Section 25 review of Constitution: public hearings day 2

Meeting report

The Chairperson said the oral submissions constitute the second phase of the public hearings on the proposed amendment of Section 25 of the Constitution. The first phase of public hearings had already been conducted by the Committee in the various provinces.

The Committee was obliged to facilitate public involvement on this matter. Section 59 and Section 72 of the Constitution were the key provisions requiring the public to be given an opportunity to present their views on the issue of the potential amendment of Section 25 of the Constitution. The Committee was also obliged to operate in accordance with the joint rules of Parliament. Written submissions had already been received from the presenters. Once the oral hearings had been fully completed the Committee would debate further. The Committee’s views would be captured in the final report, which would be presented to Parliament.

Agri South Africa (Agri SA)

Dr Annelize Crosby, Legal and Policy Advisor, and Mr Christo van der Rheede, Deputy Chief Executive Officer (CEO), gave oral submissions on behalf of Agri SA.

Mr Van der Rheede said Agri SA acknowledged the pain, suffering and violation of inherent human dignity characterising South Africa’s past. South Africans had had to endure during decades of forced removals and the dispossession of land which had caused untold suffering and violated their human dignity. Agri SA was committed to land reform as contained in Section 25 of the Constitution. Since the Constitution’s enactment, government had embarked on a number of land reform initiatives. These government initiatives had had very little impact on changing the lives of South Africans for the better. Agri SA had actively participated in a number of processes related to farm and agricultural development. It had also participated in the process which had led to the development of the National Development Plan (NDP). However, a fragmented State machinery meant very little had happened to facilitate land reform and development.

There was a misalignment between national, provincial and local government which had hampered progress in facilitating land reform. There was little cooperation between the three spheres of government. Polices at different spheres of government were often in conflict with one another. There was little cooperation between State departments, including institutions such as the Land Bank, the Department of Trade and Industry (DTI) and State agricultural colleges. It was stressed there was a lack of proper alignment and strategy between the different spheres of government and State institutions.

The misalignment in policy and coordination was a damming indictment on the government and politicians who had failed to ensure there was the proper coordination which was necessary to properly implement and successfully achieve land reform. Political leadership had also failed to hold State institutions accountable for their failure to facilitate land reform. Amending Section 25 of the Constitution would achieve the outcomes sought in overcoming the legacy of South Africa’s past. Section 25 in its current form already provided the State with sufficient legal powers to ensure an orderly process of land reform according to pre-determined legal prescripts.

A fresh perspective was needed on how to facilitate land reform. Commercial farming played a crucial role in the economy and also ensured South Africa’s food security. Agri SA pleaded with the government to examine the work Agri SA had already done to empower previously disadvantaged farmers throughout the country. More than 100 000 farmers currently benefited from the measures Agri SA had put in place. These farmers also already exported to international markets.

South Africa’s economy was currently suffering due to the uncertainty around land reform. Commercial farming was also suffering as a result of this uncertainty. Security of tenure and access to land should be expanded to benefit all South Africans, not just a privileged few. Land ownership empowered people and also restored their dignity. The slow pace of land reform was not because of the Constitution. The lack of government coordination and poor beaurcratic processes – which were also highly fragmented and unaccountable – were the main barriers to facilitating land reform.

Dr Crosby continued the submission, and said Agri SA’s position was that Section 25 of the Constitution served two purposes. Firstly, it guaranteed and protected private property rights and ownership. Secondly, it clearly instructs the State to rectify unequal access to land and to address injustices of the past. The government currently had no coherent policy to give effect to the second mandate of Section 25 of the Constitution.

Dr Crosby stressed Mr Van der Rheede had been correct in saying the problem did not lie with the Constitution. Rather, the lack of political will and the proper implementation of land reform policies were the fundamental barriers to facilitating land reform. There was no constitutional or legislative impediment to implementing land reform. The private sector could also play a role - in conjunction with government - to facilitate land reform.

Ownership of property was regarded as a fundamental human right. It was protected in all fundamental human rights conventions, such as the United Nations Declaration on Fundamental Human Rights and the Africa Union Convention on Human Rights. It was a serious matter to change or limit a fundamental human right.

The international law approach to compensation – following an expropriation – was based on the principle of equality in furthering the public interest. This meant that where an individual had to bear a sacrifice, such as the loss of property for the common good, then those individuals should be compensated for bearing that sacrifice. To remove that principle would be out of step with most European and African countries.

Almost all countries across the world adhered to this international principle, and pay compensation following an expropriation. The amount of compensation, however, differed from country to country. In some countries expropriation required full compensation. Other countries require only “adequate compensation,” or “fair compensation”.

Expropriation without compensation would also have negative economic consequences. President Ramaphosa had said expropriation without compensation would take place in a way which did not harm the economy and food security. However, the economy had already suffered as a result of the uncertainty which the debate around expropriation without compensation had created. Evidence had already started to indicate that the debate had also had an impact on the sale of farms. Potential consequences for the banks would also arise. The banks had indicated they were very concerned about the potential impact of expropriation without compensation on their own loan books.

Economic uncertainty also impacted on food security. This was because food security consisted of four different elements: affordability, availability, quality and safety. Affordability was a key component. A shortage of food due to decreased production, or a higher cost of food imports due to the weak rand, had a corresponding negative impact on affordability. This negative impact on affordability then threatens food security. This impact on affordability was felt most strongly by the poor.

Discussion
 
Mr S Swart (ACDP) said a number of speakers had referred to the High Level Panel report on the Assessment of Key Legislation and the Acceleration of Fundamental Change. It may be worthwhile for the Committee to receive further submissions on that report later. Agri SA’s presentation had been quite critical of government’s role in not facilitating land reform. To what extent did Agri SA engage with government through colloquiums in an attempt to address issues of agriculture and land reform? The previous day, South Africa had entered into a technical recession. A key factor leading to the technical recession was the reduction of agricultural output. To what extent was the reduction in output caused by policy uncertainty? Could the reduction be attributed to other factors, such as international markets and the drought?

The Chairperson asked Mr Swart how his questions would assist the Committee in dealing with the current matter of expropriation.

Mr Swart said his questions referred to points raised in the presentation. They touched directly on matters such as the effect of policy uncertainty on agricultural output, and whether Agri SA had actively engaged with government on these issues.

The Chairperson said those questions were not directly relevant to the issue of expropriation without compensation. Committee Members should limit their questions to clarity-seeking matters. He could not allow the questions that had been raised, because they were not of a clarity-seeking nature and were not relevant to the question of expropriation.

Mr Swart said the conduct of the Chairperson was unfair and inconsistent. The previous day he had allowed Members to ask questions which were not of a clarity-seeking nature.

The Chairperson appeared to allow the questions raised by Mr Swart. He pleaded with the Committee to keep their questions to the point and limit questions to those of a clarity-seeking nature. He requested the Members to refrain from engaging in politicking

Mr Swart took offence. Was the Chairperson suggesting he was engaging in politicking? Was the Chairperson saying his questions were not questions of a clarity-seeking nature?

Ms T Mokwele (EFF, North West) raised a point of order. The Chairperson had made a ruling on this matter. There was no need to engage in a debate. The ruling of the Chairperson was final.

Mr Mpumlwana said only a small percentage of the land was owned by black Africans. The presentation had said a large percentage of the land was owned by the state, and had also appeared to say that expropriation should not be used to facilitate land reform and that other methods should be used. The willing seller-willing buyer programme allowed land owners to increase the amount of compensation which should be paid to them following an expropriation. The State may not have enough money to pay for the amounts demanded from land owners as compensation for expropriation of their land. What alternative did Agri SA propose – instead of changing the Constitution – to facilitate land reform?

Dr Crosby responded that their written submissions provided comprehensive details regarding the patterns of current land ownership pursuant to the land audit. It was stressed Agri SA was not opposed to expropriation to facilitate land reform. Agri SA was, however, opposed to expropriation without compensation. It recognised the constitutional power of the State to expropriate for purposes of land reform. The Constitution had never imposed an obligation on the State to pay the price demanded by a property owner for an expropriation of their property. Willing buyer-willing seller was a government policy which had been chosen, but was not a requirement of law. A problem was that the courts had not had an opportunity to determine what constituted ‘just and equitable’ compensation. Financing mechanisms could be used which guaranteed bank loans to make land reform more affordable. An effective way of facilitating land reform was through facilitating and developing mutually beneficial partnerships.

Mr Van der Rheede added that the last part of Section 25 of the Constitution made it clear that nothing in Section 25 stood in the way of the state’s duty to facilitate land reform. The State had not made sufficient use of that Section to facilitate land reform. Section 25 also expressly provided that the State must also secure security of tenure. There had been no real attempt by the State to properly implement Section 25 for those purposes.

Dr M Motshekga (ANC) asked whether the presenters were aware of the fact that many land owners had acquired property for next to nothing. Agri SA had made it clear they were opposed to expropriation if it was without compensation. Were they suggesting that people who received land for nothing should be compensated, given the fact they had acquired the land for nothing?

Dr Crosby responded that Section 25 of the Constitution already catered for the situation referred to by Dr Motshekga. It allowed for less than market value compensation in those situations. In extreme situations, where the land had originally been stolen, then the courts may conclude that zero compensation would be justified.

Mr M Filtane (UDM) said security of tenure in South Africa was guaranteed in Section 25(1) of the Constitution. The problem was that protection of security of tenure protected individuals who had unjustly acquired property. That was the problem which the Committee had to resolve. Section 25(8) allowed for legislation to be enacted to protect security of tenure. Agri SA was opposed to expropriation without compensation. However, no compensation had been given to people who had their land taken in the first place. The only solution was to amend Section 25 to allow for that injustice to be corrected. What about the human rights of people who now lacked land and could not produce food? The only instrument to rectify land ownership was to expropriate without compensation. The government could not be expected to go to court in every instance where it wanted to expropriate land without compensation to facilitate land reform.

Mr Van der Rheede responded it was critical to understand that South Africa had committed itself to a constitutional State in 1994. The Constitution protected the fundamental rights of all people. However, South Africa did have a terrible past which had severely impacted peoples’ lives. Apartheid had provided for forced removals and discrimination. There was very little one could do about what had happened in the past. What one could do was to create a better future to rectify the injustices of the past. The constitutional dispensation laid the basis for the manner in which those injustices could be rectified. If one tried to amend the past through amending the constitution, then one threatened the very basis on which the constitution rested. Under no circumstances could South African society allow a situation where the injustices of the past were rectified through violating the dignity of other people. In 1994, South Africa had decided to create a non-racial state. To punish people on the basis of their race was contrary to the spirit of the Constitution. Section 25 allowed for redress of the legacy of the past, but such redress must take place within constitutional means.

Dr Crosby added the Constitution was underpinned by reconciliation, and not punishment. There was no fairness in punishing a current owner who had obtained the land many years ago. The High Level Report made it clear that simply because Section 25 required compensation did not, in itself, constitute a barrier of access to land. The High Level Report also made it clear that less than 1% of the national budget had been allocated to land reform in recent years. How then could it be said there was money to facilitate land reform within the current constitutional framework?

Ms Mokwele said the presentation and response of Agri SA clearly showed the white minority would do anything within their power to ensure the black majority did not get access to land. The manner in which Agri SA had behaved clearly illustrated they were only interested in profit making and that they would not survive without the economic benefits the patterns of land ownership provided them.

Mr Swart raised a point of order. The comments of Ms Mokwele were out of order.

The Chairperson agreed.

Ms Mokwele proceeded to put her question to Agri SA to explain what her actual question was, which the Chairperson allowed.

Ms Mokwele said her question was whether Agri SA was willing to protect its own industry and economic interests. How did it explain or view the injustices of the past? Land had been taken from the South African people without compensation. People had been forcibly removed from their homes. The only thing that current land owners did with their land was to reap profits. If Agri SA was opposed to expropriation without compensation, how could they justify that position given the fact the majority of the country had their land taken from them without compensation? In her view, Agri SA’s position in opposing expropriation without compensation showed they were not in favour of ensuring true equality for all South African people.

Mr N Koornhof (ANC) said Section 25(3) of the Constitution identified five considerations which should be considered to determine ‘just and equitable compensation,’ which was not an exhaustive list. Did Agri SA agree with the factors listed in Section 25(3)? The Constitutional Court had considered those factors only once. Agri SA had stated they supported the Constitution. Did they agree that compensation could be zero in certain circumstances under the current formulation of the Constitution?

Dr Crosby said Agri SA fully agrees the injustices of the past needed to be addressed. She agreed with Mr Koornhof that the factors in Section 25(3) of the Constitution did not constitute an exhaustive list. Agri SA, however, opposed a constitutional amendment to Section 25. There was an opportunity to expand the list. If a case came before the courts, then the courts could expand upon the other factors listed in Section 25. It was not possible to list all the relevant factors which should be taken into account in determining what ‘just and equitable’ compensation would be in the Constitution itself. Agri SA’s view was that zero compensation was possible in principle. However, it would have to be a very exceptional case for zero compensation to be paid following an expropriation.

Ms D Carter (COPE) said a process of land claims had been registered against farms. People often referred to “stolen land,” which referred to the 1913 Land Act. Was land still owned by farmers who had been involved in the removal of people from their land?

Mr Van der Rheede said restitution claims for people dispossessed of their land was a process which was still currently unfolding. Agri SA had no influence over that process. The restitution process did, however, provide for a process of investigation to determine how property – subject to a land claim – had been acquired by the current owner of the land. He stressed that Agri SA had no capacity or mandate to determine how land claims were processed.

