The ANC's economic transformation committee dropped a bombshell on Wednesday night when Enoch Godongwana, the committee chairperson, announced the governing party would recommend that the Constitution be amended to enable expropriation without compensation.
He told the media that the debate almost collapsed the party's conference and that the decision was prompted by widespread anger among many South Africans about access to land.
1. WHAT DOES THE CONSTITUTION SAY?
Land expropriation is governed by article 25 of the Constitution. It determines that land may be expropriated and that compensation paid for it must be "just and equitable". The article specifically states that the history of the land and how it was acquired, as well as the country's commitment to redress historical injustices, need to be taken into account.
2. BUT DOES THE CONSTITUTION REFER TO THE PAST?
Yes, it does. Article 25(8) says: "No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1)."
3. SO, CAN LAND CURRENTLY BE TAKEN BY THE STATE WITHOUT HAVING TO PAY FOR IT?
No, the Constitution does not allow it. Phephelaphi Dube, director of the Centre for Constitutional Rights, says: "No one provision in the property clause should be read holistically and no one provision should be applied in the abstract without a reference to the other provisions. This makes it highly unlikely that expropriation without compensation, even for land-reform purposes, could ever be within constitutional parameters."
4. BUT CAN THE STATE TAKE LAND IF IT IS DEEMED IN THE PUBLIC INTEREST?
Yes, an amended Expropriation Bill was passed by Parliament last year but sent back to the legislature by President Jacob Zuma because of constitutional shortcomings. The bill effectively does away with the "willing-buyer-willing-seller" concept and mirrors article 25 in the Constitution.
5. HOW EFFECTIVE HAS THE STATE BEEN IN EXPROPRIATING LAND IN THE PUBLIC INTEREST?
Not effective at all. Land reform and restitution programmes have been mired in poor governance and ineffective implementation for years. Former deputy chief justice Dikgang Moseneke famously criticised government for its lethargy on the matter: "The Constitution does not protect property it merely protects an owner against arbitrary deprivation. Deprivation that is not arbitrary is permissible. "The property clause does not carry the phrase: 'willing buyer: willing seller', which is often blamed for an inadequate resolution of the land question. The state's power to expropriate does not depend on the willingness of the landowner. The compensation may be agreed but, if not, a court must fix it. The compensation must be just and equitable and not necessarily the market value of the land."
6. OKAY, BUT WHO OWNS ALL THE LAND?
According to the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape, land is owned:
- 67% by 'white' commercial agricultural land
- 15% by 'black' communal areas (mostly state-owned)
- 10% other state land
- 8% by the remainder, including urban areas.
Black people and government together own about 26% of commercial agricultural land, up from 14% when apartheid formally ended in 1994.
7. WHAT NEEDS TO HAPPEN FOR THE ANC TO CHANGE THE CONSTITUTION?
The founding provisions and Bill of Rights in the Constitution require a majority of 75% to amend it. Article 25 forms part of the latter. To change the Constitution the ANC needs 300 votes. It currently has 249 members and would therefore need the support of 51 opposition MPs. The EFF have offered the ANC their 25 votes.The DA has 89 votes, the IFP has 10 and the National Freedom Party six.