- The anomaly between expropriation for land reform and expropriation in the public interest as set out in the Expropriation Bill;
- The amendments to the Expropriation Bill required so as to ensure that it is not unconstitutional.
- The need to provide that the power of the courts should not be circumscribed by the national legislation. Accordingly, the proviso to sub- section 2 (b) needs to be amended; and
- The addition of a proviso to sub-section (3A) to the effect that where the State expropriates at nil compensation, the State should obtain an order of court that it is just and equitable to pay nil compensation in the specific case.
- It would be impossible circumscribe this in a piece of legislation in terms of where it would be appropriate that there should be nil compensation. All nil compensation cases should be put before the Court by the State – so as to avoid exclusion based on the cost of litigation.
- The burden would be State to prove that it was just and equitable that nil compensation should be paid. It should not be left to administrative departments/processes
Mr R Moroatshehla (ANC) stated that research statistics confirmed in no uncertain terms that South Africa was one of the most unequal countries in the world. He referred to the notion of property values dropping and loss of investment should section 25 be amended. Was the presenter satisfied with the inequality in the country? One could openly indicate this as a crime against the indigenous people of the Country – was he satisfied? Was he content with the current status quo of the indigenous and those who invaded the land?
Dr Ndlozi asked whether the presenter agreed with the expropriation of land without compensation and whether he felt it just should not be a constitutional amendment. He asked why the presenter did not address himself to the significance of the colonial impasse. The reality was that what they were trying to resolve were not instances. They were trying to resolve a colonial confiscation, possession and dispossession of land. Was that not a bit dishonest? They had all been clear in what they were trying to resolve with the amendment to the historical justice that benefited European descendants – which were the members of the association the presenter was representing – which were white. Why did he not address himself to this important question? They were trying to resolve the issue through legal means through a peaceful process. “How come none of you are addressing yourselves to this colonial question?”
Mr Xaba stated that the presenter had asked why they were ‘tinkering’ with the Constitution when the same results could be achieved by maintaining the status quo. The presenter went onto say that changing the Constitution may actually frighten the investors and result in a drop in the value of property. Why was he so concerned when the sole intention was to make explicit that which was implicit? The draft was out there for everyone to see. Why would he be concerned when Parliament was doing this to make things clear.
Mr Shivambu asked whether the presenter proposed that the courts needed to get involved in each and every instance, even when there was no dispute. The courts were created in instances of recourse action. The courts had other matters to deal with. He wanted to hear his view on subsection 7 – in terms of the historical recourse prescribed in the Constitution – did the presenter think that should be deleted from the Constitution?
Adv Pillemer stated that in terms of why one should not make something explicit that was implicit and why that would lead to disinvestment was because if it’s not necessary. Because its implicit, when one made it explicit it provoked controversy, public debate and influenced perceptions worldwide and within the country. It led to perceptions that the Constitution was changed relatively easily. It may well result in loss in confidence and loss of investment. If it was not necessary – why take the chance?
The ‘attack’ was not on a fundamental basis. The ‘attack’ was only at the level of the possibility of consequences if one went through with the amendment of the Constitution. The Constitution already dealt with how land should be expropriated. In a given circumstance, if it was just and equitable, it reflected an equitable balance between public interest and the interests of those affected – and if it was a nil value – then that was correct. That was the approach – it always had been there. There would be circumstances where it was appropriate and each case would be separate and have its own distinct features – that was why they suggested it should not be circumscribed absolutely in legislation. Each case should be determined based on its own facts.
In terms of why the courts should be brought in – it was a significant departure from the generalised norm – so as to ensure equivalence. There needed to be assurance that all the facts were taken into account when the nil compensation was applied. The proper place to do that was not through an administrative official but through the courts. This would add additional protection and would strengthen the provision, if the Constitution was to be amended in this way.
It was not his place to talk about colonialism and the past. He was not instructed in relation to that. The representations dealt generally with that. He was there as a representative so as to represent the representations set out in the written submissions. He reiterated that there was no suggestion that there needed to be an amendment to section 7.
Mr Gumede stated that if it was explicit enough for the presenter when their documents were presented – why did he come and do the presentation? In his view, the document that the presenter submitted was not explicit enough – in a sense it was implicit. That was one of the reasons he was before the Committee to make what was implicit explicit. That was the argument they were talking about – but the presenter suggested they left the Constitution implicit so that people would keep asking. He used this principle in comparison to the presenter’s notion that section 25 of the Constitution was implicit and not explicit and the value of making things explicit.