Dr Crosby reiterated what was said by Mr Van der Rheede. Agri SA did not have the capacity – or mandate – to determine inter-generational ownership of farms or land.

Ms M Mathapo (ANC) said she was pleased Agri SA had acknowledged the land dispossession and suffering of the South African people. Why then did Agri SA not support the motion to expropriate land without expropriation to rectify the injustices of the past? The presentation dealt strongly with food security. Food security, however, was enjoyed by only a minority of South Africans. The majority of South African people did not have food security. The majority must have food security.

Mr Van der Rheede said Agri SA wanted to extend a hand to society and the government as a whole to assist where they could. Household surveys showed, however, that in most former homeland areas there were very high levels of food insecurity. People were migrating on a large scale to areas where there was commercial activity. Society was wasting a lot of time trying to rectify the injustices of the past. A hands-on approach should be adopted. The commercial sector should be invited to go into rural areas to capacitate rural farmers to equip them to ensure food security and provide adequate levels of food production. South Africa could not afford to lose its competitive edge in terms of food production, which threatened the stability of the entire economy.

Ms Mokwele interjected, and said it was not acceptable for Mr Van der Rheede to say that Parliament was wasting its time. It was also not acceptable for him to say Parliament was wasting its time by addressing the injustices of the past. South Africa was currently facing a crisis on land reform precisely because of what had happened in the past. It was necessary to fully determine what had happened in the past and to find ways to address those historical injustices.

The Chairperson said Mr Mokwele was attempting to engage in a debate which had nothing to do with the current proceedings. The points she had raised were therefore not points of order. Agri SA was entitled to form their own view on these issues, and to express those views.


National African Farmers Union (NAFU)

.Before NAFU gave its presentation, Ms Carter said the Committee Members must refrain for using racial slurs, insults and stereotypes during the meeting. All Members of Parliament had taken an oath of office swearing to uphold and respect the Constitution, which was based on non-racialism. In her view, the EFF persistently and continuously used racial slurs and insults whenever a white presenter or Committee Member made a comment with which the EFF disagreed. This was unacceptable behaviour, and the Chairperson should intervene.

Ms Mokwele asked what was wrong about referring to the fact that people were white? White people had disposed the majority of black South Africans of their land.

The Chairperson said the debate between Ms Mokwele and Ms Carter had nothing to do with the current matters before the Committee. He requested Mr Motlala to give his presentation.

Mr Motsepe Motlala, President, NAFU, said all South Africans, black and white, should appreciate and understand the issues around land reform and the need to redress the legacy of the past. Painful truths need to be acknowledged by all involved. All citizens of the country could make a meaningful contribution within the boundaries of the Constitution. More than 60% of the South African population did not have land.

The definition of “property” in Section 25 of the Constitution was problematic, as it was unclear. It meant people would have to approach the courts before the proper meaning of Section 25 could be determined. The law had played a central role in land dispossession in South Africa, such as the 1913 Land Act. The 1913 Land Act had been used to dispossess the majority of people in South Africa. The question was how to address that legacy of dispossession.

When the homelands were created, black South African people were not compensated for the dispossession of their land. This was an issue which no person seemed to be talking about. The manner in which compensation was determined under Section 25(3) was also problematic and needed to be amended. The Committee also had to seriously consider the expropriation of property under the 1995 Expropriation Act.

White commercial agricultural had received heavy State subsidies in establishing their commercial farming enterprises. Black farmers had received none of that same support. NAFU believed the government needed to take a stronger role in regulating the South African agricultural industry. It was working with Agri SA and other unions to solve painful issues. In the end fairness must prevail. Black farmers had to be assisted so that they could meaningfully participate in the economy.

White farmers received an agricultural credit bond. Such bonds were given to white farms on very favourable terms. There must be a change. The Land Bank was created in 1996. Black people, however, were considered to be risky in respect of loans, which was brutally unfair. Parliament should look into this issue. The Development Corporation had also failed, and had completely collapsed. The Constitution should be amended to explicitly provide for the nationalisation of land.

No section of society could wish white people away. White people were citizens of the country and their rights must also be respected. An agricultural CODESA should be established to determine the way forward and to ensure inclusivity in the agricultural sector. Land was priceless and should be not be sold. Water was also priceless, and the Water Act should also be amended to provide for the nationalisation of water.

Discussion

Dr C Mulder (FF+) said it was clear that Mr Motlala was proposing that Section 25 of the Constitution should be amended, all land should be nationalised, and private ownership of property should be abolished. The oral presentation had made no mention of communal land or the Ingonyama Trust in Kwa-Zulu Natal. However, in NAFU’s original written submissions, they had proposed that government introduce reforms to address the dispossession of land by traditional leaders, and to ensure greater security of tenure in communal areas. Did NAFU propose nationalising all land, which would then include the Ingonyama Trust?

Mr Motlala responded that NAFU does propose nationalising all land, including communal land and the Ingonyama trust.

Ms Mathapo said NAFU had emphasised that South Africa’s land belonged to all who lived in it, and emphasised that land ownership followed models of land ownership based on African principles. Could NAFU expand upon what that meant according to the realities on the ground in rural areas? NAFU had also said all people were children of God. Would people who were dispossessed during wars in the past be regarded as children of a lesser God? How did NAFU propose the nationalisation of communal land would occur in practice?

Mr Motlala said nationalisation would solve many problems around land reform and insecurity of tenure. It would not solve all the problems around land reform, but it would ensure that everyone had an equal stake in land ownership, which would ensure cooperation. African principles of land ownership meant that land should not be sold to the citizens of any country, because land was priceless. Land should be treated differently from buildings. Section 25 should be amended so that land and buildings could be treated separately. Nationalisation should not be used as a punishment for different racial groups. All South Africans needed to have their rights protected and to cooperate.

Ms T Mampuru (ANC, Limpopo) said, if she understood the position of NAFU correctly, they had derived their arguments on their position on nationalisation and land reform from the Freedom Charter. NAFU appeared to be saying there was a contradiction between the Freedom Charter and Section 25 of the Constitution. She requested NAFU to elaborate further on what their understanding of the land question was, and how best to facilitate land reform. The arguments of NAFU, in her view, were not very clear.

Mr Motlala said his presentation was based on the Freedom Charter. The Constitution sets the record straight. Land reform and redress must be facilitated.

Mr D Stock (ANC, Northern Cape) said NAFU had made it clear that the issue around expropriation without compensation was about facilitating redress. It was not about punishment. NAFU had, however, also made it clear that black farmers needed to be capacitated so that they could properly contribute to the agricultural sector and economy. What could be done to ensure that black farmers were given an opportunity to meaningfully contribute towards the agricultural sector and the economy?

Mr Motlala said it could not be the case that white South African citizens could dictate to the majority of black South Africans what was in the best interests of black people. White and black people needed to come together to form a common vision on the way forward. The deregulation of agriculture at the beginning of 1994 had been, in his view, a crime against black farmers. It meant that black farmers had to compete with white farmers who had had decades and decades of experience. Regulation of farming should be re-examined. Nationalisation could create a common vision and commitment for all South Africans. There would be no black or white farmers, only South African farmers. This was the goal which NAFU wanted to achieve.

Mr S Mncwabe (NFP) asked for clarity on how communal land would be nationalised. The current position was that traditional leaders were the custodians of communal land. The traditional leaders did not own the land, they only administered it on behalf of the people as custodians. If communal land was nationalised, would that not take away a number of powers and responsibilities from traditional leaders?

Mr Motlala said NAFU had the highest respect for traditional leaders. Traditional leaders had made a valuable contribution in establishing the ANC. NAFU had proposed communal land also be nationalised in the interests of fairness. It would be tragic to disrespect traditional leaders. A CODESA should be established to determine how traditional leaders would administer nationalised land in communal areas. Every person should be treated with dignity and fairness.

Mr Swart asked whether NAFU believed there was anything contained within Section 25 of the Constitution in its current form which could prevent expropriation without compensation.

Mr Motlala said Section 25 was currently unclear on a number of issues, which led to confusion and conflict. Section 25 should be examined and reviewed to allow for greater clarity. It should also be amended to clearly provide for expropriation without compensation. Amending Section 25 could help establish a future which would benefit all South African people.

Ms Carter said if land was nationalised, how could security of tenure be secured? How could security of tenure of the members of NAFU be secured, if at all? NAFU had proposed that following a process of nationalisation, everyone should lease land from the state. Did NAFU have a proposal as to how that lease process would work in practice? Did it support the proposal that the amount of land an individual or group could own should be restricted?

Mr Motlala said it would be premature for him to express a final view on those matters. Those issues should be dealt following greater consultation in a process like an agricultural CODESA.

Ms Mokwele asked if NAFU agreed the State should have the responsibility to capacitate people in control of communal and trust land, to ensure that land was properly managed and administered?

Mr Motlala said there a number of contradictions in South African society which threatened the future stability of South African society. An agricultural CODESA should be established to properly engage on matters of land reform and inequality. He had attended six of the hearings on land expropriation in the provinces. Many people had attended those hearings without any shoes. NAFU unambiguously identified itself with poor South African people.

Mr E Buthelezi (IFP) asked if the agricultural CODESA suggested by Mr Motlala should take place before or after any proposed nationalisation of land?

Mr Motlala said expropriation without compensation was a process which was being driven by the South African Parliament. Parliament must first complete its work and then a proper decision on how to proceed could be made at that point.

Mr Mpumlwana said NAFU had pushed strongly for the nationalisation of land. Under the law as it currently stood, title deeds made it clear that all minerals and water beneath the surface of the land did not belong to the landowner, but instead belonged to the government. Did NAFU propose that nationalisation of land should also include what was beneath of the land? Was a new law of general application required to determine that what was beneath the land should also be subject to expropriation?

Mr Motlala said the definition of “property” in the Constitution should distinguish between land and buildings. Land could not be built. Land should be nationalised to start afresh, which could be used to avoid conflict. Some NAFU members had been killed. White and black farmers were being killed, which NAFU condemned, and which a resolution of the land issue could help resolve. In Mozambique, land was not sold and in most African countries, arable land was not sold. In both Europe and America, arable land was also not sold. All people, black and white, were South Africans and deserved to have their dignity and their rights protected.

Dr Motshekga said NAFU should place a greater emphasis on the consequences and effects of the 1913 Land Act. After the 1913 Land Act, African people owned only 7% of the total surface area of South Africa. In 1936, African people only owned 13% of the total land in South Africa. NAFU had not placed much relevance on the 1913 Land Act. Was African land which had been dispossessed from the 1850s up to 1913 not relevant for current purposes? Was the current Parliamentary process not sufficiently participatory for all people, and therefore would an agricultural CODESA also be required?

Mr Motlala said NAFU considered land to be a national demand. It was aware of property ownership trends. The proposed agricultural CODESA would help open up the debate on the way forward and how to address the legacy of South African history. It would allow for white and black people to live in harmony with one another, as envisaged by former President Nelson Mandela.

In Transformation Initiative (ITI)

Dr Mohammed Bhabha, Director, In Transformation Initiative (ITI) said ITI was an NGO that had been established by himself, Mr Roelf Meyer, Mr Ebrahim Ebrahim and Mr Ivor Jenkins. It worked to promote social cohesion and democracy, and resolve social issues in South Africa and abroad.

ITI had engaged with farmers, members of the ruling party and government Ministers over the last few years. Those consultations had attempted to find common ground between those different groups in order to formulate a mutually agreed upon vision on how best to promote land reform in South Africa.

Four observations had emerged from the consultations:

Firstly, the majority of farmers were not opposed to expropriation and were also not, by and large, opposed to expropriation without compensation. Most farmers recognised the importance of facilitating land reform, even through the mechanism of expropriation without compensation.

Secondly, most parties agreed that changing the current regulatory environment through an amendment to the Constitution may not be best approach to facilitate land reform. Many black farmers did not receive proper financial and other support from the government. There was a collective disappointment that the current government machinery was not receptive to the needs of black and white farmers.

Thirdly, there was sufficient goodwill within the country to facilitate land reform. A number of established farmers had reached out to emerging farmers and had found innovative and creative solutions to facilitate access to the agricultural industry. In the Western Cape, 50 farmers had given a large amount of farmland -- to the total value of R1.2 billion -- free of charge to previously disadvantaged black farmers. Those farmers had also been assisted in a mutually cooperative way. Other farmers had given 51% of their land to their employees, which had also resulted in an increase in productivity.
 
Fourthly, it was important not to conflate the concepts of restitution and redistribution. Restitution may harm the very people the government was attempting to assist. Restitution required a person to prove they had a right to a particular piece of land. It may prejudice people to require them to prove they had a legal right or entitlement to a particular piece of land or property. The focus on restitution may also clog the system which aimed to facilitate land reform. It was necessary to find solutions which did not focus on restitution alone.

Mr Malcolm Ferguson, ITI, said Section 25 of the Constitution contained a clear mandate for the transformation of property rights. The mandate of Section 25 required property relations to be transformed to achieve the imperatives of equity, fairness and justice in ensuring access to land. Section 25 provided for circumstances where it would be just and equitable to expropriate property without compensation. There was a broad consensus that Section 25 already allowed for expropriation without compensation. The state, however, had not tested Section 25 as it currently stands, to expropriate property without compensation. This begged the question as to whether a constitutional amendment to Section 25 was required at all. It was the view of the In Transformation Initiative that it was not necessary to amend the Constitution.

