The Freedom Charter and land question

‘The Freedom Charter remains an inspirational document for the oppressed people, not only in SA, but across the world. Its extraordinary breadth; its ambition; its depth are a testament to the abilities and courage of its writers.’ Tembeka Ngcukaitobi, a lawyer and member of the Law Reform Commission, adds the Freedom Charter aimed to reverse the imposition of racial restrictions on land ownership by Africans as per the Natives Land Act of 1913, proclaiming ‘restriction of land ownership on a racial basis shall be ended’. The land would be re-divided among ‘all who work it’. In an opinion piece on the Politicsweb site, Ngcukaitobi says the charter’s promise was not to end private land ownership, but its racialisation. He notes the charter’s vision – as expropriation of land and its subdivision – is now embedded in section 25 of the Constitution, ‘which has become a contentious clause recently’.

Ngcukaitobi notes the ‘great debate’ is whether expropriation without compensation should be explicitly provided for in the Constitution. ‘It is necessary to frame the question this way, because on a fair reading of the provisions in section 25(2), expropriation is part of the structure of the Constitution,’ he says. ‘Despite early contestation, the ultimate constitutional deal was that no one should be entitled to market based compensation standards. The basis for any compensation is justice and equity. Quite obviously, sometimes justice and equity will require no compensation at all.’ Ngcukaitobi suggests the main point is that the debate on whether the Constitution prohibits expropriation with nil compensation is a moot one. ‘It does. Nothing material is to be gained by asserting that this ought to be made more explicit than is already provided for.’

Ngcukaitobi argues the debate should now focus on the executive or administration programme and on the legislative programme. Regarding administration, we have pending claims under the restitution programme, which were submitted before December 1998; we have pending claims submitted before March 2001 for labour tenants; and we farm allocation applications in relation to land held by the state. All these need attention. Turning to the legislative programme, Ngcukaitobi says the Expropriation Bill is ‘a promising start’. However, he believes the main constraint of the Bill is its location and focus in the Department of Public Works – it is still about obtaining land for the needs of the state. ‘Its utility for larger land reforms – in the public interest – seems limited.’ He says Land affairs does not have a statute to enable it to expropriate land. ‘The only circumstance where the department may expropriate land is in the restitution context, and even there, the claim should be uncontested, or should have been proven.’ He suggests the Bill be amended to make this clear – or the Restitution Act be amended to grant the Department of Land Affairs original powers of expropriation ‘outside the context of restitution’.

Full opinion piece on the Politicsweb site