Property: No need for expropriation without compensation?

During his media briefing as chair of last month’s ANC elective conference commission on economic transformation, national executive committee member Enoch Godongwana said that recommendations on land reform in a high-level panel report on the transformational impact of key post-1994 legislation would – among other things – inform discussions at this month’s pre-leadership-lekgotla workshop on an issue of increasing concern to investors. As Legalbrief Today reported at the time, chaired by former President Kgalema Motlanthe the panel was appointed in January 2016 to assess the legislation and identify gaps impeding government policy implementation in the light of public input. Its final report was presented to Parliament’s speakers forum last November and – according to a media statement on the way forward – will underpin plans apparently afoot to ‘remodel’ the ‘legislative sector’ and ‘sharpen its interventions’ to ‘accelerate’ development and improve the lives of ordinary South Africans.

Interestingly, notes Pam Saxby for Legalbrief Policy Watch, given a recent ANC elective conference resolution to amend section 25 of the Constitution (property rights) to allow for expropriation without compensation, an executive summary of the full report among other things posits that ‘the need to pay compensation has not been the most serious constraint on land reform in SA to date’. Apparently, ‘corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity’ have. Against that backdrop, the panel’s view is that ‘government has not used (its existing) powers …to expropriate land for land reform purposes effectively’. Neither has it used ‘provisions in the Constitution … (allowing) compensation … below market value’. Instead of amending the Constitution to provide for expropriation without compensation, government should therefore exercise these powers ‘more boldly … in ways that test the meaning of … compensation provisions in section 25(3) – especially ‘in relation to land that is unutilised or underutilised’.

The executive summary also notes recommendations in the report for developing ‘a new framework law’ focusing on ‘pro-poor redistribution’. ‘No law … exists to give meaning to, or set standards for measuring whether land reform enables citizens to gain access to land on an equitable basis,’ it asserts – pointing to evidence of a drift towards ‘elite capture’ in implementing the policies and legislation concerned. Against that backdrop, the panel has called on Parliament to: amend the 1994 Restitution of Land Rights Act ‘in ways that address current capacity, resource and accountability constraints’; and ‘recognise, record and administer effectively a continuum of rights to land’ under ‘a new Land Records Act to support an inclusive and robust land administration system that caters for all South Africans across a full spectrum of coexisting land rights’.

Also recommended is that measures be put in place ‘to ensure equal citizenship rights for urban and rural people under municipal councils’. To that end, legislation requiring urgent attention includes the Communal Property Associations Act, and ‘recent laws … used to dispossess vulnerable South Africans of customary land rights in former homeland areas’. In addition, the Interim Protection of Informal Land Rights Act (IPILRA) should be ‘urgently amended and properly enforced’ – and, among others, the Traditional Leadership and Governance Framework Act, Mineral and Petroleum Resources Development Act and Ingonyama Trust Act ‘explicitly made subject to (the) IPILRA and amended’ to prevent them from being ‘interpreted to enable land grabs’. With the aim of addressing ‘the problems facing people living on farms’, the Extension of Security of Tenure Act and the Labour Tenants Act should be ‘amended slightly’ and their ‘neglected redistributive components’ ‘properly enforced’. Given that ‘the Constitutional Court has found that customary law provides for ownership of land’ and that ‘people in rural areas are (therefore) entitled to the same rights as all South Africans’ in that regard, Parliament should ‘ensure that no laws or policies abrogate these rights and (that) a law is introduced to secure customary land rights as required by Sections 25(6) and (9) of the Constitution’.

Turning to administrative constraints on effective land restitution – and noting that the Constitutional Court ‘struck down a 2014 amendment to the (Restitution of Land Rights) Act in 2016’, interdicting the Restitution Commission from processing land claims lodged in terms of the amendment and requiring Parliament to enact a ‘new law’ by 28 July 2018 – according to the executive summary, an ANC private member’s Restitution of Land Rights Amendment Bill tabled last year does not adequately address the issues concerned. This, too, requires urgent attention. In the context of the proposed ‘land recordal system’, the summary also calls for an ‘urgent review’ of the Traditional Leadership and Governance Framework Amendment Bill and Traditional and Khoi-san Leadership Bill now before the NCOP – informed by ‘public contributions received by the panel’. This is noting that ‘government-sanctioned interpretations of customary law are often not consistent with living customary law as practised by communities’.

Given the scarcity of ‘well-situated land for urban settlement’ as one ‘stark legacy of apartheid planning and discrimination’, according to the executive summary suitably located state-owned land should be made available for sub-economic housing – and ‘well-situated privately-owned land targeted for expropriation’. This is noting that the Constitution ‘provides for positive land rights in sections 25(5), (6), (7) and (9)’ respectively dealing with ‘equitable access (redistribution), tenure security and restitution’ and Parliament’s obligations in that context. In the panel’s view, ‘these rights are not being adequately promoted, enforced and protected’ but, instead, ‘appear to be under attack from policies and practices that redirect the benefits of land reform to potential political alliances with specific elites’.