The Chairperson stated that Mr Gumede’s comment would give effect to legal certainty in making what was implicit, explicit.
Adv Pillemer stated that there were two schools of thought. The one school said it was implicit and was not necessary and the other said even though it was implicit it was necessary and must be made explicit – that was what the preamble to the Bill said. The only point that was being made was that making it explicit carried with it the risk of consequences. The representation suggested that it was not necessary to take that risk if it was implicit – that was the only point that was being made. It was not saying that it should not be done, it was saying that by making it explicit one was tinkering with the Constitution and by tinkering with the Constitution there were consequences and those consequences, some of them unintended, might prevail. If one could do it without tinkering with the Constitution that would be a better proposition.
Mr Gumede stated that currently if they did not act, there consequences are there to see. Look at the level of land invasions that the country had. They did not want a situation that might be interpreted as a ‘Zimbabwean situation.’ People would invade and take land forcefully – which they wanted to avoid.
Helen Suzman Foundation Presentation
Adv Anton van Dalsen, Legal Counsellor, HSF, presented the views of the Foundation.
Changing the Constitution was unnecessary
The existing Section 25 already makes provision for expropriation without compensation -
- Section 25(8) expressly states that no provision of Section 25 may impede the state from acting to achieve land reform, provided it is done on a reasonable and justifiable basis, taking all relevant factors into account and is done by way of laws of general application.
- The preamble to the Bill effectively confirms this - it states that Section 25 “must be amended to make explicit which is implicit therein”.
Problems of the land reform process
The land reform process has not been affected by Section 25 of the Constitution. The factors that have played a role are:
- Corruption, inefficiency and incompetence
- Extremely slow pace of restitution
- A minimal budget provision (land reform, restitution and farmer support account for 0.35% of total Government expenditure in the 2021/22 budget, including debt service costs)
- Failure to amend the existing Expropriation Act of 1975
- An incapacity of the Department of Rural Development and Land Reform to perform its functions, even leading the Constitutional Court to allow the outsourcing of certain of these functions
Land reform: question that needed to be answered
The proposed change to Section 25 will not answer any of the following questions:
- How are decisions on expropriation going to be taken?
- What criteria are to be applied in these decisions?
- Who are to be the beneficiaries and how will they be chosen?
- Will the process be transparent?
- Is post-settlement support to be provided to beneficiaries?
- What legal rights will beneficiaries have? Full legal title?
- Will a properly staffed and funded land reform agency manage the process in an efficient manner, in compliance with relevant legislation and regulations?
- Is there a political will to address these questions?
- Will the process be given sufficient certainty and predictability, to avoid a further shock to business and investor confidence?
Conclusion of presentation
- If these questions are not addressed in an effective and convincing manner, the land reform process will not succeed.
- It can be expected that if a transparent, rational and clearly defined administrative process for land reform is not laid down and carefully followed, legal proceedings will bring the process to a halt.
- The underlying issues need to be addressed for any progress to be achieved.
- Focusing only on the proposed change to Section 25 of the Constitution, therefore offers no solution on its own.
The Chairperson stated that the questions raised by Advocate Anton van Dalsen would not be dealt with in terms of the Constitutional amendment but it terms of the amendment of the Act. The Committee had also invited the relevant Departments, including the Department of Rural Development and Land Reform, to appear before them.
Mr Xaba stated that Adv Dalsen understood the dilemma of the Committee as members of Parliament. Mr le Roux had stated that the amendment introduced expropriation without compensation – which he had stated was equivalent to confiscation. Then Advocate Dalsen said that in fact section 25(8) already made provision for expropriation without compensation. There was clearly a difference of opinion there, one said something new was being introduced, the other said it was already there. There was also a difference of opinion in terms of whether the Constitutional section was implicit versus explicit. It was being interpreted differently – but they were blaming the Committee for trying to articulate in the clause exactly what they wanted it to articulate. By amending the Constitution, they were creating more certainty.
The Chairperson stated that there was a need for legal certainty. If advocates, such as those who had presented, were not in agreement with respect to the interpretation of the Constitution – what about the so-called ‘ordinary’ people. Laws needed to be legally certain.
