Advocate Ngcukaitobi and GOOD agree – Expropriation Bill is a good idea; amending the Constitution isn’t

Statement by Mark Rountree, GOOD National Policy Officer

30 August 2021

Land Affairs expert Advocate Ngcukaitobi has come out in support of the Expropriation Bill and against the need for amending Section 25 of the Constitution.

Ngcukaitobi is reported to have said that the process to consider amending Section 25 of the Constitution “is a monumental waste of time. If the ANC wants serious progress on land, what it should do right now is to pass the Expropriation Bill.”

This is exactly the position of GOOD. GOOD has consistently said that there is no need to amend Section 25. GOOD’s 2019 national election manifesto said “a section 25 constitutional amendment is not required: government already expropriates land and section 25 already allows for zero compensation where appropriate”.

The Constitutional Court in 2002 already confirmed expropriation at nil compensation was possible, stating “…that there are appropriate circumstances where it is permissible for legislation, in the broader public interest, to deprive persons of property without payment of compensation.”

Expropriation in South Africa currently takes place under the Expropriation Act of 1975. This apartheid-era legislation is not aligned with our democratic Constitution and is being updated. The legislation to replace it – the Expropriation Bill – will make the courts the final arbitrator of compensation values.

The EFF is opposed to the Expropriation Bill, rather wanting the Constitution to be amended. The DA is also opposed to the Bill, seemingly preferring that the current apartheid-era legislation, albeit unconstitutional, remain in place.

GOOD supports repealing the apartheid-era Expropriation Act and replacing it with the Expropriation Bill, but we do not support amending Section 25 of the Constitution.

In addition to Advocate Ngcukaitobi description of the Section 25 amendment process as “a monumental waste of time” it is also a huge waste of money and diverts away from the process of government actually getting on with the work that needs to be done.

Land reform is a critical issue to ensure redress for the injustices of the past. Passing the Expropriation Bill – legislation that is aligned to and enables our democratic Constitution – will help to speed up land reform, whilst also ensuring businesses and owners’ rights are protected through the courts.

We are humbled and reassured that the views of Advocate Ngcukaitobi, one of South Africa’s leading experts on land reform, aligns with our GOOD policy.