A number of resolutions had been taken at the ANC conference in 2017 to expropriate property without compensation. This had led to intense and emotional debate on this issue. Those debates had shown that skewed patterns of land ownership in South Africa were the most enduring symbol of the second class status assigned to black South Africans as a result of colonialism and apartheid. The fact that skewed property ownership persisted almost a generation after the advent of democracy in South Africa, was widely assigned to government failures. The blame, however, did not rest with government alone and all stakeholders must bear a share of the blame for the fact that land ownership had not been transformed.

Practical solutions had to be created to facilitate redress which was just and equitable for all South Africans. If the Constitution was to be changed, then any amendment must clearly State under what circumstances expropriation without compensation would be permissible. Any amendment must also facilitate public involvement, and must be subject to judicial scrutiny. A suite of legislation must be enacted which defines a comprehensive national policy, which clearly stipulates when land could be expropriated without compensation, to facilitate land and agrarian reform. A national land and agrarian trust must be established to deal with the 3 294 farms that were current underutilised, and which were owned by the state. The State was currently the largest land owner in the country. Those farms had been purchased by the State at great expense. There were people who had legitimate claims to the property which had been purchased by the state. The fact that that land had not been redistributed to the claimants was a crying shame. Up to 11% of the total land in South Africa formed part of those state-owned farms. Communal land constituted around 11-13% of the total land in South Africa.

Mr Ferguson said Mr Motlala was correct in saying that a number of black farmers had been disadvantaged by the changes in the current constitutional dispensation which began in the early 1990s. Public-private partnerships (PPPs) must be created between government and the agricultural sector. An agricultural development agency should be established to develop the skills and capacity of black farmers. Such an agency could help formulate a coherent policy, setting out how best to facilitate land transformation and agrarian reform in the country. Such an organisation could overcome the limitations of the commercial banking sector in facilitating transformation. A secondary funding model could be established which accepts crops and other goods as a form of security, where farmers lack security of tenure.

Discussion
 
Mr Filtane said ITI had made it clear they believed expropriation without compensation was already permitted under Section 25 of the Constitution. Did it appreciate how complex the process of expropriation under Section 25 of the Constitution already was? This was the reason, in his view, why no cases of expropriation without compensation had occurred in the past 24 years. The process begins with a valuation of the property in question, and continues with an asking price offered by the person who owns the land. If there was no agreement on the amount of compensation, then the matter would end up in court. Currently, the whole judicial system in South Africa was not transformed. If a white person owned property, then they would end in a court which was headed by a white person. The lack of transformation in the judiciary was part of the problem. A second problem was that the banking sector was also not transformed, which also posed an obstacle to land reform.

Mr Koornhof said Mr Filtane was out of order. Members were only permitted to ask a single question.

Mr Filtane asked how the government could be expected to meaningfully implement land reform given the two fundamental problems he had alluded to -- a lack of judicial transformation and a lack of transformation in the commercial banking sector?

Dr Bhabha responded that Section 25 of the Constitution allowed for legislation to be enacted which could be used to facilitate land reform. The legislative framework was only part of the problem. Another fundamental problem was the lack of access to markets. The current State machinery did not create an environment which could properly and meaningfully assist farmers to gain access to markets. Changing the Constitution would not address the poor State machinery which did not properly facilitate access to markets. This was a multi-faceted problem, and an amendment to Section 25 of the Constitution would not deal with those other problems which were currently stifling land reform.

Mr Filtane asked a follow up question. If Section 25 allowed for legislation to be enacted which could facilitate expropriation without compensation, then what would that legislation look like? Practically, would that legislation itself not require the Constitution to be amended?

Dr Bhabha responded that ITI holds the view that Section 25 of the Constitution already allowed for legislation to be enacted which would address the concerns raised by Mr Skosana.

Ms Mampuru asked how many of the children of employees who had received land from farmers were agricultural scientists? How many of the children of those emerging farmers had received bursaries to qualify as agricultural scientists?

The Chairperson disallowed the question of Ms Mampuru on the basis it was not related to the subject matter.

Ms Mokwele said ITI had said white farmers had assisted their employees to enter the agricultural industry. Did this mean land transformation must be left in the hands of white farmers? Did this also mean the current process should be concerned with ensuring black people were the owners of farms and land?

Dr Bhabha said the ITI’s position was not that land reform and transformation should be left in the hands of private farm owners alone. Rather, their point was simply that many farmers had, on their own initiative, engaged in a process to facilitate land reform and capacitate black farmers. There was a surprising degree of common goodwill which already existed in the farming and agricultural sector on these issues.

Ms Mokwele asked what the membership demographics of ITI were. Were the majority of their members white or black?

The Chairperson disallowed Ms Mowkele’s question. The question was irrelevant and was not related to the subject matter of the meeting.

Mr N Paulsen (EFF) challenged the Chairperson’s ruling. Ms Mowkele’s question was highly relevant. The colour of one’s skin was directly relevant to the way one felt about land expropriation. In Transformation Initiative should answer the question about their racial demographics. The Chairperson himself was out of order by disallowing that question.

The Chairperson responded that Mr Paulsen must not interrupt the smooth functioning of the Committee’s proceedings. The Committee was debating a potential amendment to Section 25 of the Constitution. The racial demographics of organisations were not relevant to that issue. The question had to be disallowed on the basis that it was irrelevant.

Dr Motshekga asked whether ITI’s reference to communal land referred to land which previously fell within the former homeland areas? That land was barren and was already held in trust. That land was administered by traditional leaders on behalf of their constituents. Would it not be better to focus on the 87% of land which was not currently part of native reserves?

Mr Ferguson said ITI’s focus on this issue was on land which fell outside of the former native reserves as established by the 1913 and 1936 Land Acts. However, there were successful farming enterprises which had been established in the former homelands, such as a recent initiative in the Transkei. 2 100 women had been empowered under that initiative and there was a 60:40 ownership structure of the farming enterprise which farmed 10 000 hectares of land. This showedthere were good models of empowerment and farming which existed between local communities and corporate enterprises, even within barren areas located in the former homelands.

Mr Swart asked what ITI made of the fact the Constitutional Court, which was transformed, had not ruled on the parameters of Section 25(3) as balanced against Section 25(8)? The Constitutional Court should first give guidance on what the parameters of Section 25 of the Constitution were before a potential constitutional amendment was considered.

Mr Ferguson replied the Constitutional Court could rule only on matters which had been brought before it. The fact that the State had properly exercised its powers to facilitate land reform, meant no litigation had reached the Constitutional Court which would allow it to rule on the precise parameters of Section 25 of the Constitution. This begged the question of what the Constitutional Court would actually decide, if such a matter were to come before it.

Dr Bhabha added that he personally – and the ITI – agreed with Mr Swart’s position. The Constitutional Court should make a ruling on the parameters of Section 25 of the Constitution, before an amendment to Section 25 should be considered necessary.

Ms Mathapo said it was a pity Mr Roelf Meyer could not be present to give his views on the potential amendment of Section 25 of the Constitution. ITI did not appear to be opposed to expropriation per se, or expropriation without compensation.

Dr Bhabha clarified that ITI was not opposed to expropriation, or expropriation without compensation. In his view, the issue was rather whether Section 25 of the Constitution as it currently stands allows for expropriation without compensation. ITI believes Section 25 already creates sufficient room for property to be expropriated without compensation.

Mr Maila said ITI had said 11% of South Africa’s land was owned by the State. 13% was communal land. In total that amounted to 24% of South Africa’s total land. Was ITI proposing that agrarian reforms should begin with that 24%? Would expropriation without compensation then target the remaining 76%?

Dr Bhabha responded that the reference to that 24% figure had been made to demonstrate the lack of emphasis and action in the State administration to facilitate land reform of land which the State already owned. That land was clogged up in the system and was currently unproductive. It was essential to be cost effective and to also make use of that land to facilitate land reform.

Mr Paulsen said Dr Bhabha had stated one problem in facilitating land reform was that emerging farmers lacked access to markets. What was ITI’s view on how expropriation without compensation would affect access to markets for emerging farmers? ITI should engage with the Department of Agriculture, Fisheries and Forestries (DAFF), as many of the issues raised by ITI should also be considered by the DAFF. Had ITI taken up the issue of access to markets with other government Departments? Expropriation without compensation would impact not only on agricultural land. It would impact on all property. The decision to expropriate land without compensation had not been taken at Gallagher Estate. The decision to expropriate land without compensation had been taken on 26 July 2013 in Soweto, at the first national assembly of the EFF.

Dr Bhabha said a fundamental issue which prevented black farmers from gaining access to markets arose from the fact that they lacked access to capital, were under-resourced and also did not receive sufficient support from the State. If black farmers were to gain access to markets, legislative reform must be enacted. To redistribute property without corresponding legislative support would mean the entire process would be a futile exercise. It would be a paper tiger. Without access to capital and proper support, existing farmers were doomed to fail. No support structures for emerging farmers existed at present. A proper policy needed to be formulated which would provide emerging farmers with support to gain access to markets.

Mr Paulsen reiterated that he did not understand ITI’s position. How did land expropriation without compensation affect access to markets for black farmers? Would ITI’s concerns in that respect not be better addressed by engaging with departments or stakeholders?

Mr Ferguson replied that there was a fundamental linkage between ensuring access to markets and expropriation without compensation. If people were awarded property as part of a process of restitution or redistribution, but did not also receive support to properly capacitate them to ensure they could access agricultural markets, then those farmers would be doomed to fail. Redistribution of land could not be seen in isolation from those other issues. Farmers would also require access to capital and training to ensure they could also access markets.

Ms Carter said if the ITI believed that Section 25 of the Constitution was not a barrier to ensuring a just and equitable distribution of land ownership, what then was the barrier to ensuring just and equitable patterns of land ownership?

Mr Ferguson replied the problem was that land restitution had not enjoyed the national priority it should have since the final Constitution had been enacted 22 years ago. Dispossession of land, together with unequal access to land, was a trauma which had been inflicted upon South African society. Land redress was a matter which needed to be dealt as a matter of urgency. Both government and the agricultural sector must equally bear the responsibility to address patterns of unequal land ownership and access to land. Parliament should be congratulated on taking steps to address this issue, which was a matter that was vital to ensuring true reconciliation in South Africa.


South African Institute of Race Relations (IRR)

Adv Martin Brassey, Senior Counsel:Johannesburg Bar, said Dr Anthea Jeffrey, Head of Policy: IRR, had prepared the Institute’s submissions. However, she was ill and thus unable to attend, and he had agreed to take her place in making IRR’s oral submissions.

The IRR’s submissions sought to achieve two objectives. The first was to deal with the facts of expropriation and land ownership on the ground. This required examining how current patterns of property ownership occurred, what conflict the current distribution had given rise to, and to examine what the current concerns of people were regarding land distribution and restitution. A failure to properly locate the land expropriation debate within its correct context, meant the true issues could not be focused upon in determining the way forward.

The second was to outline the consequences for South Africa if protections afforded to private property rights were eroded. The IRR had the view that if private property rights were eroded, the economy would suffer severe adverse consequences. The majority of South Africans would suffer as a result. In particular, the poor black majority would be affected the most by any economic downturn caused by the erosion of private property rights. Any constitutional amendment must therefore be very carefully considered with all of this in mind.

There were two views on expropriation without compensation. The first view was that Section 25 of the Constitution already allowed for expropriation without compensation and therefore no amendment was necessary. The second view was that Section 25 required amending to properly clarify when it would be just and equitable to expropriate property without compensation. The foundational principle of Section 25 of the Constitution was fairness. Fairness meant an individual should not bear the consequences of societal improvement in circumstances where it would not be fair for that individual to bear those consequences. The notion that one could selectively expropriate an individual’s farm and not pay them compensation, would undermine the notion of fairness. A central principle of fairness and property rights was that a person should not be deprived of their property without receiving compensation for that sacrifice.

To give a person less compensation for property expropriated from them – or to give them no compensation – would significantly erode and undermine property rights. This would seriously damage the South African economy and human rights as a whole. To target white people on the basis of their race would not be accepted by the Constitutional Court as a constitutionally legitimate mechanism to facilitate land redistribution.

Another possibility that had been raised was the complete nationalisation of land. Complete nationalisation could take various forms, such as custodianship or State ownership. If the State was made the owner of all nationalised land, that would be an enabling factor for corruption. In any event, both of these possibilities would completely undermine property rights. It would also undermine the societal compact which was embodied in the Constitution.

Property ownership was internationally recognised as a central feature of human rights. Section 25 allowed for redistribution and redress. The ANC government should make use of the powers Section 25 already provided to develop a proper and effective framework to allow redress to take place. The IRR believes government should use Section 25 in its current form, and explore all the mechanisms the Section provides to transform unequal patterns of property ownership in South Africa. Section 25 therefore does not require amending to enable property redress, restitution and redistribution.

In Agri SA v Minister of Minerals and Energy, the Constitutional Court had provided guidance on how Section 25 could be implemented. The Agri SA judgment had been about mineral rights. The majority of the Court had accepted there could be State custodianship of property. The Court had said this could be done through legislation which Section 25 in its current form already permitteds. The Court did, however, say the interests and rights of all parties must be equally considered in implementing property redress. This was part of the social compact contained in the Constitution. If the State used the principle of custodianship, then the State also needed to consider questions such as who would use and exploit the property of which the State was the custodian.

