By Phephelaphi Dube: Director, Centre for Constitutional Rights
1 March 2018
As modern constitutions stand, they can be amended as a means of responding to changing times and as a way of remaining relevant. The South African Constitution is no exception, having been amended no less than 17 times since it was adopted in 1996. The latest attempt involves amendments to the property clause.
The resolution passed this week by the National Assembly, of which the crux is to ensure “that Government would continue the land reform programme that entails expropriation of land without compensation, making use of all mechanisms at the disposal of the state, implemented in a manner that increases agricultural production, improves food security and ensures that the land is returned to those from whom it was taken under colonialism and apartheid and undertake a process of consultation to determine the modalities of the governing party resolution”. The passed resolution is an amendment of the EFF-sponsored resolution, which essentially to sought to ensure the “necessity of the State being a custodian of all South African land”. Suffice to say, the EFF resolution as it stands, had it been passed and subsequently incorporated into the Constitution, would have abolished all notions of private property ownership.
However, amending the property clause is, at best misguided and at worst, a cynical ploy to manipulate voter sentiments ahead of the 2019 national elections. There appears to be misunderstanding or even deliberate misinformation regarding the contents of the property clause. To begin with, the property clause is not an impediment to effective land reform. Another wrongly held view is that the property clause guarantees property rights – it does not – it merely protects against the arbitrary deprivation of property, for those who are owners. The property clause further seeks to ensure land reform through redistribution, land restitution and tenure security, as well as the equitable access to natural resources.
Based on this – how does the State fare in its constitutional obligations? The answer points to all-round dismal performance on the part of the State. While there may be pockets of excellence, particularly with communal property associations, these successes are few and far between. The 2012 National Development Plan (NDP) has placed a 20% target for redistribution of agricultural land by district by 2030. Yet research shows that only 8% of such land has been redistributed. Even then, there are well-documented examples suggesting little to any State support for the new landowners, resulting in ghost farms post land reform. Ironically, the 2017 AgriSA national audit of the transaction of agricultural land in South Africa from 1994 to 2016 revealed much higher levels of successful transfer of land from white South Africans to black South Africans in the private sector, outside of State involvement.
In any event, redistribution lacks a legislative framework governing land allocation. This renders redistribution susceptible to “changing policy agenda and ideological positions”, as identified by the Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (High Level Panel Report) to the National Assembly in 2017. The Report further identifies increasing corruption in the assessment of both restitution and redistribution of land.
The same High Level Panel Report shows that land claims lodged by 1998 will take another 35 years to be settled, while those claims lodged after 2014 will take another 143 years to be settled. It is apparent that land restitution has thus far been a slow process, with deep distrust of the government at all levels. On the whole, due to the failings of land restitution, there exists uncertainty, which in turn impacts negatively on the rural economy.
Security of tenure is also recognised by the property clause, with section 25(9) specifically stipulating that Parliament must pass a law to give effect to the provision. However, there is no law to secure and protect communal land tenure, thus failing 17 million South Africans living in the erstwhile Bantustans. Again, the High Level Panel Report concludes that “communal areas remain sites of persistent poverty and inequality”, with the continued tenure insecurity being attributed to collusion by government officials. Their failure to implement available legal checks and balances, thus enables elites to profit from land and other mining deals.
So, given the above failings by the State – despite the Constitution enshrining reform and redress in the property clause within the Bill of Rights – seeking an amendment to the property clause is, on the face of it, unreasonable. Said more forcibly: there is no need for constitutional amendment to the property clause. Effective land reform requires political will, which, given the ever-shrinking budget for land reform purposes, is debatable. Even if the Constitution is amended to permit expropriation without compensation, if the above problems are not dealt with, then South Africa will be in a worse off position than before – arbitrarily depriving property owners of their entitlement and still failing the landless and those whose tenure is insecure.
It remains to be seen precisely how the new property clause to reflect the above resolution will be worded. For now, the Constitutional Review Committee (the Committee) will have to begin a public consultation process, after which the Committee has until 30 August 2018 to report to the National Assembly. The matter is by no means final, as the National Assembly will have to vote in favour of the Committee-approved amendment by a two-thirds majority, with the concurrence of at least six of the nine provinces.
Ultimately, these events shine the spotlight on the failings of the State’s land reform policies. They further enable public discourse about the possibilities and meanings of land ownership in South Africa, given its history of dispossession and land conflict, yet bound by foundational values including human dignity, the achievement of equality and the advancement of human rights and freedoms. It is also important to recognise the diverse meanings of land – from dignity through to economic wealth – without losing sight of the key goal of land reform: to improve the livelihoods of the rural and urban poor, as envisaged by the Constitution.