Mr Shivambu noted the presenter had stated that section 8 provided for expropriation without compensation – why was he opposed to it becoming explicit? In terms of expropriation of land without compensation scaring investors – were they aware that the majority of investments in South Africa were happening on State-owned land. State-owned land, such as Coega and the East London Industrial Development Zone etc. Where did the scarecrow come from? Private land investment was discouraged by the high prices put forward by the private sector. Why would there be a change in investment attitude – when the little that there was – had happened on State-owned land.
Mr Moroatshehla stated that the presenter Anton…
The Chairperson interrupted Mr Moroatshehla to state the presenter’s name was Advocate Anton van Dalsen.
Mr Moroatshehla stated that Anton ‘whatever’…
The Chairperson reiterated to Mr Moroatshehla that he should not respond with ‘whatever,’ the meeting was being recorded and if they came back to this meeting years later they needed a proper record.
Mr Moroatshehla stated that the Advocate was the third person to assert that there was no need to amend section 25 of the Constitution. What they wanted to achieve in their effort to amend the section was already contained in subsection 8 of section 25. What worried ‘the cat,’ if the Committee as per its mandate raised up to state their main aim was to make explicit that which was implicit – why could these organisations not join them in this view? If the intended goal was already contained in subsection 8 – why could they not come on board in order to support them. What had been contained in the Constitution, with reference to section 25, had not been realised since it came into effect. Now, when they were at a point where they wanted to make it very clear so that the disadvantaged masses could benefit - let them assist the Committee.
The Chairperson agreed, what was the problem with making the law clear – so that it was not exclusively understood by legal minds and courts but that the majority of the people could understand it? The law applied to them as well.
Adv van Dalsen responded to the question relating to implicit and explicit – the important thing was that with respect to all the different submissions that were being made to the Committee – it put the Committee into a position where it was able to make a decision. The Committee needed to be aware of all these different issues when making the difficult decisions. When he had stated that it was already there, and there was no need to change the Constitution, that was for him, a factual statement. Changing the Constitution as was proposed was not going to change anything in his mind – he was not opposed to the changing of the Constitution. All he was saying was that it was there already – do you want to spend all this time and energy on changing something that was already there?
He addressed the statement regarding the lack of understanding in the community on why land reform action had not been taken, as it should have by government. The point to emphasise was that action had not taken place, not as a result specifically of the Constitution – there were big problems encountered in government such as corruption, elite entitlement, lack of capacity and the fact that the Expropriation Act had not been amended since 1975. All those issues had nothing to do with the Constitution. It was important to realise that the lack of action did not derive form the text, it derived from a lack of government action.
In terms of the scaring away of investors, the point needed to be clarified. Investors wanted to know what they were in for when they invested in a country. If one said to them that expropriation would take place wherever they felt like it, that was the one extreme. The other extreme would be to present them with a very clear formulation, legislatively and administratively, of what could and could not be done. Once they were given certainty and they were able to make a choice it put them at ease. He hoped he had clarified that issue.
The Chairperson stated that the Committee was aware of the distinction of the desired Constitutional amendment and the challenges that government was facing. The Committee was aware that the relevant government departments assisted with those matters. The fact that there were those matters that government would assist with, would not prevent making explicit what was implicit.
Agri SA Presentation
Mr Christo van der Rheede, Executive Director and Ms Annelise Crosby, Head of Land Affairs, presented Agri SA’s position on the Bill as outlined in their written submission.
Agri SA’s position was that the property clause is not an impediment to land reform and that no changes need to be made to section 25 of the Constitution to achieve just and equitable land reform. The reasons for our position are set out below:
- Land reform - lack of adequate budgeting, policy uncertainty, the lack of a comprehensive, integrated support network, lack of or poor communication with stakeholders, corruption and poor settlement support systems are the real reasons why land reform has not happened at a faster pace and in a more sustainable manner.
- Implementation programmes – There is broad consensus that the State has largely failed at the implementation of land reform policy and legislation. Agri SA and affiliates, however, invest R761 million per annum on development agriculture, we are assisting 167 008 beneficiaries across 27 commodities. Agri SA is also in the process of implementing a Development Fund to finance emerging farmers, traditional leaders and transformation projects.
- Employment creation – there are 850 000 workers in the primary agriculture sector alone, when you add secondary agriculture the sector contributes between 15% - 20% of the country’s GDP.