It was stressed IRR opposed any amendment of Section 25 of the Constitution. Rather, the State should fully exploit the redress mechanisms which Section 25 of the Constitution already provided to facilitate redress and redistribution of property. The current policies which regulated land redistribution must be re-examined and reformed to properly facilitate land reform. The Land Bank had failed to meet its mandate. It was necessary to properly use Section 25 to ensure South Africa was a more cohesive and prosperous society for all who live in it. Amending Section 25 would not achieve a prosperous society and economy. The rand and the economy had already suffered a downturn as a result of the uncertainty around the future of property rights in South Africa.

Discussion
Dr Motshekga said the IRR focused too much on human rights and not on people’s rights. South Africa’s colonial and apartheid past meant there was a need to focus on the rights of people as a community, and not only the human rights of individuals alone. Fairness also required that people’s rights were considered to redress the unfairness of the past. The IRR’s suggestion that the expropriation process would target white people was misleading. The current process did not seek to target white people. It sought to redress the fundamental unfairness which the majority of people had suffered. The process did not seek to punish or unfairly target any section of the population. The architects of the Constitution had provided for a process where the Constitution could be reviewed and amended. The current process was being undertaken in accordance with the spirit and the letter of the Constitution itself. It therefore should not, and could not, be said the current process sought to target and punish any section of the population.

Adv Brassy replied that he appreciated Dr Mokshekga’s comments.

Ms Mathapo said one of the IRR’s criticisms of the current process was that it had been conducted in too short a time period. The Committee had originally given all presenters 30 days to make their submissions. A request for an extension had been sought and that request had been granted. All presenters were then given an additional 15 days. The IRR had also complained that the decision to amend the Constitution had already been taken, and that the Committee was not open to persuasion. That complaint was without merit, as the Committee had taken no firm decision to amend the Constitution. Each Committee Member had his/her own view on the potential amendment of Section 25 of the Constitution. She expressed annoyance with the suggestion that the Committee had already taken a firm decision on this issue, and the IRR should amend their position to reflect that fact. The ANC President, in the same way as the leader of any other political party, had a right to express the views of his political party.

The Chairperson said Ms Mathapo was out of order. He appeared to disallow the questions and views Ms Mathapo had expressed.

Mr Maila said the presentation was like a scarecrow. The IRR had told the Committee they should never do anything to facilitate land reform because that would make people poor. People were already poor. Had the IRR done anything to assist the government in faciliting land reform?

The Chairperson said Mr Maila was also out of order. He appeared to disallow the comments and questions Mr Maila had asked.

Mr Swart said most of the discussion had focused on expropriation without compensation of land. How would expropriation without compensation affect other forms of property? What about movable property such as vehicles or intellectual property rights, given the provisions of Section 25(3)(b) of the Constitution?

Adv Brassey said Mr Swart was correct in saying the concept of property under Section 25 was not confined to land alone. The IRR had the view that logically speaking, if expropriation of land without compensation was allowed, then there was no reason why other forms of property such as intellectual property or movable property could not then equally be expropriated without compensation. From a human rights perspective, this would undermine the rights of people who had spent time and effort in acquiring movable property or developing intellectual property. This was because those forms of property would, by definition, also be subject to a potential expropriation of property without compensation.

Ms Mokwele asked Adv Brassey to explain how he viewed the issue of fairness within the context of inter-generational land dispossession? Adv Brassey had said expropriation without compensation or nationalisation would mean the black majority of South Africa would suffer. Black people were already the people who suffered the most and who also owned the least land. Black people were also the majority in the country. How could the black majority suffer if they were given access to property that would restore their dignity?

Adv Brassey replied that the IRR was unambiguously in favour of land redistribution, redress and economic empowerment. Current policies had been poorly handled and had reproduced the patterns of inequality and poverty which persisted today. The IRR believed redistribution and economic empowerment should be done according to principles of fairness. Fairness had been defined extensively in the labour law context. The highest courts of South Africa had said fairness required a proper balancing of the rights and interests of both parties, which must be equally considered. The selective targeting of people to benefit others did not meet that definition of fairness. The IRR was not opposed to expropriation to facilitate redistribution, but was opposed to expropriation without compensation because the expropriation of property without compensation was unfair on the basis it did not balance the rights and interests of both parties equally. The factors specified in Section 25 of the Constitution already gave guidance on how the balance of both parties was to be met to ensure that an expropriation was fair. Section 25 had not been tested, and unless the State tested those factors, then expropriation without compensation would open up a pandora’s box which would cause the economy to suffer.

Adv Brassey took exception to the suggestion of Ms Mokwele that he did not understand the suffering of black people. If she had any understanding of his own experiences and life work, she would not ask him that question. Since 1929, the IRR had been struggling to achieve a non-racial and democratic society in South Africa. Expropriation without compensation would severely impact the economy, which would have disastrous consequences for all South Africans, including both black and white people.

Mr Paulsen said the Chairperson should caution Adv Brassey against addressing Members of Parliament in a condescending manner.

Ms Mokwele said that in her original question, she had clearly stated the majority of South Africans were blacks. The majority of blacks were also poor. It was a fact that they had been disposed of their land. Fairness of redistribution must measured against the possession of land. How could it not be fair to allow people who were dispossessed of their land to have their land returned to them? How could it be fair to compensate someone who owned land which they had acquired because that land had been dispossessed from black people?

Adv Brassey said he had no intention of coming across as condescending in his replies. The answer to Ms Mowkele’s question was that redress could be facilitated according to a progressive system of taxation, which imposed higher taxes on the wealthy which could be used to facilitate redress and economic empowerment. Fairness would still require that expropriated property be subject to compensation. Expropriation without compensation was a red herring, because it would not necessarily ensure black people had an equitable distribution of property ownership in South Africa. Expropriation without compensation was also fundamentally contrary to the principle of fairness and could not be justified. The best approach was to redress economic exclusion through a progressive system of taxation on the wealthy.

Mr Filtane said the IRR had essentially said they were not blind to the suffering of South African people. South African land had been taken at the barrel of a gun. Where did the IRR get the idea that people should be compensated for land which was originally acquired through the barrel of a gun? The IRR claimed it was not blind to the past. How then could they hold the position that people should be compensated for the expropriation of land which was acquired through force? People did not own land today because of that past history of dispossession through force.

Adv Brassey said Mr Filtane’s opinion did a disservice to the history of the country and the IRR. The IRR”s written submissions clearly showed how South Africa’s history of violence and warfare had created the injustice of land distribution in South Africa. It was a natural consequence in any society that land was usually acquired through one of two ways -- either through occupying the land or through acquiring the land through force. How one dealt with the consequences of that acquisition of land later was a different question. It required careful consideration and debate between all people who were engaged in the process of governance. Human rights and the rule of law required that property of rights were protected. A failure to protect property rights – and by extension human rights – meant a country would become an international pariah. The South African population would also suffer as a result. The IRR had cited the consequences of such a policy with reference to the current situation in Venezuela. The Venezuelan situation showed what could happen to a society which engaged in a process of redistribution which was not underpinned by fairness, human rights and the rule of law.

Mr Filtane replied that black people did not owe any person an explanation for reclaiming their land. Parliament was following a constitutional process to facilitate the reclamation of land which black people had been dispossessed of. No government would ever have enough money to buy back their own land. People who owned land kept pushing up the price for compensation. Ultimately, if the compensation route were followed, then the government would have to spend all its money to buy back the land which had originally been stolen through the barrel of a gun.

Adv Brassey said the IRR had carefully examined all of those issues in its written submissions. Government had spent a very small amount of money on facilitating land reform.

Mr Filtane attempted to disrupt Adv Brassey. The Chairperson intervened. The Chairperson said the follow up question of Mr Skosana was out of order and disallowed. Adv Brassey was requested not to respond to the subsequent questions.

Mr Paulsen said the EFF’s position was that the State should become the custodian of the land once all land had been nationalised. How would expropriation without compensation further impoverish landless people? Was the IRR financed by AfriForum, which the Institute had recently removed from their website?

The Chairperson said the second question about Afriforum was out of order and could not be allowed. He requested Adv Brassey to respond only to the first question.

Adv Brassey said he was grateful to Mr Paulsen for stating the EFF’s policy. The consequences of that policy appeared in the IRR’s written submissions. Ordinary people would be made poorer as a result.

Ms Carter asked what the consequences would be for all South Africans if property rights were eroded? If property rights were eroded, would that not also violate the UN’s Universal Declaration of Human Rights?

The Chairperson said Ms Carter was asking for a legal opinion, which could not be allowed. Her question was therefore out of order.

Mr Mpumlwana said he disappointed in the IRR’s presentation. The IRR had not provided any solutions or suggestions on the way forward. All the IRR had done was criticise the ANC government. People were already suffering, especially on farms. These were also people which the government could not presently assist to alleviate their suffering. How would the millions of people on farms suffer more than they were already suffering if expropriation without compensation were to take place?

The Chairperson said Mr Mpumlwana’s question was out of order and the time to engage with IRR had expired.


South African Institute of Black Property Practitioners (SAIBPP)

The SAIBPP said it operated in the formal and informal property market. Property redistribution must be underpinned by economic growth and improved household welfare and food production. This was the central premise on which it based its presentation. Land expropriation must be viewed within the context of reciprocal rights which land expropriation attracted. Failing to acknowledge that reciprocity would not achieve the economic empowerment land expropriation aimed to achieve.

Redress in South Africa also dealt with race. Redress deals with the dispossession of land from black people. The presentation aimed to advance two fundamental points. First, to state the SAIBPP’s position regarding the amendment of Section 25 of the Constitution as it relates to expropriation without compensation to facilitate land reform and redress. Second, to advance the idea that expropriation of land without recognising the reciprocal rights such expropriation attracts would not advance the redress of property ownership which needed to be achieved.

SAIBPP believed Section 25 of the Constitution gave the government enough powers to create a legislative framework to expropriate land to facilitate land redistribution. Section 25 required government to facilitate restitution and the redistribution of land. To facilitate redress and redistribution, government had to put in place legislation which aimed to achieve those objectives. That legislation would also require compensation to be paid for expropriation. Section 25 did not need amending in so far as it dealt with land reform. Issues around the process and manner of expropriation required further scrutiny. Both of these issues, however, could be dealt with in more detail through the enactment of legislation which governed expropriation.

The current legislation was inadequate. In particular, it did not adequately address the manner in which redress and the transformation of land, which Section 25 required, would be regulated. Section 25 did not deal only with assets in the form of land, but covered all assets in general. Section 25 could, for instance, allow for the expropriation of a company or intellectual property, both of which were assets contemplated by Section 25. If the State enacted legislation governing the process under which those assets could be expropriated within a proper legal process, such legislation would be permissible under Section 25 of the Constitution in its current form.

The willing buyer-willing seller model was not required by the Constitution. That model was a government policy which had been given effect through legislation. Expropriation without compensation could also lawfully be given effect through legislation. Legislation should clearly set out the circumstances when expropriation without compensation would be permissible. Willing buyer-willing seller was therefore not required by Section 25. Section 25 also allowed for legislation to be enacted which could clearly set out when expropriation without compensation would be permitted. While the current Expropriation Act dealt with compensation, it did not adequately deal with the instances when expropriation without compensation would be permitted, as seen within the transformative ethos of Section 25 of the Constitution.

Even if legislation provided for expropriation without compensation, such legislation would not necessarily ensure that people enjoyed the benefits of the land. This was because property was currently governed by different pieces of legislation which may conflict with one another. Policies and legislation enacted by different spheres of government may also be in conflict. Four problems therefore needed to be addressed.

Firstly, a coherent spatial policy needed to be developed. Spatial exclusion was part of the policy of the apartheid regime. Apartheid legislation had dispossessed people of property and also prevented black people from enjoying the benefits of land ownership. Even if land was returned, the reciprocal benefits of land ownership might not follow if this issue was not also addressed.

Secondly, the process of acquiring and accessing land was too costly, cumbersome and complicated for a lay person to understand. The process needed to be simplified to address this issue.

Thirdly, the single tenure system did not properly address how to ensure black people enjoyed the benefits of land ownership. South Africa currently had a single deeds registry system. Unless land was registered in a person’s name in the deeds office, they were not considered the legal owner of that land. A system of registration needed to be established which recognised the informal right of people to property. A central administration of land – not necessarily ownership – also had to be established. Land must be centrally administered by government, which would also be the body which adjudicated all land claims, including the registration and allocation of land.

Fourthly, customary land must be also be administered according to that central government authority. This would require a classification of land tenure according to a classification of three different types of land ownership: the communal tenure system, individual title and a system which recognised current native inhabitants which was more acceptable for the majority of South Africans.

Section 156 and Section 153 of the Constitution required further examination to facilitate spatial transformation. Both sections dealt with the constitutional powers and functions assigned to municipalities. Both sections failed to mention issues of redress. When municipalities allocate land rights, they could do so without properly considering and giving effect to issues of historical redress and dispossession because neither provision expressly required dispossession and redress to be taken into account. Black people therefore often lived outside urban centres because municipalities were not constitutionally compelled to consider redress when land rights were allocated. Spatial planning was a function allocated to municipalities under the Constitution. Those two constitutional provisions therefore should be amended to expressly require municipalities to consider redress when determining spatial planning during the process of allocating land rights.

Discussion
 
Mr Koornhof said the SAIBPP had referred to the willing buyer-willing seller principle and had also referred to a “buying back” clause. What did the reference to a buying back clause refer to? In some cases, the State hands out title deeds to property which the recipients could use as a commodity. What was the opinion of SAIBPP on that issue? Should the recipient of a title deed in that case be able to treat that property in the same way as any other commodity which they owned? What would happen if the State were to transfer that title deed, subject to the condition that if the owner wanted to sell the property within a certain time period of receiving the title deed, they had to sell the property back to the State?

