Landmark ConCourt judgments proves ANC impedes land reform, not the Constitution

23 August 2019

While President Cyril Ramaphosa yesterday confirmed that Parliament would proceed with the process of amending Section 25 of the Constitution to allow for land expropriation without compensation, two landmark Constitutional Court judgments this week placed the blame for failed land reform firmly at the feet of the Department of Rural Development and Land Reform (DRDLR).

The Democratic Alliance has long held that the Constitution is not a barrier to land reform, the ANC is. The barriers to land reform have been and continue to be ANC-government corruption, constrained budgets and a lack of political will.

On Tuesday, the Constitutional Court, in a majority judgment, upheld an order by the Land Claims Court’s that a special master be appointed to assist the Department in processing land claims. This judgments comes after almost two decades of litigation and complaints against the DRDLR for its failure to timeously mediate and process land claims. The Court judgment stated that the “Department’s failure to practically manage and expedite land reform measures in accordance with constitutional and statutory promises has profoundly exacerbated the intensity and bitterness of our national debate about land reform. It is not the Constitution, nor the courts, nor the laws of the country that are at fault in this. It is the institutional incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis”.

In a judgment delivered on Thursday, the Constitutional Court confirmed the Eastern Cape High Court decision to declare Sections of the Land Affairs General Amendment Act and the Upgrading of Land Tenure Rights Act invalid. This is due to the fact that  Section 3 of the Tenure Act, which enables legal occupants of a property to seek conversion of their tenure rights into ownership, had for the past two decades not been extended to the former apartheid homelands. This is because, the Land Affairs Amendment Act extended the application of the Tenure Act to the whole republic, with the exception of Section 3.

The Court found that “it is egregiously unfair to afford redress to some of the victims of discrimination under apartheid and withhold that redress from other victims on the basis of where they are currently located. […]. Nor can there be good reason for a land tenure that continues to entrench insecure land rights of the apartheid era”. And that “any land tenure system that affords people less secure rights in land on the basis of where they are located is inconsistent with the Constitution and the values on which our Constitution was founded”.

In light of these landmark judgments, the DA will write to the Chairperson of the Portfolio Committee on Land Reform, Zwelivelile Mandela, to ask that he requests a meeting with the Minister of Rural Development and Land Reform, Thoko Didiza, to come and explain what steps will be taken in order for the Department to implement the courts  decisions.

Unlike the ANC, where the DA governs, we do not impede land reform. The Western Cape has a 72% success rate on agricultural land reform projects, compared to an estimated national success rate of 10%. And since 2014, the Western Cape Government have supported 357 Land Reform Projects with over R500 million in support funding.

It is quite clear that the Constitution includes legitimate mechanisms for land redistribution and that the ANC’s attempts to amend the Constitution has nothing to do with justice and reform. It is merely and attempt to hide its failures in land reform.

Issued by Annette Steyn, DA Shadow Minister of Agriculture, Land Reform & Rural Development, 23 August 2019