South Africa's Land-Expropriation Debate: The State of Play

South Africa’s ruling party plans to change the nation’s constitution to make it easier to seize land without paying for it. Lawmakers have also introduced separate draft legislation that outlines the circumstances under which the state can do this.

The African National Congress says amendments are needed to address racially skewed ownership patterns dating back to colonialism and white-minority rule, a view shared by the Economic Freedom Fighters, the second-largest opposition party. Farmers’ groups and some other opposition parties say the changes will undermine property rights and deter investment, and that they will contest any changes in court.

Constitutional Changes
Lawmakers in both chambers of parliament -- the National Assembly and the National Council of Provinces -- in December approved a committee report that recommends the amendment to section 25 of the constitution, which protects property rights. Another parliamentary committee was set up on Feb. 12 to draft a bill needed to make the changes and elected ANC MP Thoko Didiza, who served as agriculture minister from 1999 to 2006, as its chairwoman.
The National Assembly, which adjourns from March 22 until after national elections on May 8, will on March 19 debate whether her committee should continue its work until the day before the vote, or whether the new parliament should revive the process, Didiza said in an interview.
“No wording of the change to section 25 has been agreed to because, depending what the NA decides, that task will be given to drafters and then we will have to go through a public participation process about that,” she said. The NCOP “will also have to go through a similar process to change the section. So, I don’t see the section being changed and coming into effect before the end of the year, at the very least.”
Given that section 25 is part of the Bill of Rights of the constitution, two-thirds of lawmakers in the 400-seat National Assembly and six of the nine provinces in the National Council of Provinces will need to approve the change, constitutional law expert Pierre de Vos said by phone.
Land Expropriation Bill
The constitution changes are separate to the Department of Public Works’ draft Expropriation Bill, which it released for public comment on Dec. 21, giving the public 60 days from then to make submissions. The draft is the third version of the bill, with the first iteration released in 2008.
The government has “no ambition” to pass the bill before the election, but wants to have it fully processed and signed into law by the end of the year, Deputy Public Works Minister Jeremy Cronin said in an interview. Lawmakers have received “a large number of public submissions” and will table the changes to the draft at the last cabinet meeting before the election, he said.
The bill proposes that land can be taken without pay if it’s occupied or used by a labor tenant, held for purely speculative purposes, belongs to a state-owned company, or if its owner has abandoned it.
It also states that an expropriating authority may have a right to use property temporarily if it’s urgently required for, a period not exceeding 12 months. It may be just and equitable for no compensation to be paid where land is expropriated in the public interest, it says.




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