Political will – not amendments to the property clause - needed
1 March 2018
As modern constitutions stand, they can be amended as a means of responding to changing times and as a way of remaining relevant. The South African Constitution is no exception, having been amended no less than 17 times since it was adopted in 1996. The latest attempt involves amendments to the property clause.
The resolution passed this week by the National Assembly, of which the crux is to ensure “that Government would continue the land reform programme that entails expropriation of land without compensation, making use of all mechanisms at the disposal of the state, implemented in a manner 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 and undertake a process of consultation to determine the modalities of the governing party resolution”. The passed resolution is an amendment of the EFF-sponsored resolution, which essentially to sought to ensure the “necessity of the State being a custodian of all South African land”. Suffice to say, the EFF resolution as it stands, had it been passed and subsequently incorporated into the Constitution, would have abolished all notions of private property ownership.
However, amending the property clause is, at best misguided and at worst, a cynical ploy to manipulate voter sentiments ahead of the 2019 national elections. There appears to be misunderstanding or even deliberate misinformation regarding the contents of the property clause. To begin with, the property clause is not an impediment to effective land reform. Another wrongly held view is that the property clause guarantees property rights - it does not - it merely protects against the arbitrary deprivation of property, for those who are owners. The property clause further seeks to ensure land reform through redistribution, land restitution and tenure security, as well as the equitable access to natural resources.
Based on this - how does the State fare in its constitutional obligations? The answer points to all-round dismal performance on the part of the State. While there may be pockets of excellence, particularly with communal property associations, these successes are few and far between. The 2012 National Development Plan (NDP) has placed a 20% target for redistribution of agricultural land by district by 2030. Yet research shows that only 8% of such land has been redistributed. Even then, there are well-documented examples suggesting little to any State support for the new landowners, resulting in ghost farms post land reform. Ironically, the 2017 AgriSA national audit of the transaction of agricultural land in South Africa from 1994 to 2016 revealed much higher levels of successful transfer of land from white South Africans to black South Africans in the private sector, outside of State involvement.