The re-emergence of expropriation without compensation is part of the ANC factional politicking ahead of its General National Council (NGC) scheduled for June, when the governing party will assess its progress halfway through the five-year governance term. (Photo: Daily Maverick)

Important points have gone MIA in the political noise around the ANC National Executive Committee’s lekgotla decision that the executive would determine all regarding expropriation without compensation. Ministerial powers on various land matters already are expansive. But a general law to effect compensationless expropriation after a constitutional amendment is barely on the horizon.

What about that constitutional amendment?

That process is underway in Parliament. A draft bill to amend the Constitution for the 18th time, is open for public comment until Friday 31 January 2020 with public hearings scheduled from mid-February.

The National Assembly ad hoc committee on amending Section 25 of the Constitution of the Republic of South Africa is working towards the end of March as the deadline for adopting the constitutional amendment with the required special two-thirds majority of the 400-strong House. Then it moves to the National Council of Provinces, where six of the nine provinces must agree in another special majority to carry the constitutional amendment.

The Constitution 18th Amendment Bill’s proposals dovetail the existing so-called property clause, Section 25 of the Constitution, which in Section 2(b) states compensation, and how it is paid, can be determined by those affected or it can be approved by a court.

To this the bill adds to the possibility of no compensation, “provided that in accordance with subsection 3A, a court may, where land and any improvement thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil”.

And that proposed 3A reiterates what this section of the Bill of Rights previously states – the need for a law of general application – with the following:

“National legislation must… set out specific circumstances where a court may determine that the amount of compensation is nil.”

So a constitutional amendment is not the end of the process?

No. For expropriation without compensation to become an implemented reality, a law of general application must be adopted by Parliament.

That would be an expropriation law.

But democratic South Africa has failed to adopt such expropriation legislation, leaving the apartheid 1975 Expropriation Act in force.

The important take-away is that currently, as the law stands, a range of ministers, as well as premiers and mayors, have expropriation powers. If that power has not been used, it’s not a question of lack of availability, but rather lack of political will.

Where is this new expropriation draft law?

The bill, which falls under Public Works, is, as far as it’s known, before the National Economic Development and Labour Council (Nedlac) for consultations.

It got there after some slick parliamentary moves in 2018 as the tweaked version of an old draft law. That old draft was itself a second take on the original2007 Expropriation Bill.

The Expropriation Bill of 2015 had been for all intents and purposes near the legislative finish line in 2017 when the ANC decided to hold it in abeyance pending its ANC Nasrec conference later that same year. That ANC conference, in a last-minute resolution driven by the radical economic transformation (RET) grouping, adopted expropriation without compensation.

And so in early 2018, the National Assembly rejected that 2015 Expropriation Bill, effectively a parliamentary practice to allow the law-making process afresh. This gave the public works ministry the space to redraft the bill, adding the ANC Nasrec resolutions when compensationless expropriation is possible, including abandoned land or that held for speculative purposes, state-owned land or land owned by state-owned entities (SOEs).

The Expropriation Bill, version 2019, also states:

“It may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances…”

It provides for a role for the courts in determining compensation, including nil compensation, alongside the possibility of an agreement between the expropriating authority and others.

That’s all pretty much in line with the Constitutional Amendment Bill – as it stands.

It’s taken a year to get from the required departmental public comment period following the bill’s publication to the Nedlac consultations.

Once the bill is done there it’ll go to Cabinet for approval, and then on to Parliament. It is unlikely to reach the national legislature before the second half of 2020.

And that means only then, the parliamentary law-making process, including public comment periods and public hearings, can start. At a rough average, draft legislation winds its way through both Houses of Parliament, the National Assembly and National Council of Provinces over about two years. It can, of course, be quicker.

But a lesson from the three efforts by South Africa’s democratic dispensation to bring a new expropriation law goes beyond massaging the legislative process over politics.

In 2008 Public Works withdrew the first expropriation legislative attempt rather than amend it, after Parliament’s law advisers informed the department it was unconstitutional not to allow recourse to the courts.

Back to the ANC NEC lekgotla decision on giving the executive powers regarding expropriation without compensation. What does that mean?

The constitutional amendment cannot exclude recourse to the courts. That would be unconstitutional.

The ANC as much as acknowledged this at its NEC lekgotla briefing when its economic transformation committee chairperson Enoch Godongwana said decisions related to expropriation without compensation “must remain with the executive so you don’t have long processes… An individual can take the executive decision for review”.

Publicly, this decision is dressed up as a democratically elected government being in a better position to act speedily, while the courts are being made the fall guy for the slow pace of land reform.

This somewhat conveniently ignores that until quite recently the ANC blamed the “willing seller, willing buyer” principle for the slow pace of restitution and land reform.

At its 2007 Polokwane national conference, reiterated by 2012 Mangaung national conference resolutions, the governing party resolved to ditch this “willing seller, willing buyer” principle – although that was not implemented.

Now the ANC highest decision-making body between national conferences has taken a decision that expropriation without compensation belongs to the executive, it must make it stick in the legislative process.