- Potential economic consequences - the Land Banks’ terms of borrowing include unencumbered property rights at market values – the international lenders they account to will call up this exposure where property rights are affected, and market values compromised. This presents a R52 billion problem for the South African Government. This problem is enhanced by the Banks ‘new Junk Status’ declaration.
- Food security - when one looks at the correlation between food production and population growth, we may be staring down a serious humanitarian crisis in Africa.
- The congress mandate from Agri SA’s members is to oppose any constitutional amendment that will detract from the principle of just and equitable compensation for land that is expropriated.
- The aim of the constitutional amendment, as set out in the memorandum to the Bill, is silent on the bigger context of the systemic problems in land reform. No mention is made as to why this amendment is needed, nor how it would address the real systemic stumbling blocks to speedy and sustainable land reform.
- Agri SA’s position, therefore, is that the property clause is not an impediment to land reform and that no changes need to be made to section 25 of the Constitution to achieve just and equitable land reform.
The current formulation of section 25, properly applied, could result in the court determining that, in a particular circumstance, taking into account all relevant factors, it would be just and equitable to award compensation, which is substantially below market value, or even – in very rare circumstances - nil compensation. It is therefore not necessary to amend the Constitution in the manner that is being proposed.
Current state of agriculture
- Land (and its productive use) is a critical factor to produce food and ensuring that South Africa remains food secure.
- Ownership was critical for the sustainability of the agricultural sector and consistent supply of food.
- Without secure ownership and clear and protected property rights, food security cannot be guaranteed
- Agri SA acknowledges that the dispossession of land caused deep emotional wounds, which have not yet healed, and that land dispossession caused great physical and psychological hardship of an enduring nature.
- Society, was faced with the triple challenges of inequality, poverty and unemployment and that these challenges were particularly prevalent in rural areas
Agri SA is supportive of an orderly process of land reform. Agri SA’s interest in the intended amendments to section 25 of the Constitution is twofold:
- Its members constitute the largest collective of rural landowners and consequently we have an interest in ensuring that the legitimate rights of landowners and those who depend on them, are respected.
- It aims to ensure a sustainable and viable agricultural sector; we have an interest in promoting the success of land reform beneficiaries who obtain agricultural land through the land reform programme. Agri SA supports transformation in the agricultural sector with a concomitant commitment to increasing sustainable agricultural production and improving national food security. In this regard, Agri SA promotes the empowerment of land reform beneficiaries to use their land productively and to cultivate new and successful entrants to the sector.
- Today’s farmers cannot be held solely responsible for historical events and cannot be required to bear the burden of addressing apartheid dispossession disproportionately. Agri SA believes that past iniquities must be dealt with through positive, future and solution- driven action, and Agri SA wants to make a positive contribution to implementing solutions, of which successful case studies already exist.
Real reasons for slow progress with land reform
- The slow pace of land reform to date was a failure of implementation rather than a failure of legal framework.
- Lack of adequate budgeting, policy uncertainty, the lack of a comprehensive, integrated support network, lack of or poor communication with stakeholders, corruption and poor settlement support systems are the real reasons why land reform has not happened at a faster pace and in a more sustainable manner.
- The Human Sciences Research Council recently did a presentation to the Portfolio Committee on Rural Development and Land Reform that clearly illustrates the declining budgetary trends in real terms in respect of land reform. Only around 1% of the budget gets spent on rural development and land reform.
- Agri SA is deeply concerned about the seemingly ever-changing policy environment of land reform.
- This approach has created confusion and uncertainty, which is not conducive to investment and has adversely impacted on the agricultural sector.
Section 25 guarantees a fundamental human right, which is protected in terms of international human rights instruments such as:
- The United Nations’ Universal Declaration of Human Rights.
- The European Convention on Human Rights.
- The African Convention on Human Rights (African Charter on Human- and Peoples’ Rights).
- No attempt has ever been made in South Africa to amend a fundamental human right that is protected under the Bill of Rights. Fundamental rights are enshrined for a good reason – to protect individuals from government excesses that impact on their fundamental rights and to protect basic freedoms.
- Agri SA held the view that the unnecessary amendment of rights enshrined in the Bill of Rights undermines the Constitution and creates a perception that the State is simply seeking to distract attention from its failure to fulfil its constitutional duty to effect land reform by amending the Constitution through the exercise of political power.
