Fatally flawed Land Court Bill runs counter to founding values of the Constitution – IRR

1 March 2022

The Land Court Bill runs counter to the founding values of the Constitution, and its ideological premise that private property rights are the problem and state ownership the solution is fatally flawed.

These key points are central to the oral presentation being made today by IRR Head of Policy Research Anthea Jeffery to the Portfolio Committee on Justice and Correctional Services.

Jeffery will argue that rather being enacted into law, the Land Court Bill should be abandoned.

One of the core purposes of the Land Court Bill is doubtless to facilitate the provision of ‘nil’ – or otherwise inadequate – compensation under the Expropriation Bill of 2020, currently also before Parliament. The Land Court Bill will achieve this by ousting the jurisdiction of the ordinary courts to decide on the ‘just and equitable’ compensation that Section 25 of the Constitution guarantees.

Instead, the Land Court will have exclusive jurisdiction to decide many land disputes, including (once the Expropriation Bill has been enacted) the compensation payable on land expropriation. Appeals from its decisions will have to be made to a new Land Court of Appeal, rather than the existing Supreme Court of Appeal. Direct appeals to the Constitutional Court may be excluded by statute.

Under the Bill, the Land Court will have the capacity to sidestep the normal rules of evidence, appoint land activists as assessors, and give those assessors the power to overrule presiding judges on all questions of fact – including whether the conditions for ‘nil’ compensation under the Expropriation Bill have been met.

The Land Court Bill will be used to help strip all South Africans – including the 8.8 million black people who own homes and the thousands more who have bought 6 million hectares of rural and urban land since 1991 – of the ownership rights they already enjoy.

Both the Land Court Bill and the Expropriation Bill assume that the cost of land acquisition is the key reason for land reform failures. However, the government’s own High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change has rejected this view.

In its 2017 report, the Panel identified the core barriers to successful land reform as including inefficiency, corruption, and elite capture. No less important was the government’s determination to confine land reform beneficiaries to leasehold rather than freehold: to give them ‘access’ to land, rather than ownership of it.

The importance of property rights is further confirmed by the ‘Index of Economic Freedom’ compiled by the Fraser Institute, a Canadian think tank. The Fraser Institute’s research shows that the countries which do the best in upholding private property rights and limiting state power are the ‘most free’, in the economic sense. They are also by far the most prosperous.

In 2019, for example, nations in the top quartile for economic freedom had average per capita GDP of $50 600, as compared to $5 900 for countries in the bottom quartile (as measured in PPP constant US$).

Furthermore, the average income of the poorest 10% in nations in the top quartile was roughly $14 400, whereas the poorest 10% in the bottom quartile had an average income of only $1 500. In addition, for countries in the top quartile, only 1% of the population lived in extreme poverty (on less than US$1.90 a day), as compared to 34% in the bottom quartile.

Issued by Gabriel Crouse, IRR Head of Campaigns, 1 March 2022