POLITICS
21/05/2018 12:24 SAST | Updated 21/05/2018 12:26 SAST

Expropriation: This Is What The ANC Decided About The Constitution

There's lots of chatter about the ANC's decision regarding changing the Constitution. Arm yourself, and know the facts.

MUJAHID SAFODIEN/AFP/Getty Images

The ANC's Ronald Lamola addressed a press conference in Johannesburg on Monday morning regarding the governing party's policy decisions on the expropriation of land. This follows the party's conference on land and the way forward, held over the weekend. This is what Lamola said:

1. Government must immediately use section 25, the so-called "property clause" of the Constitution, to implement the policy of expropriation of land without compensation. This must be done, Lamola said, to test assertions in some quarters that the Constitution already enables this form of expropriation.

2. Parliament should table and pass a "redistribution" bill to enable government to ensure the just allocation of land. It should be done in conjunction with the promulgation of the Expropriation Bill, which has been in the works since 2011 and was sent back to Parliament by then-president Jacob Zuma in 2016. Lamola referred to property in urban areas as well as property hoarded for speculation purposes, unused buildings, and state land — as well as "large pieces of land".

3. The ANC's position on changes to section 25 entails considering whether or not section 25.2(b) is clear enough in its intentions. If the constitutional review process finds that it is not, and that it slows down redistribution and reform, it should be changed, the ANC has decided.

4. The ANC's approach to the Constitution is that the party will always defend it as a "transformative document" — and that it provides the government "with a mandate for transformation". (This echoes exactly what President Cyril Ramaphosa said during a recent parliamentary debate.)

5. Lamola added that the ANC does not regard the Constitution as a "sell-out document"; that is is clear on the transformational imperatives and about what legislation should be implemented to enhance this.

The so-called "property clause" in the Constitution
25. (1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application — (a) for a public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected, or decided or approved by a court.
(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including — (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.
(4) For the purposes of this section — (a) the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and (b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
(8) 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 (Chapter 2: Bill of Rights 11) of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).