Mr Shivambu said the SAIBPP had been called to Parliament to give their views on a simple question. What did it make of the proposal to amend Section 25 of the Constitution to allow for expropriation of land without compensation? SAIBPP had not responded directly to the issue of amending Section 25 of the Constitution. It had also used the phrases “asset” and “property” interchangeably, which was incorrect because assets and property were not the same thing. Section 25 referred to property and not assets. SAIBPP had also referred to the fact that expropriation legislation already existed. That legislation was outdated and illegitimate as it had been enacted by the apartheid government in 1975. He stressed that the SAIBPP must clearly state what their view was on the proposed amendment of Section 25 of the Constitution to clearly provide for expropriation without compensation.

Mr Swart asked the SAIBPP if it supported private individual title deeds as opposed to the wholesale nationalisation of land administered by the State. Did the property clause in Section 25 of the Constitution not already include other forms of property besides land? Section 25(3)(b) clearly stated property was not limited to land.

Mr Filtane said he expected a clear statement of principle from the SAIBPP on whether they supported or opposed the amendment of Section 25 of the Constitution. SAIBPP had completely avoiding answering that issue directly. Their presentation had only rehashed the provisions of Section 25 of the Constitution. The presentation had been disappointing overall. It should have presented those ideas a long time ago at the Portfolio Committee on land reform. He had no questions to ask.

Mr Buthelezi said it was out of order for Mr Filtane to tell a presenter that he was disappointed with their presentation.

Mr Filtane took exception to Mr Buthelezi’s point, which he found insulting and disrespectful. Mr Filtane angrily responded that Mr Buthelezi had no right to dictate to him what he could or could not say in Parliament. Mr Buthelezi could not proceed in this manner.

Mr Buthelezi continued, and said Mr Filtane’s criticisms of the SAIBPP were unfair. The SAIBPP had clearly said restitution in its current form was not adequately achieving the objectives of redress and land reform. It was of utmost importance for the Committee to be impartial, both in fact and in perception. Committee Members could not attack presenters on the basis that their views did not align with what Members of the Committee personally wanted to hear. Presenters could not be personally attacked.

The Chairperson said Mr Buthelezi had raised valid points, but he should not usurp the role of the Chairperson. If Mr Filtane was out of order, then the Chairperson would call him to account.

Mr Buthelezi responded angrily, saying the Chairperson had in some cases acted in an inconsistent manner with respect to different Members. The Chairperson must act impartially towards all Members, who must all be equally treated. All Members must be subject to the same treatment if any of them acted in a fashion which was out of order.

The Chairperson said both Mr Buthelezi and Mr Filtane were out of order. He requested the SAIBPP to answer the questions raised.

The SAIBPP said it had dealt with the issue of Section 25 of the Constitution in extensive detail in its written submissions. Section 25 and the current legislative framework provided the State with sufficient powers to expropriate land. Section 25 and the current legislation already in force also governed compensation. Section 25 contemplated that the factors used to determine the amount and manner of compensation should be fleshed out in greater detai,l according to legislation. Section 25 and expropriation legislation already allowed the government to expropriate property without compensation in certain circumstances. The circumstances when it would be justifiable to expropriate land or property without compensation should be determined according to legislation.

The SAIBPP agreed with Mr Shivambu that the 1975 Expropriation Act was outdated. It had also submitted documentation to the Land Reform Committee, as suggested by Mr Filtane. Different pieces of legislation dealt with the integration and redistribution of land. The current legislation was not properly integrated, and in some cases even in direct conflict. Current legislation needed to be put in abeyance until the current review of Section 25 of the Constitution had been completed. The 1975 Expropriation Act was one such piece of legislation which should be placed in abeyance until the current process had been finalised. The legislative framework should be influenced and informed by the current process, and not the other way around. Once the current process had been completed, the legislation could be amended accordingly and as needed.

In response to Mr Swart, the Institute said there were many different forms of title to property. Individual title was one type. The current framework was quite costly and prohibitive. This could prejudice many black people who could not transfer property. The current process should examine this issue as well.

Responding to Mr Koornhof, it said a buy back clause essentially stated that parties should first engage in a negotiation and reach an agreement before a decision to expropriate was taken. There was no requirement in law that parties must first agree or negotiate before an expropriation could lawfully take place. It was possible to expropriate first and then to negotiate the terms of the expropriation – such as compensation – after the property in question had already been expropriated. There were cases studies which the SAIBPP included in their written submissions, to illustrate this principle.

Mr Shivambu said the SAIBPP had indicated they agreed with the current legislative framework governing expropriation. The primary Act governing expropriation was the Expropriation Act of 1975. No presentation thus far appeared to adopt the same position. Did the SAIBPP agree with the Expropriation Act of 1975?

The SAIBPP replied that expropriation consisted of two parts. First, there was the taking of property. Second, there was a compensation element. The current legislation already clearly permitted the State to expropriate property. Section 25 also clearly allowed for expropriation. What was in issue was the second element of compensation. Current legislation did not adequately address the question of compensation. Archaic legislation needed to be amended to clearly provide for how compensation was to be calculated and paid, including the circumstances when it may be permissible for the State to pay no compensation.

Mr Paulsen asked whether the SAIBPP believed government should be the custodian of all land.

The SAIBPP replied there should be a central government authority that determined the administration and ownership of land. Multiple forms of land tenure, including individual title, should be recognised. The government authority should, however, play an administrative role and not be the owner. The government authority could own public land, but individual title should also be recognised.


Black Lawyers Association (BLA)

Mr Bayethe Maswazi, Head: Policy and Legislation, BLA, said when black people were dispossessed of their land they had received no compensation. Land dispossession began long before 1913. Section 25(7) of the Constitution also limited redress for dispossession which occurred during and after 1913. That sub-section should also be examined. This dispossession had resulted in 72% of the land being owned by the white minority, and only 5% being owned by the black majority. Black women suffered the most from this unequal distribution of land.

The Constitution should be amended to allow for expropriation of land without compensation. Specific attention should be directed to Section 25(2)(b) and (c). Both of those sections require compensation for expropriation. If expropriation without compensation was undertaken, the land could be returned to the people from whom that land was dispossessed. BLA supported the amendment of Section 25 of the Constitution to allow for expropriation without compensation.

Discussion
 
Mr Swart asked whether the BLA believed expropriation without compensation should be limited to land. Should expropriation without compensation also be undertaken in respect of other forms of property? Section 25 makes it clear that property was not limited to land alone.

Mr Koornhof said the Committee had received a number of legal opinions that expropriation without compensation was already permitted by Section 25 of the Constitution in its current form. Other opinions had said that Section 25 should be amended to provide clarity as to when expropriation without compensation would be permissible. As a legal organisation, what does the BLA make of those two different opinions of Section 25 in its current form? Would the Constitutional Court accept that Section 25 already allows for expropriation without compensation?

Mr Shivambu asked what the BLA thinks of the argument that the State should be the custodian of all the land in South Africa for the purposes of redistribution.

Mr Filtane asked what the BLA’s proposal was to the amended the wording of Section 25(2) and (3) of the Constitution.

Ms Carter said the BLA agreed that land should be expropriated without compensation. Did this refer to all land? Did it refer to nationalisation? Would it also include property such as banks? Would it also include farms which had been privately purchased by black farmers?

Mr Mncwabe reiterated what had been said by Mr Koornhof. The Committee had received a number of a legal opinions to the effect that Section 25 already allowed for expropriation without compensation. What informed BLA’s legal opinion on that matter?

BLA’s response

Mr Maswazi replied that Section 25(2) and (3) of the Constitution act as barriers to land redistribution. Willing buyer-willing seller was not required by the Constitution. It was expensive for the State to pay compensation for expropriation. To remove those subsections would help speed up land reform. People had acquired land unjustly. It was not just to compensate people for land which they had acquired in an unjust manner.

The BLA did not believe that all land should be expropriated. It believes that only Section 25(2)(b) and (3) should be amended. Section 25(2)(a) – which refers to public purpose or public interest – should be retained. Where expropriation of private land would fulfil a public purpose or interest it should not be expropriated. The State should also be allowed to own public land.

The suggested wording of Section 25 was that Section 25(3) and Section 25(2)(b) should be deleted. The public purpose and public interest requirements should however be retained.


National Association of Democratic Lawyers (NADEL)

Adv Gcina Malindi, Senior Counsel: Johannesburg Bar, appeared on behalf of NADEL. She said the Preamble to the Constitution declares that South Africa belongs to all who live in it. Section 25 of the Bill of Rights entrenches ownership of property rights to those who already own property. Section 25 also provides for the mechanisms under which land reform could take place to achieve the objects of the Constitution.

Section 25 requires that any expropriation or redistribution of land take place in terms of a law of general application. For a law of general application to allow for expropriation without compensation, the Constitution itself would require amendment. NADEL believes Section 25 does not currently permit expropriation without compensation. Section 25(2)(b) poses a barrier to the power of the State to expropriate for the purposes of land reform and redistribution.

Section 25(2)(b) was peremptory and requires compensation must be paid for those affected by expropriation. The amount of compensation could be mutually agreed on or decided by a court. The amount of compensation must be just and equitable. NADEL therefore believes Section 25 does not – in its current form – permit expropriation without compensation.

There was a myth that black people were not interested in acquiring land. This was a myth which must be destroyed. The land should belong to those work it. As documented by Charles van Onselen, apartheid laws systemically deprived black people of opportunities and made it impossible for them to meaningfully acquire, own and economically exploit land. Sol Plaatjie had also documented the suffering of black people as a result of the dispossession of their land. Both sources made it clear black people wanted to acquire and exploit the benefits which land ownership provided.

The current legal structure favoured private land owners. The State was hampered in its ability to facilitate land reform and restitution. The State could not afford to buy back property to facilitate land reform. The Constitutional compromise in 1994 had resulted in the abandonment of the ideological underpinnings of the struggle against colonialism and apartheid. The return of the land and all of South Africa’s natural resources to the people was a central objective of the struggle. Instead, the rights of those who became owners through conquest and apartheid laws had been entrenched.

To foster the transformative ethos of the Constitution and create access to land for all, different systems of land tenure should be adopted. The system of tenure adopted would be different, depending on the purpose for which that land was used. Where black people privately own property, then their ownership should be converted to an appropriate form of tenure. Such forms of tenure would include private rental, customary rental, national title and aboriginal or indigenous title. National legislation should provide for the State to become the custodian and also establish an independent land commission, which would have the mandate of facilitating land redistribution.

Mr Ashraf Mohamed, Attorney, NADEL, said the Legislature must protect, promote, respect and fulfil the core individual aspects of property ownership which was required by Section 7(2) of the Constitution. The recognition of individual ownership must also be balanced with the social dimensions of property ownership. Section 25 of the Constitution contained an imbalance. It focused too much on the individual aspects and functions of property ownership and paid too little attention to the social functions and dimensions of property ownership. NADEL’s amendments would rectify the imbalance in Section 25 by recognising both the individual and social dimensions of property ownership.

The right to compensation should be constrained by community norms and values and the overall betterment of society according to principles of ethics and social welfare. Emphasising that social dimension would also give greater content to the meaning of what constituted a public purpose or a public interest. The requirement that an expropriation was permissible only when it took place under a law of general application, should be retained. That legislation should contain some level of flexibility. The legislation should provide that land which was unjustly acquired as a result of the apartheid policy and legislation should not receive compensation if such land were to be expropriated. The legislation should be broader, and should include property which does not fall within the current restitutionary framework.

Discussion

Dr Motshekga said NADEL had rightly raised the issue of the 1913 cut off date. Should there be a distinction between the land itself and the compensation for improvements done to the land?

Mr Swart said legal experts differed on whether Section 25 already allowed for expropriation without compensation or not. Would it not be advisable to approach the Constitutional Court on that issue, as it could definitely decide whether Section 25 allowed for expropriation without compensation in its current form? If Section 25 should be amended, then should the founding provisions of the Constitution also be amended to facilitate redistribution?

Mr Filtane said NADEL had given one of the best presentations on this issue, as it was free from bias. Did NADEL propose the reclassification of property be divided along three lines -- for social purposes, for economic needs and for public purposes?

Ms Carter asked whether the failure to facilitate land reform was because of Section 25 of the Constitution, or had it been rather a failure of implementation by the State? What about the 4.2 million hectares of land that had been lawfully purchased and was currently owned by black people? Much of that property was subject to bonds. How could the issue of bonded property be dealt with if such property were to be expropriated without compensation? Should a distinction be drawn between property and land?

Mr Koornhof asked whether NADEL would agree that a judicial review should always be provided for when property was expropriated. Was NADEL’s position that a judicial review should always be provided for when a party was aggrieved by an expropriation of their property? What did NADEL specifically mean when they referred to property that was acquired under the apartheid order? Would that include property that had been acquired in 1993?

NADEL’s response

Adv Malindi responded to Mr Swart’s question about approaching the Constitutional Court. It was not desirable that the legislative function of Parliament should be passed on to the courts for the purposes of obtaining guidance. Parliament had sufficient resources and guidance to determine how to amend the constitution in a lawful manner. Parliament could pass legislation which passed constitutional muster. Parliament had passed the buck to the Courts when the issue of the death penalty was debated. Parliament should not also pass the buck on the issue of expropriation without compensation as well. The role of the Court was rather limited to scrutinising the constitutionality of any constitutional amendment to Section 25, as well as any accompanying legislation which may be passed.