Right now it’s unclear exactly how the ANC would want to amend the Constitution 18th Amendment Bill proposals. That should emerge if and when ANC officials or NEC members make their public comments, possibly even at public hearings.

How the constitutional amendment ultimately will be phrased would also depend on the political interaction during parliamentary lawmaking. It’s not inconceivable the ANC may moderate its proposals to gain the EFF’s 44 votes which the governing party needs to meet the special majority required to pass the constitutional amendment in the House.

That what was published for public comment was a consensus view in order to maintain momentum, had been clear since the ad hoc committee tasked with this job met in early December 2019. At the time the ANC only proposed one amendment to the bill – that of introducing exceptions to the 1913 Natives Land Act cut-off date for restitution claims. This constitutional criterion has meant communities such as the Khoi-San, who lost their land before 1913, could not seek redress for their loss through discriminatory laws and practices.

It was defeated as were proposals from the DA in a heated meeting of Parliament’s ad hoc committee on the amendment of Section 25 of the Constitution of the Republic of South Africa.

Why the current focus on executive determination in compensationless expropriation?

The short answer – politics, and ANC factional politicking in particular. Then throw in sleight of hand to obfuscate inaction, lack of political will and paralysis caused by a variety of reasons not limited to capacity problems and corruption.

The High Level Panel chaired by former president Kgalema Motlanthe is critical of government performance on the land reform front. And the report from the July 2019 Presidential Advisory Panel on Land Reform and Agriculture argued expropriation with or without expropriation is just one instrument among many to ensure land reform.

To repeat, ministers have expropriation powers already, as do premiers and mayors.

And the rural development, land reform and agriculture minister already has a swathe of powers regarding land reform and restitution, with key structures such as the Commission on Land Restitution and the Office of the Valuer-General reporting to that minister.

A quick, but by no means exhaustive recap:

The Spatial Planning and Land Use Management Act, which came fully into force in July 2015, some two years after Parliament adopted it, provides the framework across three spheres of state for spatial planning and approvals. The status of the law’s regulation is unclear given the lack of an implementation date amid opposition by, particularly, traditional leaders concerned that their powers in communal land areas would be undermined.

The 1994 Restitution of Land Rights Act. In line with Section 25 of the Constitution, this allowed people dispossessed through racially discriminatory laws and practices to claim redress. The window for this closed on 31 December 1998, and to date not all claims have been finalised and settled.

The 2014 Restitution of Land Rights Amendment Act was declared unconstitutional in 2017 over lack of meaningful consultations as the National Council of Provinces rushed the law in that election year. Now left in the lurch are more than 160,000 claimants, who had filed in the new window that was supposed to be open to July 2019. A new law has yet to be passed.

The protection of vulnerable rural residents also falls under Rural Development and Land Affairs since 1996 through the Extension of Security of Tenure Act for farmworkers, and the Land Reform (Labour Tenants) Act.

Through the Community Property Associations Act, and the specifically established structure through recently passed amendment legislation, Rural Development has an important role to play for CPAs – from registration to assistance and dispute resolution.

There’s more. But the above makes the point – there’s no shortage of legislative powers of the executive, as represented by the rural development, land reform and agriculture minister.

Perhaps ironically, security of tenure on communal land – a key to land reform that would benefit ordinary South Africans – remains a grey, fudged area.

Since the Communal Land Rights Act was declared unconstitutional on a legislative technicality in 2010, no new law has been drafted and brought to Parliament. Although in 2017 a draft Communal Land Tenure Bill was released for public comment, it is unclear what has happened to it since.

Instead, tenure rights are protected by the Interim Protection of Informal Land Rights Act that, conceived as a temporary measure in 1996 pending permanent land tenure, is being renewed every year.

A key reason for this can be found in rural power relations where traditional leaders are not infrequently at odds with the interests of communal land residents, be that at Xolobeni in the Eastern Cape, in the North West platinum areas, or anywhere in between.

Traditional leaders, however, are regarded as a key support and power base by the ANC.

Coincidentally, right at the start in 2018 when the question of expropriation without compensation was put to public hearings across South Africa, communal land was excluded from such – a clear nod by the ANC to traditional leaders.

So it’s politics?

When the ANC National Executive Committee (NEC) lekgotla decided “the power to determine issues related to expropriation of land without compensation should reside in the executive”, as the official statement on the meeting said, it was a win for the radical economic transformation (RET) grouping.

The RET grouping pulled a similar rabbit out of the hat at the December 2017 Nasrec ANC national conference by getting the compensationless expropriation resolution adopted in the last conference minutes.

The re-emergence of expropriation without compensation is part of the ANC factional politicking ahead of its General National Council (NGC) scheduled for June, when the governing party will assess its progress halfway through the five-year governance term.

Expropriation without compensation, which played a key role ahead of the May 2019 elections, is an important electioneering campaign point for the 2021 local government elections.

So expect more political noise, politicking and sound and fury. The fallout of this may well be more damaging to South Africa’s policy and governance system than the end result. DM