- It can potentially scare away investors and make it extremely difficult for farmers to access production credit. This in turn, can impact on food security and the economy.
Agri SA’s Land Plan and Funding Plan propose the following salient solutions:
- Partnership models;
- A Special Purpose Vehicle for implementation;
- Sustainable financing models;
- A Social Accord; and
- Support for communal farmers.
The Chairperson highlighted the plight of graduates in the agricultural sector who were unable to find employment. He asked whether Agri SA would be opposed to expanding access to more Black farmers through a Constitutional amendment so that the Committee could answer the demand that was observed. He noted that Agri SA had emphasised the question of rural areas – to his knowledge rural areas were former native reserves, located on 13 percent of the country’s land. Did the presenter think there could be a fair situation without facilitating access to the 87 percent, which was in the hands of the minority and the State? In terms of international standards, those standards were set by colonial countries before the colonised had a say in international affairs – that was why even now there was a demand for the restructuring of the United Nations Security Council.
Dr Ndlozi asked whether Agri SA’s members acknowledged whether they had been beneficiaries of a ‘crime against humanity,’ as holders of the land. Regardless of whether it was from generation to generation or whether it was bought, it was ‘stolen’ property as it came from a crime against humanity. Was it not dishonest to state that property ownership was significant/important to economic development, like private ownership of the land, as if public ownership of the land was incompatible with economic growth. Did he know that in China and Vietnam, which were some of the ‘best’ performing economies in the world for the past 30 years, there was ‘literally no private ownership of the land’? As a result of the history of those countries having been colonised or disposed, they took a resolution that there would never again be private ownership of land. There would only be land use rights. Those economies worked ‘perfectly,’ in some instances ‘far better than economies in Europe.’ He asked whether Agri SA would have a problem if land that was not used by a farmer was expropriated to achieve the equality caused by a historic injustice.
Mr van der Rheede addressed the question regarding ‘crime against humanity.’ He wanted to emphasise that farmers at this point in time were producing food on a large scale. The farming sector earned foreign exchange for the Country – they saw exports and imports that sustained the country over the previous year. In addition, there was job creation on a massive scale, there were 800 000 jobs created per annum and that was only in the primary agricultural sector. If one considered the secondary sector, the processing side – there was massive job creation. They could not deny what had happened in the past but they needed to have a very holistic approach to addressing the social injustices of the past. Firstly, that they produced affordable food and quality food. They needed to find a way to work together with government to address the social injustices of the past while ensuring access to basic rights as prescribed by section 27 of the Constitution.
In terms of the Chinese experiences that were highlighted, they needed to differentiate between the Chinese context and the South African context. There needed to be an understanding of what was being done by the Chinese government to ensure that there was certainty. Certainty brought about greater investment. Over the past couple of years in China, they had moved away from trying to position government as instrumental in terms of economic development. They had formed partnerships – there was massive investment – even by South African companies.
In terms of the expropriation of land that was not being used, there was a fundamental difference in just confiscating land without following due processes. They needed to ensure that expropriation in South Africa did not end up in confiscation and arbitrary confiscation of land without considering of Constitutional processes.
Ms Crosby stated, that with respect to rural areas, Agri SA’s definition of rural areas broadly referred to land that was not urban – it was not specific to the former homelands – it was a broader concept. She stated that the figure the Chairperson had provided relating to land ownership was from 1994. A lot had changed since then. A lot of State land had been transferred, which was now in the hands of the current government. Apart from that they had had the land reform programme, where ten percent of the land was transferred. There was also a land audit conducted by Agri SA to look into how much land had actually changed hands without the State’s involvement. There needed to be consideration to what kind of land was being referred to. In the Agri SA land audit various factors were considered, for example, how productive was the land, and value was attached to the land in relation to that consideration. Agri SA’s estimation was that about 27 percent of agricultural land had already been transferred. There was a debate in this regard, however it was definitely not an 87 / 13 percent division anymore. They should never be understood to be saying that they were against land reform. It was how it was done and what the consequences were.
In so far as the international standard were concerned, there were a lot of African Countries mentioned that had a scale of compensation. It was not something that was drawn up by the ‘colonial powers.’ There was not a single standard – there were a number of standards. The standards were not all created at the same time.