Mr Mohamed replied to Dr Motshekga, and said a legislative framework already existed governing compensation for improvements to land. That legislative framework dealt with unjustified enrichment of improvement to land. The current issue was a different one. The current issue dealt with land redistribution. This was an important distinction to keep in mind. NADEL embraced the notion of aboriginal title. Before 1913, colonial dispossession occurred, which should also be taken into account by the legislature.

He agreed with the replies of Adv Malindi to the question raised by Mr Swart. The legislature was the more appropriate body to determine the issue of expropriation without compensation. The legislature could examine the social, political and economic issues which this matter attracts. Courts were limited to dealing with cases which came before them on a case by case basis, with reference only to the facts of those cases. The founding constitutional legislation could and should remain in place, inclusive of principles such as access to courts and access to justice. The core component of Section 25, which recognises individual property rights, should be left in place. NADEL rather proposes that Section 25 be amended to elevate the social function of property ownership and redress, which would also allow the State to fulfil the socio-economic needs of South African people.

Responding to Ms Carter, he said it was well known that implementation of land reform and redress had faced a number of issues. The land reform programme had not achieved the objectives which the programme had set out to achieve. Other mechanisms needed to be unlocked to facilitate land reform in a more proactive way.

Responding to Mr Koornhof, he agreed that judicial view must be retained. Judicial review was a necessary check and balance which must be retained and respected. The legacy of apartheid, however, remained. As a result, many people had been excluded from participating in the benefits provided by the new constitutional dispensation. This must be addressed. If a person acquired property as a result of the legacy of apartheid, they should not be expected to receive compensation for an expropriation.

Mr Shivambu said NADEL’s position was clear. NADEL had proposed that Section 25 be amended to unambiguously provide for expropriation without compensation. It had also noted that other forms of property, such as minerals, were also subject to such an amendment. In what circumstances did NADEL contemplate that some form of compensation should be paid following an expropriation?

A delegate from NADEL responded to Mr Shivambu’s questions, and said no person should be afraid of expropriation. The rights, benefits and use of land could be given to people under different forms of tenure and title, such as freehold title, lease or national heritage. For example, 44% of Australian land was leased to farmers. The land was owned by the State. In the United Kingdom, 33% of agricultural land was leased, with the Crown owning the leased land. In 1997 in Mozambique, land was nationalised. No one acquired ownership of the land, but people could lease the land, and in some cases those leases could last for up to 50 years. The Mozambican currency had since been stabilised and direct foreign investment had been attracted. The Mozambique example was a relevant example, and an African example which Parliament should seriously look at and examine.


Apostolic Faith Mission (AFM)

Pastor George Mahlobo, President, and Dr Jappie La Poorta, Deputy President, gave AFM’s oral submissions. Dr Henry Weideman, General Secretary, was also in attendance on behalf of AFM.

Pastor Mahlobo said AFM was one of the oldest Pentecostal churches in South Africa, and was based on multi-culturalism and multi-racialism. It had over 1.4 million members and 1 532 congregations.. Members came from across the socio-economic spectrum and all political affiliations.

AFM believed Section 25 of the Constitution should be reviewed. Expropriation should be allowed. However, in some instances, reasonable compensation be given. A body should also be established to ensure expropriation and redistribution happened in a proper manner. 105 congregations of the AFM did not have access to land. Its members were also property owners and prospective property owners.

Section 25(4)(b) made it clear that property was not limited to land. That subsection was ambiguous. The review should make clear what constituted property within the meaning of Section 25. Section 25 of the Constitution and the Expropriation Act referred to the public interest. The definition of public interest in Section 25 was also ambiguous, and should be examined. Section 25 also mentioned 1913. AFM believed the review should examine that clause and maybe explore facilitating redress for people who were dispossessed of land before 1913.

Expropriation without compensation presented the AFM with numerous difficulties. If property was legitimately owned, then expropriating that property without compensation seemed to be inherently unfair. It would deprive a person of property which they had a right to use in various ways. South Africa had a background of conquest and dispossession. Some church property had been dispossessed in the past and not been returned to the rightful owners of that property. However, there were instances were no compensation would be permissible.

The land must be redistributed. Many AFM members did not own property or have access to land. If land was not redistributed in an equitable and fair manner, then church communities would continue to face problems. Some form of land redistribution had already happened. An audit should be conducted to determine what progress had been made thus far. It was important to consider the most neglected in South Africa society, such as farm workers. Expropriation must also be done in terms of a law of general application. It should include urban, rural and tribal land. It would not be fair to exempt tribal land from expropriation.

Dr La Poorta said that before 1994, much State land was arbitrarily removed from State control and provided to white farmers in accordance with long term leases. This was particularly so in the Western Cape. Those leases should be cancelled, and those people should have no legal redress. The willing buyer-willing seller principle had never worked. Sellers inflated the price of their land, which meant that the government did not have enough money to purchase that land. Government had made a mistake in buying land from people who had never worked the land. The land should be given to individuals who were willing and able to contribute to the economy of the country.

During the apartheid era, the government had assisted white farmers to establish farms and develop productive enterprises. The current government had failed in this respect. The current government had only given land to people, but had not empowered them with skills or money to develop land into productive enterprises.

Discussion
 
Mr Buthelezi said AFM had stated some cases would require expropriation and other cases would not require expropriation. When would expropriation be required, and when would expropriation not be required?

Dr Motshekga said some missionary societies had collaborated with colonial authorities in forcibly dispossessing people of their land. Were these missionary societies legitimate owners of land which had been acquired as a result of forcibly dispossessing people of that land? The AFM had said tribal land – which refers to communal land – should also be expropriated. Should people who formed the majority of the South African population be dispossessed of their communal land? Communal land was located in the former homelands and native reserves. That land was largely barren.

Mr Maila asked how far back the AFM believed the process of redress should go. Should it go as far back as 1650? How far should the process go back? Which properties were legitimately owned if the government went that far back? What did “legitimately owned” mean? That phrase must be demystified.

Mr Swart asked if the AFM supported the amendment to Section 25 of the Constitution. It had stated that generally speaking, it would be inherently unfair to take someone’s property without compensating them for it. What role could the church play in ensuring restorative justice and reconciliation in the land reform process and current debate?

Mr K Robertson (DA) said the AFM had mentioned the issue of a land audit. The previous land audit had been deemed inconclusive. It was no secret the current government had inherited unequal patterns of land ownership from the previous regime. Would it be a good idea for the State to release State-owned property to speed up land reform? Should an audit be conducted of State-owned land to determine how much of that land was underutilised, and what could be used to facilitate land reform and increase land ownership across all sectors of the population?

Mr Shivambu said the AFM had not addressed the central question. Should Section 25 of the Constitution be amended to allow for expropriation of land without compensation? The AFM’s submissions had a number of grey areas. Those submissions were not that helpful for the current debate, but could be more helpful on a different platform.

AFM’s response

Dr La Poorta responded to Mr Buthelezi’s question on when it would be permissible to expropriate without compensation. It was important to firstly determine how land was acquired. If land was acquired through force, then that land must be expropriated without compensation. Long term leases entered into by the apartheid government should be cancelled and the holders of those leases should not be afforded any compensation.

Responding to Mr Robertson, he said State-owned land should be made available to facilitate land redress.

Pastor Mahlobo said the history of the acquisition of the property must be examined. The history of the acquisition was a fundamentally important question. Redistribution must be done to the benefit of all people, including those people who lived on communal land. People who lived on communal land had also suffered forms of exploitation in some cases. There was ambiguity in Section 25. A consensual position must be reached to determine how far back the process of restitution should go. Some church members felt that 1913 was an unfair cut off point. However, the AFM did not have a firm view on how far back that process should go.

Responding to Mr Swart, he said the church could play a critical role in facilitating restorative justice and redress. The church itself could take the initiative and even audit its own land. Municipalities, however, did not always fully cooperate when churches wanted to redistribute their own land. AFM members should set the example in facilitating redress.

Amending Section 25 of the Constitution was fraught with a number of difficulties. Due diligence must be conducted. People who facilitate land redistribution must be representative of a broad spectrum of South African society.


Black First Land First (BLF)

Mr Andile Mngxitama, President: BLF, said he had difficulty in referring to the Members of the Committee as “honourable”, as there was nothing honourable about being landless. It was not honourable to sit next people who had stolen the land. The current process being undertaken by the Committee was the biggest political fraud since the CODESA negotiations in the 1990’s.

The BLF supported the amendment of Section 25 of the Constitution. Land in the hands of white people must be returned to the hands of black people. This included land in Orania and Stellenbosch. The land was not a commodity which was expressed in a title deed, nor should it be managed by the State. The land belonged to the people. The role of the State was limited to ensuring that the land belonged to the people. Land was not a commodity which could be traded. People must be given secure tenure, but land could not be treated as an asset which could be disposed of or traded like any other commodity.

Section 25 did not allow for expropriation without compensation. People who said Section 25 allowed for expropriation without compensation endorsed a fallacy. People who opposed land expropriation without compensation argued that Section 25 already allowed for expropriation without compensation. Four instances had arisen where this matter had already been resolved by the courts. People like Adv Tembeka Ngcukaitobi and former President Kgalema Motlanthe were lying when they said Section 25 allowed for expropriation without compensation. When Adv Ngcukaitobi sat as an acting judge in the Land Claims court, he had tried to use the logic that Section 25 already alloweds for expropriation without compensation. He had always been overturned on appeal by other courts.

White people had stolen the land of black people. There was a national consensus that the land must be returned. In 1994, the ANC had failed to resolve the land question. 35 000 white people owned about 80% of the land, and the ANC had bought only 8% of the land since 1994. The ANC policy thus far had perpetuated land theft by whites.

The BLF proposed that Section 25 of the Constitution must be completely removed, and that the following provisions should replace it:

All land held by whites in South Africa was stolen property. The new Section 25 must expressly make it clear that white people have stolen the land.
All black people have a right to own land.
The eviction of farmworkers and poor people from land must be declared illegal.
Land occupation by landless black people was lawful.

The BLF rejects the notion that there was unproductive or unused land. All land – whether it was productive or not – belonged to black people. White people in Orania had no right to the land. The BLF demands that the ANC enact these amendments before the 2019 national elections.

Expropriation without compensation means taking land from whites – who were the beneficiaries of theft – and returning the land to black people who were the victims of that left. Land in the hands of black people must be excluded from expropriation. The Ingonyama Trust must therefore be left alone. Land must be taken from only white people. Land in the hands of white people was stolen property. Parliament must also declare any activities which aimed to subvert the land reform process as an act of treason. White people had caused South Africa’s recession. White people were using economic terrorism to undermine land reform.

Mr Mngxitama reiterated his view that the current proceedings were a political fraud. Everyone knew Section 25 would not be amended until the 2019 national elections had taken place. The Committee must tell the nation the truth. The Committee was delaying the amendment of Section 25 of the Constitution.

The current process was just about getting votes for the 2019 elections. Julius Malema and Cyril Ramaphosa took instructions from Johan Rupert. The ANC and the EFF had a two-thirds majority in the National Assembly. Why were both parties then engaging in this process? If someone stole your car and you met them in the street, why should you justify why you wanted your car back? This was exactly what the current process was similar to. The current process was a farce. Once the hearings were complete the Committee would make a recommendation to Parliament. Parliament would refer the matter to another Committee. Everyone knew the current proceedings were a waste time and the Committee had no power. The current process was illegitimate. The Committee had no meaning and had no powers to actually make any law. The Constitutional Review Committee only made recommendations and had no powers. The Committee was lying to the people. The Committee must be honest. The BLF would take back the land by force, because the land belonged to them.

Discussion
 
Ms Mathapo said she appreciated Mr Mngxitama’s passion. Why had he singled out the Ingonyama Trust? There was communal land in all the former homelands.

Mr Filtane said Mr Mngxitama and BLF knew the land falling under the Ingonyama Trust actually belonged to the government. What was the point of including that land in the presentation?

Mr Carter said Mr Mngxitama was a former Member of Parliament and had sworn an oath to uphold the Constitution before. Did the BLF propose amending only Section 25 of the Constitution? What about Section 9 of the Constitution, which guarantees equality? What about the preamble which states South Africa belongs to all who live in it, united by our diversity? The BLF wanted the Constitution to be burnt.

Mr Mpumlwana said it was nice to be young. The Committee was discussing the potential amendment of Section 25 of the Constitution to allow for expropriation without compensation. Did the BLF draw a distinction between the land and the buildings which were on the land? If so, then did the definition of property in Section 25 of the Constitution need to be changed? How could that be done?

BLF’s response

Mr Mngxitama said the Ingonyama Trust had been specifically attacked. Kgalema Motlanthe’s High Level Report had specifically mentioned the Ingonyama Trust. Right wing white people had also attacked the Ingonyama Trust. If there were tenure problems existing, then tenure could be upgraded. African systems of land tenure were more protective of peoples’ rights than title deeds and other Western processes of land ownership. If there were issues with the Ingonyama Trust, then the King and Zulu people could address them. The King must be respected.

Responding to Ms Carter, Mr Mngxitama said the Constitution was, as a whole, bad for black people. Much of the suffering of black people was also because of Section 25 of the Constitution. If the issue of Section 25 was changed, then other provisions of the Constitution could change later. The Constitution was illegitimate because it was written by Roelf Meyer and Cyril Ramaphosa. The Constitution did not reflect the interests of black people. He was a proud constitutional delinquent.

