President Cyril Ramphosa’s expert panel of advisors on land reform has endorsed the amendment of the constitution for the state to expropriate land without compensation – but only in well-defined and clear circumstances.

In a 144-page final report published on Sunday, a majority of the 10-member panel, which was appointed by Ramaphosa in September 2018 to review all aspects of the land reform policy, want the state to finalise amendments to the long-mooted Expropriation Bill.

The passing of this bill might be further delayed because a new parliament was installed after the May 8 general elections, some members of parliament are yet to read the final report, and the National Assembly is on a three-week recess until mid-August.

Read: Land expropriation: the acid test for Cyril’s commitment to policy consistency

Once the bill has been finalised by parliament, the panel said it would set out a clear procedure on the kind of land that can be expropriated and when compensation can or cannot apply. Essentially, the panel wants the bill to give guidelines to the state on land reform and redistribution.

An ‘explicit option’

In August 2018, parliament’s public works committee withdrew the Expropriation Bill in order to draft a new bill that would repeal the current Expropriation Act of 1975. The new bill would be in sync with the state’s plan to review section 25 of the constitution (dubbed the property clause) to make land expropriation without compensation an explicit option.

This section currently gives the state the power to expropriate land for land reform based on “just and equitable compensation”. However, the new Expropriation Bill of 2019 would allow the state to expropriate land, in the public interest, without compensation, but only in defined circumstances.

In other words, the state can expropriate land without compensation if it identifies land that is abandoned, hopelessly indebted, held purely for speculative purposes, obtained through criminal activity, and unutilised by state-owned entities. Land already occupied and used by labour tenants and former labour tenants, people in informal settlement areas, inner-city buildings with absentee landlords, land donations, and farm equity schemes would also be expropriated.

Read: Zimbabwe begins paying white farmers who had land expropriated

“It is important that the [Expropriation] Bill must specify much more clearly the meaning of instances that would amount to ‘nil’ compensation, [for example] land held for ‘speculative reasons’, and the meaning and import of ‘abandoned land’. Alternatively, this could be a matter for clarity by the courts,” reads the final report of the panel.

The panel includes 10 people ranging from academia, agricultural economics and law to representatives of organised agriculture and black farmers. The panel was set up by Ramaphosa after public hearings on the land question held country-wide underscored the state’s failure to redistribute land and implement meaningful land reform since 1996. The panel’s final report is meant to inform government policy on land reform.

Measured approach

Arguably, the panel’s report provides clarity on how the state can expropriate land without compensation in a measured way compared with the blanket resolution proposed by the ANC at its national elective conference in 2017, where Ramaphosa emerged victorious as the party’s leader.

At the ANC elective conference, the governing party resolved to pursue expropriation of land without compensation by amending section 25 of the constitution. In doing so, the ANC said expropriation without compensation should be pursued without destabilising the agricultural sector, without endangering food security and without undermining economic growth and job creation.

Panel is against nationalising land

The panel has also ruled out nationalisation of land, which it said was not allowed under the constitution – pouring cold water on the Economic Freedom Fighter’s policy to nationalise all land.

The panel found that the failure of SA’s land reform programme to establish a new generation of sustainable household, small scale, and commercial black farmers was caused by lack of security of tenure in the form of title deeds, as well as state and institutional weakness and corruption.

The panel has made wide-ranging recommendations, including, among others, that the state:

Develop an audit and national data portal of land rights as most landownership data is not reliable;

Strengthen the under-resourced Land Court to speedily deal with land claims and disputes; and

Improve oversight, investigations, and prosecutions to stop land-related corruption.

Another recommendation is to target access to land for housing and settlement among marginalised people in both urban and rural areas – including the establishment of a land reform fund that will crowd contributions from the private and public sector for land acquisition and housing development in well-located areas.