Her understanding, as a Constitutional lawyer, had always been that the South African Constitution was underpinned by the concept of restorative justice. There was never any intention to punish anybody for what happened in the past. That was also why they had said that the cost of land reform was something that needed to be borne by everybody equally as a society and not by certain individuals who got punished. In terms of unused land – it was a very difficult concept. Who got to decide what unused land was and that it all of a sudden had no value?
Mr van der Rheede stated that in terms of unemployed youth, Agri SA shared the Committee’s concern about unemployed youth. They sat with 5 500 farms that were currently in the hands of the State – the President mentioned those farms in his State of the Nation Address (SONA). He had visited some of those farms and he was shocked to see the state of dilapidation. AgriSeta collected about R500 million per annum from the current crop of commercial farmers. That money needed to be utilised to train young people in the art of agriculture. There was almost R500 million that was also collected through statutory levies that was being paid by the sector and was sitting with the National Agricultural Marketing Council. They then had the Budget of the Department of Agriculture, Forestry and Fisheries, together with Land Reform – a massive budget. The bigger question was how could they bring all of the budgets together with that of the private sector so as to create more opportunities for young people. Not only opportunities on the 5 500 farms but on the existing crop of commercial farms. In addition, how could they bring in youth to create that infrastructure. One cannot farm without water – but the Country was sitting with serious challenges in terms of water supply, finances and training. At Agri SA they had young Black students that had completed their agricultural degrees, who they then offered opportunity for permanent employment. That was the way to go – building capacities from the grass roots levels upward. All the institutions needed to make a collective effort to address the issue of youth unemployment in South Africa. He noted that there could not be situations where farms that had been given to communities or individuals ran into serious financial trouble due to other factors. Farms that went out of production contributed to food insecurity and unemployment.
The Chairperson stated that the relevant departments had been invited to come and account before the Committee. The Members would bear in mind what was raised by Agri SA – for instance that there were budgets that were available – the Committee would ask the departments to explain why those budgets were not being utilised whilst the youth were waiting to participate in the sector. The process they were embarking on was not meant to punish anybody but to address historic injustices. He clarified that there was a difference between punishment of people and addressing historical injustices.
Black Management Forum (BMF) Presentation
Dr Sibongile Vilakazi, representing BLF, outlined the forum’s membership and purpose. She also highlighted the current context in South Africa relating to the land issue. She emphasised the need for efficiency in terms of the timeframes.
Gaps in the proposed amendment Bill
- The facets of the Draft Constitution Eighteenth Amendment Bill, 2019 ("Bill") are largely a reflection of the current section 25 framework.
- There are several hurdles standing in the way of the Bill's restorative justice object. Not the least of these is that, fundamentally, it provides little certainty and leaves the court as the arbiter of the very same socio-economic challenge of the past two and a half decades as it has over said period.
Inclusion of social obligations clause
- The most direct way of forging ahead with the restorative justice object would be to, inter alia, insert a social obligations clause in the Constitution, as has been done in Brazil.
- This clause affirms the rights of landless people who openly occupy unused land for basic livelihood purposes.
- This would provide legal protection to occupiers, instead of criminalising their actions.
- Although this was a resolution of the 2005 Land Summit, the government has not taken the proposal further and appears deeply reluctant to do so.
The relevant clause in Brazil’s Constitution reads as follows:
“The individual who, not being the owner of rural or urban property, holds as his own, for five uninterrupted years, without opposition, an area of land in the rural zone, not exceeding fifty hectares, making it productive with his labour or that of his family, and having his dwelling thereon, shall acquire ownership of the land”.
Responsibilities/process of expropriation
- The resolution also does not seek to abdicate the responsibility to declare expropriation without compensation and delegate such a responsibility to the Courts. The drafters of the Bill have erred in this regard.
- Courts must be protected from the over-reach they are sometimes accused of.
- The legislators must make clear laws with no deliberate grey areas.
- Similarly, giving all the decision powers to the Minister is problematic as it opens potential for corruption that the country is already battling with. The Minister must also be protected in this regard.
- A Committee is proposed to handle such decisions and to hold such power to be made up of a range of stakeholders – that could include the Minister.
The Chairperson stated that there were some concerns that the amendment would affect food security and the agricultural sector – those who took that view did not explain in what way that would happen. Similarly, BMF had not explained this in their response.