Responding to Mr Mpumlwana, Mr Mngxitama said white people were scared about losing their houses. If a white person had a house which they were not using, then that house should be taken. If three white people lived in an eight-bedroom house, then that house should be sub-divided and taken. One could not have over-housing on one hand, and landlessness on the other. Houses in white suburbs should be taken. How could people have no houses in Alexandra, but people in Sandton have eight-room houses? That was unacceptable. Black people must not apologise for taking back the land. White people had not paid reparations for colonialism and apartheid. We would live in peace in terms of an agenda set by the black majority. White people who arrived in 1652 must live under the conditions set by the black majority.


Orania Movement

Mr Carel Boshoff, President, Orania Movement, said South Africa had a complex history. The question of whether land should be expropriated or not was part of that complicated history. Orania was opposed to amending Section 25 of the Constitution. That was not a static opposition, which would become clear in due course.

From an economic perspective, people were opposed to amending Section 25 of the Constitution. Orania wanted to talk to the population perspective. Section 25 formed part of a historic agreement which had been reached in 1996. The capacity to mediate historic differences was part of Section 25. However, there was an opportunity to review the nature and scope of Section 25 and to reconsider or renegotiate aspects of Section 25 of the Constitution. Reviewing Section 25 went to the foundation of the historical compromise which was embodied in Section 25.

To an extent, the Orania Movement agreed with BLF to the extent that land could not be treated as a mere commodity. When Afrikaners hear about land expropriation, it reminds them of what they have experienced – and were experiencing – in terms of cultural expropriation. Public places were being expropriated, which undermined the Afrikaner culture and identity -- places such as schools and language. The historical agreement in the Constitution could be disappointed by current developments. This would be based on expectations on what both sides of that compromise gave up in meeting an agreement with one another. It may be necessary to enter into a new historical discussion to determine the basis on which South African society should function. This could be a positive starting point to address that.

The starting point of the Orania movement was that the Afrikaner wanted to play a positive role in South African development. The Afrikaner people believe they have an inalienable right to free living space. It was not fair that Afrikaner interests must be overridden, or that new forms of injustice could now be justified. Orania had had success in developing local economic industries through adopting principles of self-determination which was provided for in the Constitution. In 1998, Mr Valli Moosa had recognised the struggle of Afrikaners for self-determination – within the framework of the Constitution and the Bill of Rights – as a legitimate pursuit. A new historical agreement could help determine the way forward on how land could be utilised and exploited for the benefit of all South African people and groups.

Discussion

Mr Mpumlwana said he was unclear as to Orania’s position. Were they saying the government should expropriate land, with the exception of Orania? Orania’s concern appeared to be a more specific one: promoting the genuine interests and concerns of the Afrikaner people. Orania should provide more specific assistance to the Committee. What would be consequences of expropriation without compensation? What would be the consequences of not expropriating without compensation to facilitate land reform? These were the types of questions and concerns Orania should speak directly to.

Mr Robertson said it was not clear what Orania’s exact position on expropriation without compensation was. Orania promoted Afrikanerism and Afrikaner self-determination. Did they also promote inclusivity in the ideal South Africa which Orania foresees?

Mr Shivambu said Orania had placed much emphasis on the historical agreement which had resulted in the 1996 Constitution. Orania had not talked at all about the historical agreement between the Afrikaners and the British in 1902 after the Anglo Boer, where the Afrikaners were defeated. Afrikaners and the British – in that 1902 agreement – had agreed to share the land of South Africa to the exclusion of black people. That agreement saw Africans and indigenous people as non-humans, who were banished to Native reserves and Bantustans. Mr Boshoff wanted to focus only on the 1996 Constitution, which solidified the dispossession of African’s land as a result of colonialism and apartheid. He did not want to talk about the effects of the 1902 agreement between the Afrikaners and the British. Was Orania advocating a retention of that 1902 agreement? Was he advocating that the majority of the people who were dispossessed of land should remain landless? Was Orania saying that Parliament must protect the current patterns of unequal land ownership? People were living like pilchards in a tin in informal settlements. People lived in these conditions because of the history of colonial dispossession and violence. Was Mr Boshoff saying Parliament must ensure this current situation remained intact and the interests of the minority were protected at the expense of ending the suffering of the majority?

Mr Filtane said some submissions made by Orania were unpalatable. Orania had said expropriation without compensation was equivalent to the expropriation of cultural space. Was Orania comfortable with the status quo, where millions of people were excluded from land ownership? Millions could not practice their culture in any meaningful way because of the limited spaces in which they lived.

Mr Buthelezi asked if Orania’s views were consistent with the way the majority of South Africans felt about this issue. How would a balance be struck to ensure the rights and interests of all South Africans were protected and respected? A willingness for reconciliation and mutual recognition would require that the land be restored. Did Orania have such a willingness?

Orania’s response

Mr Boshoff replied to Mr Buthelezi, and said Orania was categorically in favour of a settlement which mutually recognised the rights of everyone, including the recognition of living space for all South African people.

In response to Mr Shivambu, he said the historical agreements in 1902 and 1908 which resulted in the Union of South Africa had been a colonial construct of which all South Africans formed a part. There were points of agreement upon which a post-colonial discourse could be built which did not reject Afrikaner rights and interests. There was a need to find a reasonable and mutual balance of the rights of all people. It was a complex issue which expropriation without compensation in itself could not resolve. Orania did not believe that all white people were thieves. Stakeholders should not bicker about land as if it was a commodity. Land should rather be viewed as a living space where people were grounded. A relationship of mutual recognition must be cultivated. People should not be at each other’s throats, and should not use violence to obtain land. The dignity of all people, whether black or white, must be respected and protected.

Ms Mokwele said it was painful to listen to Orania’s submissions. Mr Boshoff had land, as part of the Orania community. Blacks lived nearby Orania in unbearable conditions. Mr Boshoff said he was committed to redistribution and a fair share of South Africa’s resources. Why then did the people in Orania not practice what they preached and seek to ensure that black people also enjoyed the benefits of land ownership? Did he agree that the Orania land could be equally distributed according to the black people who also lived around it?

Mr Shivambu said whites constituted around 5% of the South African population. 80% of the land was owned by whites. What was a progressive land ownership demographic for South Africa?

Mr Boshoff said he could not reduce the issue down to a simple question of mathematics and demographics. South Africa was a community of communities, of which recognition was a key part. Undermining Section 25 of the Constitution would undermine that recognition. For this reason, Orania was not in favour of an isolated change to Section 25. One could not disregard the identity of people and who they were. This was what had happened during apartheid and should not happen again today.


Afrikanerbond

Mr Jaco Schoeman, Chairperson: Afrikanerbond, said the Afrikanerbond believed the interests of all Afrikaners were inseparable from the interests of all South Africans. He stated categorically that he was not a thief and that he had not stolen land. He was also not a colonialist of a special type, and his grandfather had fought in the Anglo-Boer War, which was the biggest anti-colonial war in Africa.

All Afrikanerbond members were loyal members of the new South Africa. However, he had also benefited from apartheid because he was white. For past 15 years, the Afrikanerbond had attempted to make restitution for the legacy of apartheid. It was true that the first interaction between the ANC and the Afrikanerbond had been in 986. In the 1990s, negotiations had been held and a solemn pact had been made, now embodied in the Constitution, according to 24 Constitutional principles.

Principle 2 of the Constitution stated that everyone shall enjoy all internationally recognised human rights. This year was the 50th year of the UN Universal Declaration of Human Rights. Expropriation without compensation was contrary to established international principles of the UN Declaration, to which South Africa was a co-signatory. Article 17 of the UN Declaration stated that everyone had the right to own property either alone, or in association with another person or persons, and that no one shall be arbitrary deprived of property.
 
It was good that the government was actively pursuing policies to improve the lives of poor South Africans. However, expropriation without compensation would not achieve that intended result. The Constitution was part of an agreement to improve the lives of all South Africans. The Constitution should be amended only when all other alternatives had been exhausted. It should not be amended in the interests of expediency. While the intentions of government might be pure, it would not improve the lives of the majority of the people in the country. To adopt such a volatile position was ill advised, and we would do so at our own peril.

A workable solution must be found to the land question. If people wanted to work the land, they had to take risks. They had to work the land, not according to colour or race, but according to merit. A farmer must obtain finance and depend on banks for loans. Title deeds were necessary to secure loans, which was the unfortunate reality. Property rights were the only workable recipe for growth and development and food security in South Africa. Food security was the responsibility of all farmers, both white and black. A free market with a social conscience was the Christian vision which the Afrikanerbond proposes. A change in the Constitution was futile when political parties adhered to outdated ideologies, had hidden agendas and enact racist-based laws.

Poor governance had resulted in a number of embarrassing failures insofar as land reform was concerned. President Ramaphosa had pleaded with all South African to work together for the future of our country. Many reports in this regard were just gathering dust. Government had closed its doors and its ears. Markets and the financial climate were changing as a result, and the country was now in an economic recession. The Committee must do the right thing. Expropriation without compensation and undermining property rights could not be used as an electioneering tool. Land reform must happen. Land reform must, however, happen within the ambit and confines of the Constitution and done through an honest process. A land audit should be taken of both rural and urban land. Land owners should be treated fairly. If land was to be expropriated, then it should be expropriated subject to fair and equitable compensation.

Discussion
 
Mr Maila said he came from Limpopo. There was farm nearby where he lives. Black families had lived on that farm since time immemorial. Those families were found there. Mr Schoeman had said the land belonged to those who live on it. Did the farmworker work the land, or the farm owner? Who then owned the land?

Mr Filtane said he was aware of the various principles on which the Constitution had been based. Constitutional Principle 5 said the legal system shall ensure equality of all before the law. Section 25 was that law. Section 25 did not at this point in time give people equal rights of access to land. Mr Schoeman had decided to focus instead on entrenched rights. That principle did not address the needs of landless black people. Was the Afrikanerbond advocating a permanent denial of property rights for the landless because the current government was not doing justice to the land reform programme? Did this mean the landless majority of black people must never own property? Was Mr Schoeman really comfortable advocating that position, given that Section 25(8) clearly required property redress?

Mr Shivambu said the Afrikanerbond defined itself as a civil society organisation. It had said it was also willing to work with government to find solutions to these problems. What solutions could it offer? Should we retain the Constitution in its current form? Almost 30 years had passed, and the majority of black people were in the same conditions which pertained during apartheid. The white minority still owned the land and sold land to other white people. They also sold the workers as well. Black people on farms were suffering and were exploited. Was the Afrikanerbond saying we must retain this status quo? Was this the South Africa which the Afrikanerbond wanted to build which was built on the exploitation of black people and massive inequality?

Mr Swart said the Director General of Agriculture had pleaded with the agricultural sector two weeks previously in Bela Bela, to assist the State in taking the nation forward. How could this be taken to heart, considering a potential amendment of Section 25 of the Constitution?

Mr Pieter Vorster, Deputy Chairperson: Afrikanerbond, said they have a slightly different take on the Constitution than that held by Mr Shivambu. The Constitution did not enshrine inequality. The Afrikanerbond stands by the Constitution and the principles underpinning it. Section 25 was comprehensive in providing powers to the State to facilitate land reform. There was nothing in Section 25 which prohibited the current process from being undertaken. There was a lot of land in South Africa. The land must be audited. There was a large demand for land in urban areas. There was lots of land in the possession of the government which could be used to facilitate land reform. There was also a demand for agricultural land -- this much was clear from the land claims which had been lodged, processed and finalised. Nothing stood in the way of that process.

It was, however, important not to destroy and disturb the value that privately-owned agricultural land provided for the country. The State should not interfere with natural market forces. It was open to any person to buy houses in urban areas. For people who could not buy houses, they should be subsidised by means of interest free loans and other forms of assistance from the government. The State should add value to the economy and not destroy the economy. There was no need to amend the Constitution. Section 25 was clear, and the economic value of land should not be destroyed in the process.

Mr Schoeman said he was excited about what had happened recently in Bela Bela. Those engagements had represented a change in attitude. However, that engagement was only the beginning of the process. Everyone had to link hands together on the journey, when the end destination was still far away. It was difficulty to walk the line if one did not know where the end was. Overall however, the Afrikanerbond was excited that the Bela Bela engagement signified the beginning of a process which could result in the end destination being identified.

Responding to Mr Mailia, Mr Schoeman said the question of who worked the land was a simple one. Working the land was not simply a matter of getting on a tractor and ploughing the land. Working the land required investment and risks, such as getting a bond. If people did not take those risks, then the land could not become workable. People who worked on the land as farm workers also worked the land. Both parties worked the land. Working the land had a much deeper meaning than simply physically working on and farming the land itself. The Freedom Charter said that the land belongs to all those who live in it and who work the land. The Freedom Charter was drafted 50 years ago, and new dimensions had since come forth. The concept of who worked the land had also changed and therefore one must also consider those people who had taken financial and other risks to develop the land, and who also in their own way, work the land.

Mr Maila indicated his dissatisfaction with Mr Schoeman’s response. Mr Schoeman had said he was a beneficiary of apartheid as a white man. What responsibility was Mr Schoeman talking about when he said that he had a duty to redress the atrocities of the past?

The Chairperson said Mr Schoeman had clarified his response, that the owner of the land also worked the land.

Mr Mpumlwana said Mr Schoeman appeared to be saying the status quo must be protected. The Committee was attempting to resolve historical problems. These problems were not necessarily caused by Mr Schoeman personally, but those problems existed and needed to be addressed. The government could not assist the large amount of poor people who lived on farms. They were permanent slaves. People lived in shacks and in poverty. The status quo was unjust, and needed to be addressed in some way. It was not helpful to say the economy would suffer and market forces must prevail.

