7 December 2021
CONSTITUTIONAL AMENDMENT NOT NECESSARY TO ACCELERATE LAND REFORM
EXPROPRIATION WITH NIL COMPENSATION IS ALREADY CONSTITUTIONAL
Madam Speaker,
Our country has a painful land history.
Colonial and apartheid laws were the weapons of land dispossession for the majority and land enrichment for the minority.
That is the pattern of land ownership that persists today.
It is an immoral and unjust pattern.
GOOD agrees that there is an urgent need to accelerate land reform and to address the spatial and economic injustices of dispossession and landlessness.
And, GOOD agrees that expropriation is a legitimate tool to fix these injustices.
Expropriation is nothing new.
Expropriation of farms, homes, land and movables went on for decades.
It was enabled by the laws of a hateful regime who created a system that was declared a crime against humanity.
Expropriation by the state continued under the current 1975 Expropriation Act.
And the state’s right to expropriate property for public purpose, and in the public interest, was included in the new South African Constitution.
Expropriation by all three spheres of government has continued throughout the democratic era.
In practice, political parties who today oppose expropriation as a legitimate tool to achieve land reform continue to expropriate land where they are in government.
The question of expropriation without compensation is already settled law.
Section 25 of the Constitution already provides that nil compensation may be paid if it is just and equitable.
There is therefore no need to amend the Constitution to achieve a just, equitable and accelerated land reform programme that includes nil compensation when appropriate.
Madam Speaker, this 18th Amendment Bill is intended to make “explicit that which is implicit”.
But, this interpretation of Section 25 of the Constitution has already been confirmed by the Constitutional Court in 2002.
In the case of First National Bank of SA Ltd vs The Minister of Finance the Constitutional Court said:
“…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”.
The Minister of Public Works and Infrastructure recently published a Bill to amend the law of general application, the Expropriation Act, to expressly provide for the circumstances under which nil compensation would be just and equitable.
We must adopt that Bill and get on with it.
Our failure to adequately address land reform is not a failure of the Constitution and in particular Section 25.
It is a failure of the state to use the Constitutional powers it has to give effect to land reform.
GOOD supports the need to urgently speed up our land reform programme.
GOOD does not support the amendment to the Constitution because it is unnecessary because expropriation with nil compensation is already provided for in Section 25 of the Constitution as it is now.