Mr N Masipa (DA) requested clarity regarding Dr Vilakazi’s concern around the Zondo Commission issues – he asked how she wanted the Committee to go about making the legislation. He realised they would probably be making a presentation on the Expropriation Bill. He asked who should be given the powers? She had spoken about a social obligation plan and Agri SA was very clear that at the end of the day, one needed investment and an investment plan in order to have a social obligation – how did they see the amendment occurring while still being able to attract investment to contribute to that particular social obligation? Social obligations did not just come – it came through investment. They had seen the problems that related to the fiscus. Obviously, he would like BMF to assist. BMF played an important role in terms of assisting managers and ensuring that they got jobs – but the unemployment rate was sitting just below 40 percent – they needed to make it clear so as not to create further unemployment.
Dr Vilakazi stated that BMF would be making a presentation relating to the Expropriation Bill, that would consider the mechanisms that should be followed in practice.
BMF’s view was that instead of giving all the powers to a Minister, there should rather be a separate committee that would be made up of various stakeholders in society. The Minister might be one of those stakeholders, but the Minister should not have the final say. The views needed to be canvassed by that committee; ordinary people on the ground needed to be represented there.
In terms of social obligation and attracting investment, as BMF and as professionals who had aspirations to manage their own country – they needed to start focusing on what the people needed. As much as investors, ‘every now and then,’ got concerned about certain things, it was clear that investors were more concerned about uncertainty as opposed to having a clear view. There could not be a situation, where 26 years into democratic South Africa, there was still a high unemployment rate. Part of the reason for this was ‘tiptoeing’ without concern about what South African people really needed. Investors could be lobbied behind the views that met the needs of the majority of people. Investors could not be considered as the starting point. Previously, the Country had been very worried about being downgraded as a Country – that had now happened. They needed to really focus on what the people needed. What were the aspirations of the ordinary person on the ground? Right now, the aspirations were that land needed to be returned without compensation.
Mr Kaiser Khoza, Legal Advisor, BMF, addressed the issue relating to food security. People had used the issue of food security as a ‘scarecrow.’ He grew up in the Free State, he was surrounded by farms in Harrismith. Every time he drove on the N3 or N5, at 4am or 5am in the morning, it was Black African people that were tilling the soil. He had seen a number of White farmers who owned four to five farms but they had left others to take care of those farms. It was a misnomer to state that when Black people owned the farms, they would have issues of food security in the Country. As they spoke, it was ‘Black people who ran those farms.’ There could be questions relating to how they would empower people in terms of management and administration – how to order the necessary resources for farming etc. They could be teamed up with Black Africans who had studied relevant degrees in Agriculture to ensure that the farms were managed correctly. When they went for this, it needed to be done, like it was done in other countries – on the ‘use it or lose it’ principle. If one was not able to till the land – you lost it. It needed to become productive land.
Dr Mulder stated that he had heard what Mr Khoza had just said – he stated that no one had said previously that ‘Black farmers would cause food insecurity.’ They were talking about expropriation without compensation. Dr Vilakazi had referred to the downgrading, he asked for her to repeat her answer as he had not heard it.
Dr Vilakazi stated that the point she had made was that people had made a big ‘hoo ha’ around the possible implications of being downgraded as a Country. There was a scare in the media that the implications would have been dire. Here they were, having been downgraded, and they had not seen investors really taking their money out of the Country and moving out. They had not seen it on the scale that it was anticipated. This situation was similar – they needed to focus on what was important to the people of the Country.
The Chairperson asked whether this answered Dr Mulder’s question
Dr Mulder responded that he was answered although the answer given was not accurate.
The Chairperson stated that in Vietnam and China investors had not run away because the land was owned by the State. He stated that the Committee Members would agree that they were afforded enough time to ask questions for clarity.
The meeting was adjourned.
- Media Statement: Public Hearings Begin on Land Expropriation Constitutional Amendment
- BMF submission
- Agri SA submission
- Helen Suzman Foundation submission
- Anexure B: South African Property Owners Association
- Anexure A: South African Property Owners Association
- South African Property Owners Association submission
- COSATU Submission
- COSATU presentation
- Sakeliga: Objection to the Amendment of Section 25 of the Constitution as Envisioned in the Draft Constitution Eighteenth Amendment Bill
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