The Chairperson said Mr Mpumlwana was making pleas and attempting to persuade the Afrikanerbond to alter their positions. Those pleas were out of order and did not belong in the current forum.

Ms Carter said Afrikanerbond had stated property rights must be extended to black owners and access to property must also be expanded. Could it expand on what that meant? If the problem lay in the policy framework, not the Constitution, then would it be fair to say that the willing buyer-willing seller policy was one of the policy failures?

Mr Robertson said the State kept changing the rules of the game. The Afrikanerbond had made an effort to appear before the Committee to give their views on this matter. What could enhance both access to property and protect property ownership under the current Constitutional framework? What needed to happen to achieve both of those objectives?

Ms Mokwele said the presentation was concerning. Mr Schoeman had said Parliament should not tamper with the space of Afrikaners on the basis that the economy would suffer. This was because the Afrikanerbond were only the people who benefited from the economy. In the mind of Mr Schoeman, the person who drove the tractor was not intelligent enough to think for himself. He believed that only white people were intelligent enough to work the land. Black people did not have land, houses or the food which they produced with their own hands.

The Chairperson said Ms Mokwele was completely out of order and had asked no clarity seeking questions.

Mr Schoeman said while Ms Mowkele’s question had been ruled out of order, it should be responded to. Driving a tractor was a very technical and advanced activity. One must be extremely intelligent to drive even a basic tractor.

Mr Vorster said it was completely untrue that the Afrikanerbond was proposing that only the property interests of white people should be protected at the expense of the black majority and land reform. The Afrikanerbond promoted the protection of property rights for all people in South Africa. The Bela Bela conference had focused specifically on agriculture, which they fully supported. The Afrikanerbond also supported other initiatives. They wanted more African entrepreneurs to become involved in agriculture. This could help South Africa to prosper economically and create jobs. Private property and title deeds should, however, be protected. Title deeds should be considered being granted on communal land. All land should be used to the benefit of all South Africans. There were various levels of participation in agriculture. It was not true that farm labourers lived in poverty and were suffering. Farm labourers lived in very good housing and were well looked after.

Mr Shivambu interjected, saying the Afrikanerbond must not lie to the Committee and say farm workers were well looked after and lived good lives.

The Chairperson disallowed Mr Shivambu’s interjections. That was the view of the Afrikanerbond, which they were free to express. Mr Shivambu was out of order.

Mr Vorster continued that it was important not to become carried away with one’s own argument. One must be open to hearing divergent views. He personally was a farmer and had invested in purchasing land after 1994. Thousands of farmers, both black and white, had equally taken a risk in purchasing farms. Property rights should not be watered down. This would have a ripple effect throughout the economy. Radical views which had been expressed in the last few months on this issue had had a negative effect on investor confidence. The Afrikanerbond respected all people and would actively engage with any person or organisation. All people were South Africans who had South Africa’s best interests at heart.


Human Economy Programme: University of Pretoria
Dr Marc Wegerif, Human Economy Programme, University of Pretoria, said he had worked on land rights and related issues for the past 24 years. The decision to review Section 25 of the Constitution represented an exciting opportunity to achieve the ideals of the Constitution and give effect to the Constitution’s preamble, which recognised the injustices of South Africa’s past. This could provide an opportunity to ensure South Africa did indeed belong to all who live in it. The Constitution was the supreme law. The Constitution also sent a clear message about the values of the nation to all citizens, civil servants and politicians.

Dr Wegerif said he would focus on five suggestions:

The creation of a constitutionally protected and defined social and ecological function for all land in South Africa.
Creating a legal space where the State and landless South Africans could acquire land without paying compensation under certain circumstances.
Creating social responsibilities which could advance the land rights of vulnerable groups, especially women.
Creating strong rights to property which all people, especially poor people, could defend against arbitrary State action.
The need for a wider transformation of the food and agricultural sector to create an enabling environment, especially small-scale farmers, to succeed on the land.

Land, and the related natural resources linked to it, were assets for the South African nation. This should be clearly articulated. One should clearly set out the duties and responsibilities which were owed to South Africa’s natural resources. One could draw guidance in this respect from the constitutions of countries such as Brazil. This would set a different tone and legal framing to the current understanding of property. Article 186 of Chapter 3 of the Brazilian constitution declares a social function for rural land. That article requires rural land be adequately used in a manner that respects the environment, respects labour laws and benefits both owners and labourers. South Africa needs to discuss the social function of land -- all land, whether it is rural, urban or State-owned. Issues of production and labour need to be discussed, as well as the need to address historical injustices. The cultural and spiritual importance of land also needs to be mentioned. A uniquely South African definition of the social and ecological function of land needs to be formulated.

The failure to use land for its social function would be a justifiable reason to expropriate the land. The social function of land would also help determine who that land should go to – and for what purpose - once expropriated. Certain Articles in the Brazilian Constitution give the State the power to expropriate land where it was not be used for its social function. It also allowed for that land to be transferred to landless people, who were defined as people who did not own any other property. The land was then transferred to those people for a five-year period, who could make productive use of up to 50 hectares of rural land. This created a legal space for people to lawfully occupy and use land. This was vital, as the State could not be solely relied upon to use its powers to act in the interests of landless people. Such occupations had been vital to the success of movements such as the Landless Rural Workers Movement (MST) in the Brazilian context. MST had settled thousands of families on close to a million hectares of rural land in Brazil which was previously unused or underutilised.

Similar provisions should be placed in the South African Constitution. Such provisions would affirm that land was a national resource which fulfilled a vital social function for the people who work it. Such provisions should also require that the people involved must be landless to benefit from those redistribution programmes, and the amount of land which could be transferred should also be limited. This would prevent the risk of abuse and elite capture. There must a requirement that people who owned the land must use land for a social function if they wished to retain it. This would encourage land utilisation.

In certain circumstances, it would make no sense to pay for expropriated land. However, there were other circumstances were it would be totally unreasonable to refuse any compensation. A formula needed to be created to determine when compensation should or should not be paid. Where compensation must be paid, it should be fair compensation. Section 25(3) of the Constitution provides a good starting to point to determine what would constitute fair compensation. One could add the additional factor to Section 25(3) which required a consideration of whether the current owner of the land was using the land in such a manner that the land fulfilled its social function.

Section 25 should be amended to provide explicitly for expropriation without compensation. Similar provisions in the Brazilian Constitution had not led to global anarchy, nor had such provisions prevented Brazil from becoming a global agricultural powerhouse.

A grave concern in many countries, including South Africa, was the abuse of the process of land reform to benefit elites. This undermined the potential of land reform to bring about greater equity and to create an opportunity for the majority and the neediest in society. Provisions in the Brazilian Constitution favour small scale land owners over large scale land owners. For example, Clause XXVI prevents the attachment of a small rural property for the recovery debts which were incurred for productive purposes. The Constitution could and should be used to favour vulnerable groups to ensure a more equitable society and more productive patterns of agriculture.

Women around the world face discrimination and prejudice in securing access to land. Section 25 in its current form was gender blind. Other provisions of the Constitution, however, do contain a clear prohibition on discrimination against women. Section 25, however, contained no clear constitutional obligation to overcome deeply rooted gender inequalities which exist in property relations. At a minimum, Section 25 should expressly require the enactment of legislation which aimed to enhance women’s access to land, to advance equitable gender-based land ownership. Such a provision could read similarly to Section 25(6), which deals with security of tenure. Gender data also needs to be gathered so that current patterns of land ownership along gender lines could be properly determined.

To give black South Africans land without any security of tenure would defeat the purpose of reforming land rights in South Africa. This could also lead to any gains made becoming unravelled. It was necessary to keep a long-term view in mind when considering the amendment of the Constitution. The Constitution should not be amended frequently. One had no idea who could be ruling the country in 10-15 years’ time. It was necessary to ensure that any successive governments could not use any additional powers to attack the land rights of poor people or black South Africans.

Around the world, it was not rich white people who were losing land. Poor and indigenous people were the one’s who suffered the most from land dispossession. This dispossession often occurred without compensation. Massive and sustained corporate demand for natural resources was the context in which black and indigenous poor people were being dispossessed of their land globally. South Africa was not exempt from these global trends. This had occurred in the Xolobeni community, which was trying to protect to protect its land from global mining companies and the government allies of those companies. The creation of a social and ecological function for land which clearly sets out the purposes for which land could, and could not, be used would help to prevent people from been dispossessed of land in this manner.

Land seizure and compensation decisions must remain subject to judicial review by the courts. It must also be ensured that the poor and dispossessed could also obtain a fair hearing and legal representation in such proceedings. Long term security should be protected. At the same time, it was necessary to balance long term security with ensuring a far-reaching reform programme of both land and property rights.

The South African food and agricultural sector remained highly concentrated within the hands of a few – mostly white – hands. Ownership of food and processing capacity was concentrated amongst a few large corporations. This made it extremely hard for new and small-scale farmers to break into the market and succeed. These difficulties arose, regardless of the skill and commitment levels of those small-scale farmers. If these barriers of access to markets were not addressed, the land and the agricultural reform programme would be doomed to fail. President Ramaphosa had often put the issue of enhancing food and agricultural security at the centre of the debate around land reform. Section 25 should have an additional Section inserted which creates a positive obligation on the State to create an enabling environment for land reform beneficiaries to succeed in the areas of food and agricultural production. Brazil had a similar provision in its own Constitution. This could be formulated in a similar way to Section 25(5) of the Constitution, which provides for the enactment of legislation which had the purpose of enabling citizens to gain access to land. The need to enhance food and agricultural production could not be used as a means to block wide reaching reforms of land property relations. Rather, a wide ranging and holistic commitment was needed to address the domination of the market by a few large corporate entities.

Discussion

Mr Koornhof asked if Dr Wegerif had more information on other Constitutions to which he had referred, and if he could email that information to the Committee.

Mr Shivambu said he was unsure as to whether Dr Wegerif supported the amendment of Section 25 of the Constitution to provide expropriation without compensation. Much of what he had suggested could be fleshed out in policy and legislation. Did he support the EFF’s position that the State should become the custodian of all the land in South Africa?

Mr Robertson asked if Dr Wegerif believed individual property rights should be maintained or not? Would policies around protecting emerging farmers not fall under industrial policy in terms of policies such as protectionism, for example? Was it really necessary to amend the Constitution to provide for such policies?

Mr Filtane asked if he was correct in saying Dr Wegerif was in favour of the amendment of Section 25(3) of the Constitution in particular. Did he agree that the largest problem with Section 25(3) was the reference to the market value of the land? This was in the sense that the market value was determined by internal factors, such as the type of commodity produced on that land, and by external factors, such as the need for those commodities in the outside world. Did he agree that the external factors strongly inhibited the ability of the State to acquire such land through expropriation?

Mr Swart said the Brazilian model had taken place in conjunction with extensive programmes of social upliftment to address high levels of poverty. The central issues appeared to be ones of poverty and inequality. Did Dr Wegerif agree that the central issue in respect of this whole process was really about high levels of poverty?

Human Economy Programme’s response

Dr Wegerif said he would be happy to share more information. In his original written submissions, he had annexed the relevant provisions of the Brazilian Constitution.

The concept of a social function of land had been first developed and articulated in 1911. The social function of land had been incorporated in a number of constitutions in a range of different countries. Academic and other work had examined the social function of land, which he would be happy to share with the Committee.

In response to Mr Shivambu, Dr Wegerif said he did support an amendment to the Constitution. He also supported the notion that the State should be able to expropriate without compensation. This should be made clear and explicit in the Constitution. However, he aimed to go beyond the narrow question of expropriation without compensation alone. There were a number of things one should be mindful of. Why not also expressly amend the Constitution to also ensure gender equitable outcomes in property relations? A failure to do so could actually entrench gender divisions. Why not also the address the issue of access to markets, and the need to support new and emerging black farmers? Many emerging black farmers had been set up to fail. It was also necessary to ensure that black farmers had their rights to property protected. It would not be fair for an emerging farmer to have their land expropriated without any criteria which could be relied upon to determine the lawfulness and fairness of such an expropriation.The notion of the social function of land could help in giving more meaning and content to that debate.

In principle, he was not opposed to nationalisation or State custodianship. However, nationalisation did not necessarily equate to greater equity. Many countries had nationalised land, which had not resulted a fairer distribution of property. In many countries where the State had nationalised land, corporate entities had taken control of the land which had been given to them by the State. This had actually resulted in people having land taken away from them. Even if land was nationalised, then incorporating a principle of the social function of land was essential. The social function of land principle would also constrain the State in terms of ensuring equity and ensuring that land was used to facilitate redistribution and upliftment.

In response to Mr Robertson, Dr Wegerif said the core philosophy of the social function of land recognised that it was necessary to balance individual rights with wider societal rights and interests. There should be a number of principles which guided the debate. Individual autonomy and rights must be combined with notions of solidarity and equity. This could grapple with the tension between individual and societal rights. The problem was that the current system viewed property rights purely from an individual perspective. Society did not consist of individuals. It consisted of a collection of individuals who had to live together. It was necessary to balance societal and individual rights together.

In response to Mr Filtane, Dr Wegerif said the amount of compensation should not be reduced to a question of market value alone. The Constitution was already clear that market value was the determining factor. The incorporation of the social function of land would also help determine how market value and other factors should be considered to determine what amount of compensation should be paid.

The meeting was adjourned.