Land expropriation: Heated parliamentary meeting expected as DA questions process
13 November 2018
On the eve of the Joint Constitutional Review Committee's discussion on its recommendations regarding the amendment of the Constitution, the DA says it "reserves all of its rights" and will make recommendations "under protest".
At a chaotic meeting last week, the review committee gave parties until 16:00 on Monday to provide the committee with their written recommendations on whether section 25 should be reviewed to allow for expropriation without compensation.
The ANC, EFF and UDM, who all support a constitutional amendment, were ready to proceed with their recommendations last Thursday, but the DA, FF Plus and Cope, who oppose an amendment, were not. The matter was then postponed.
In its submission, which News24 has seen, the DA states "categorically that these observations and recommendations are made under protest".
"The draft report in which these recommendations and observations are to appear should not be considered yet as the constituent parts of the report are yet to be finalised.
"The Democratic Alliance reserves all of its rights with regard to this draft report, and the making of recommendations under these circumstances should not be construed under any circumstances as acquiescence, approval or consent of the errors in procedure that have been wilfully committed by the committee and some of its members," reads the DA's submission on its recommendations.
Procedural concerns
The party's major bone of contention is that the committee has not received a final report on the thousands of written submissions from Parliament.
"Thus, the final committee report should not be considered until the committee receives the report on the written submissions. To date, no such report has been received, and no presentation in this regard has been made to the committee. In fact, the committee has not engaged, meaningfully or at all, with the contents of the written submissions."
The party has other procedural concerns as well, chief among them that the high-level panel on key legislation – which was led by former president Kgalema Motlanthe and made damning findings of government's land reform programme – and the surveyor general weren't consulted.
Thus the report should only be finalised after the committee has engaged meaningfully with the high-level panel report.
Procedural matters aren't the only flashpoint expected in Tuesday and Wednesday's meetings as the three biggest parties differ substantially in their recommendations.
While the ANC and EFF agree that the Constitution should be amended to allow expropriation without compensation, they differ substantially on the form of this amendment, as City Press reported on Sunday. The DA is altogether opposed to an amendment.
The main points of the three biggest parties' recommendations are as follows:
ANC
Section 25 must be amended to make explicit what the ANC regards to be implicit, that expropriation without compensation is a legitimate option for land reform;
The historical wrongs caused by the arbitrary dispossession of land must be addressed ensuring equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agriculture reform programmes;
All legislation related to land reform must be enacted urgently and security of tenure for farm workers, farm tenants and those residing on communal land in trust must be assured; and
All land reform measures must consider the impact on food security, stability in the agricultural sector and economy, investor confidence, financial exposure to banks and other financial institutions by commercial farmers, and result in adequate support for emerging farmers.
EFF
The Constitution must be amended to allow for expropriation without compensation before the 2019 elections;
Land, water and natural resources must be nationalised and administered by the state on behalf of the people;
The state must take steps to make land more accessible, taking into account racial imbalances in landholding;
There must be a land redistribution bill which must be passed as soon as possible, and which would create an independent state land management agency;
Ownership ceilings must be implemented;
There must be an independent land ombudsman to ensure people's land rights are not violated by the state; A bill to change the Constitution must be finalised by the end of the year;
A separate bill that will protect small-scale farmers and force the state to procure products from them must be passed;
A moratorium must be placed on large-scale land purchases in anticipation of the change in the Constitution.
DA
The current constitutional provisions adequately allow progressive land reform, restitution and the protection of tenure security and land rights. Successful land reform doesn't require amending the Constitution;
Other mechanisms and legislative measures have not been exhausted. Parliament, through the leadership of the ANC, has not enacted appropriate legislation to lend effect to constitutional provisions that currently exist;
Expropriation without compensation does not address the real constraints in land reform. Other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity, have proved to be the real stumbling blocks to land reform;
There are serious consequences inherent to amending the Bill of Rights, which include legal uncertainty and the infringement on a variety of other rights set out in the Bill of Rights;
Expropriation without compensation holds a real and tangible threat not only to existing land rights of all South Africans but also threatens investment, the banking industry and food security due to the fact that "property" is not limited to land;
Procedural issues with the public participation process potentially compromise the process followed by the committee due to a failure to fully and meaningfully engage with and consider all submissions to the committee; and
Any proposed amendment will likely fail to meet constitutional muster.
What next:
As things stand, the Joint Constitutional Review Committee will meet to discuss the recommendations on Tuesday and Wednesday, before adopting its report.
This report will then be tabled in the National Assembly. If the National Assembly adopts the report, which seems likely given the ANC's majority, the matter will be referred to another committee, the Portfolio Committee on Justice and Correctional Services or an ad hoc committee, to draft the proposed amendments. This process would also require a public participation process.
These proposed amendments must be adopted by a two-thirds majority in the National Assembly and six of the nine provinces in the National Council of Provinces. It seems highly unlikely that such a process will be concluded before next year's elections, and new a Parliament replaces the current one.
