OPINION

Purpose of EWC amendment to strengthen property rights - Cyril Ramaphosa

President says another goal is to reinforce the transformative nature of our Constitution

17. The Leader of the Opposition (DA) to ask the President of the Republic:

Whether the Government supports the commitment of the governing African National Congress to

(a) amend section 25 of the Constitution of the Republic of South Africa, 1996, and

(b) delineate proposed conditions under which expropriation without compensation can be affected without allowing the Joint Constitutional Review Committee’s public participation process to be concluded; if not, what is the Government’s position in this regard; if so, what are the relevant details? NO2353E

REPLY:

Honourable Members,

On the 31st of July – in my capacity as the President of the African National Congress – I announced that the ANC would propose an amendment to the Constitution that would provide clarity on the circumstances under which expropriation without compensation could be effected.

The proposal is informed, among other things, by the views of our people in public hearings and by the members of the ANC.

It is based on an understanding that the Constitution, as it currently stands, allows for expropriation without compensation in certain circumstances.

The proposal is intended to make explicit what is currently implicit in the Constitution.

This announcement does not undermine nor does it preempt the outcome of the public consultation process.

Much like the pronouncements of other political parties – including the pronouncements by the Honourable Leader of the Opposion – this position will guide the contribution of its Members in the Parliamentary process.

Once Parliament has adopted a position on the matter, it will become government’s responsibility to implement.

As I indicated during the 2018 State of the Nation Address, government is determined that land reform should be implemented in a way that increases agricultural production, improves food security and ensures that the land is returned to those from whom it was taken under colonialism and apartheid.

I have appointed an Inter-Ministerial Committee on Land Reform, led by the Deputy President, which has been tasked with coordinating measures to accelerate the redistribution of land, the extension of security of tenure, the provision of agricultural support and the redress of spatial inequality.

This should take place within a broad and comprehensive land redistribution and agricultural development programme.

The acceleration of land redistribution is necessary not only to redress a grave historical injustice, but also to bring more producers into the agricultural sector and to make more land available for cultivation.

In dealing with just and equitable compensation in the case of expropriation, for example, Section 25 calls for an equitable balance between the public interest and those affected.

It lists among the relevant circumstances to be considered in deciding on such a balance, such things as the history of the acquisition of the property, its current use, and the extent of direct state investment in the property.

The late Andre van der Walt, one of South Africa’s leading constitutional property scholars, has argued that Section 25 (3) makes non-compensation permissible in appropriate circumstances.

Furthermore, Section 25 (8) of the Property Clause explicitly states: “No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination”.

The intention of the proposed amendment is to strengthen the property rights of all South Africans and to reinforce the transformative nature of our Constitution.

It gives greater force to the requirement in the Bill of Rights, which says: “The state must take reasonable legislative and other measures within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”

It will provide certainty to those who own land, to those who need land and to those who are considering investing in our economy.

For its part, government will continue to pursue a comprehensive approach to land and agrarian reform that ensures transformation, development and stability.

I thank you.

Issued by the Presidency, 22 August 2018