The African National Congress ("ANC") held its first
ever Land Summit ("Summit") over the weekend of 19 and 20
May 2018. There were a number of noteworthy aspects to this Summit,
not least of which is the fact that it was open to the general
public and not only to ANC members. The Summit ultimately made a
number of recommendations which will be put before the ANC's
National Executive Committee ("NEC") for adoption. The
most significant recommendations for the purpose of this update are
- to immediately use section 25 of the Constitution to press ahead with expropriations and to test the argument that it allows expropriations without compensation in certain circumstances; and
- to immediately pass the Expropriation Bill and the Land Redistribution Bill.
The recommendations which came out of the Summit generally seem to show a welcome move away from the rhetoric that the Constitution has been the barrier to transformation in the land ownership patterns of the country. In fact, the ANC went as far as to state its commitment to the Constitution affirmed that from its perspective "the Constitution is not a sell-out document".
Importantly, if the recommendations of the Summit are ultimately adopted by the ANC's NEC and acted upon, it seems that the amendment of section 25 of the Constitution may no longer be a given. To this end, the Summit recommended that the Constitutional review process should be used to ensure that any ambiguity in respect of section 25(2)(b) of the Constitution is removed and, if it is found that any law impedes or slows down effective land redistribution, such law also be addressed in this process.
We set out below some thoughts on the two key recommendations set out above.
IMMEDIATELY USING SECTION 25 TO EXPROPRIATE
The recommendation that section 25 of the Constitution be put to the test immediately to see the extent to which it enables expropriations of land for redistribution, even expropriations without compensation, is arguably the most sensible outcome of the Land Summit. Implicit in the recommendation is an acknowledgement that the government has not really tested the expropriation potential of section 25 of the Constitution, at least not in respect of expropriation for land redistribution.
Embarking on a concerted programme of expropriation of land for purposes of redistribution, as mandated by the Constitution, is, arguably, long overdue and should bring to the fore the extent to which factors other than government ineffectiveness have impeded progress in respect of land redistribution. The inevitable litigation that will ensue should also result in much needed judicial guidance on what factual scenarios would satisfy the Constitutional standard and which would not, particularly in respect of expropriation without compensation.
In our view, if the government is to truly test what can be achieved through section 25 of the Constitution, it would be best for it to embark on a general expropriation for redistribution programme – as this has not been done to date – and not merely a programme focused on expropriation without compensation. In other words, the concerted expropriation programme should encompass a whole range of expropriations, i.e. expropriations with compensation paid, the amount of which is determined using the test laid down in the Constitution rather than "market value", and expropriations without compensation, where this is justifiable in terms of the Constitutional test. If a programme of this nature is followed, then the debate about whether or not there is a need for Constitutional amendment can be one supported by actual data on what is possible or not in the ambit of the provision rather than generic unsubstantiated statements about the hurdles it presents.
In the absence of a true testing of the transformative potential of section 25 of the Constitution, it is likely that any draft amendments to the Constitution will be misguided, irrational (in the legal sense) and potentially have a range of unintended consequences, including being open to constitutional challenges for contravening other rights.
To this end, it is worth pointing out that the scenarios set out in Helen Zille's article titled "It's time for a test case on expropriation without compensation" would probably be good starting points to argue for the payment of zero compensation in respect of expropriations.1
IMMEDIATE PASSING OF THE EXPROPRIATION BILL AND REDISTRIBUTION BILL
The Summit recommended that Parliament immediately pass the Expropriation Bill, presumably because this is the primary statute through which the testing of section 25 of the Constitution can occur. There is nothing particularly controversial in this recommendation, other than to note that the Expropriation Bill was actually already passed by Parliament as far back as May 2016. After it was passed, it was sent to the President for assent and signature into law. The President did not sign the bill and rather sent it back to Parliament, citing constitutional concerns about, among other things, the adequacy of the consultation process on the bill.
The Expropriation Bill itself is not particularly radical and largely repeats the provisions of section 25 in respect of expropriation. The most controversial aspect of the Expropriation Bill has been the fact that it authorises expropriation "in the public interest" and not merely for a public purpose. The "public interest" is defined to included "the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's national resources...". The breadth of this definition has been a concerning factor for a lot of property rights holders. The other main area of controversy relates to the calculation of the compensation payable for an expropriation under the Bill. The extant expropriation legislation (i.e. the Expropriation Act, 1965) supports the payment of market value related compensation for expropriated property, and the Bill seeks to replace this regime with the "just and equitable" regime of section 25 of the Constitution.
The immediate passing of the Expropriation Bill is an essential cog if the ANC is to truly embark on a concerted expropriation programme for land reform purposes. The existing Expropriation Act is simply not well-suited to this purpose. Importantly, even under the Expropriation Bill, the non-payment of compensation will have to be on an ad-hoc basis on the application of the constitutional test and the weighing up of all relevant factors.
Finally, we note that Mr Ronald Lamola spoke about the recommendation that a Redistribution Bill be passed which will address redistribution of land issues alongside the Expropriation Bill. While it is not entirely clear, in the absence of a draft statute, what this bill will address specifically, it is noteworthy that it has been mentioned that the focus will not be limited to agricultural land but also urban land. In this regard, specific mention was made of properties owned by organs of state which are not utilised which could address urban land needs.
If the outcomes of the Summit are anything to go by, it seems to us that the public debate on the land question and on the motion passed by Parliament in relation to compensation of land without expropriation has, so far, had an overall positive impact. The outcomes of the Summit seem indicate an acceptance by the ANC that the primary hindrances to the transformation of land ownership patterns in the country have been the policies adopted by the government and the failures in how they've been implemented.
A concerted effort by government to pursue the constitutional mandate contained in section 25 of the Constitution is the rational and responsible starting point for expropriation of land for redistribution purposes. It is only after this option has been wholeheartedly pursued by government, and thwarted by the application of section 25, that amendments to this section of the Constitution should be considered.
Lastly, we note that the approach of passing the Expropriation Bill as a matter of priority and proceeding with a concerted effort to test what is achievable under section 25 of the Constitution is also one that means that the government can embark on the envisaged redistribution programme as soon as possible. If the mooted land redistribution were to be preceded by a Constitutional amendment, it is unlikely that much actual redistribution action would be possible within the next two years. This is because an amendment of the Constitution would likely take several months to achieve from the time a draft is first put out to the public. Once the Constitutional amendment is in place, it is likely that consequent amendments to some statutes, or entirely new statutes, would be required before actual action could be taken pursuant to the amended constitutional provision. This period could be even longer if the resolution that extensive public engagement be undertaken on any proposed amendment were to be taken seriously and implemented thoroughly.
Accordingly, using section 25 of the Constitution as it stands is, in addition to the matters set out above, probably the most efficient (from a timing perspective) manner of embarking on a programme of expropriation for redistribution.
1. This article ran in various publications. Here is a link to the news24 column https://www.news24.com/Columnists/GuestColumn/its-time-for-a-test-case-on-expropriation-without-compensation-20180507
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