Land Expropriation, To Amend or Not To Amend?

The Parliamentary public hearings on constitutional amendment to allow for expropriation without compensation debunk the myth that the constitution can heal land divisions. The inquiry will examine the possibilities of constitutional amendments to fast-track land delivery against public objections that the constitutional remedies are inadequate and not fit for purpose. Public sentiments are explosive. Conservative land-owners are mounting a fearsome rearguard action, rejecting any inquiry into land rights.

But on the other side of the argument are furious ordinary folk, many living in poverty, suffering a myriad of social and economic problems. Faced with mounting pressure, parliament can no longer skirt and window-dress the issue. Upholding current provisions is a regressive step, a back-door attempt to expand inequality and increase the number of rural and land poor on the basis of historic injustices. If not properly managed democratic mayhem could break out and with it economic pandemonium from markets that don’t like uncertainty.

Land reform is difficult to navigate. Yet again, the ANC parliamentary majority face the challenge to triumph in the land debate. Amid ideological uncertainty, the ANC plays tit-for-tat with the masses and political opposition. It finds itself in a political quandary; partly because of its own doings, having squandered opportunities to develop a coherent ideology and partly for failing to effect constitutional changes because of competing class interest within its own ranks. We can learn two things from the ANC’s dalliance with the land problem: radical land policies are difficult to implement, on one hand; on the other hand, land reforms are driven by political considerations, especially the emergence of radical left-wing parties. The clamour for radical land policies from the left constitutes pressure on the ruling party to deliver. Whatever the real reasons the country is forced to consider amending the constitution, this is warranted but the ANC remains divided. The ANC President has publicly stated that land reform should not compromise agriculture productivity.

Through the AGOA agreement African countries can export duty free to the US. SA exports more manufactured products to the US under AGOA than any other African country. Our exports to the US valued at 8,6 to 11 billion dollars with our car manufacturing and agricultural products being the largest exports to the US, followed by mining products and machinery, making the US an important trading partner of our country that generates jobs for our people. If sanctions were to be imposed on SA, Malema and his merry band of EFF followers and their ANC surrogates will be the first to flee the country with their loot and leave us all starving and helpless.

If indeed, land reform has a negative and significant impact on productivity, the challenge is to tether redistribution to agricultural growth. To square the two, land redistribution and agriculture production, requires aligning land- and production-relations to other factors of local production systems. The focus should be on land tenancy arrangements, employment opportunities, mechanization, technology changes and capitalisation.

The real question is not whether or not to amend some sections of the constitution. Rather, it is how to amend the sections to fast-track land redistribution since the existing impediments cannot be justified. Surely certain sections need to be clearer about what needs to done and how it needs to happen to not constitute a violation. There are too many failures due to poor decisions whether contracting or delivering public services, land redistribution is a national priority that cannot be left to ambiguous processes. Whenever there is an expropriation demand, the objections that ensue highlight the fact that nobody is completely clear on the process, not least the parliamentarians.

It is not that the constitution has failed that bothers, rather that Parliament has failed to take steps. The constitution requires that the parliament take any legislative and other means to redress the injustices and inequalities of the past. Parliament has made strange and sometimes unwise choices about land legislation that they may have wanted to do differently if they could go back in time. For many, land reform has struggled to garner public support because of the subjective interpretation of legislation, a combination of excessive reliance on technical regulations and official inefficiencies. It has become clear that Parliament is neither willing nor able to exercise this prerogative.

Indeed they would have trouble running a bring-and-braai stall between them.

In this country, the parliament is bound by the constitution and it trumps all other laws. If the parliament flaunts the constitution the constitutional court will reverse it. The objectionable sections refer to expropriation and the compensation on market value taking into account the history of the land. If the lawmakers are to stick with this wording, the number of cases that justify expropriation without compensation is extremely small; parliament is bound by the legislation.

In this instance, two truths need to be told to debunk myths about the end of constitutional democracy as we know it.

First, it is a myth that the relevant section on land as it stands and proposed amendment for expropriation without compensation are substitutable, that the differences and legal reasoning merely reflect different ways of achieving the same end. Secondly, it is a myth that as a result no benefits will be gained from amending the section. The second argument is even developed into a further proposition that amending it would discredit the constitution, a reasoning which in itself is erroneous since any redrafting does not mean disavowing the constitution.

Both these myths are wrong, both are not concerned with justice and equity but with the stability of the state as an instrument of domination by a few. The proponents confuse the state as the nation and the state as the rulers of the nation. It is simply not true that amending sections of the constitution is a precursor to political anarchy. However, the constitution does not need doing away with, at least not now, but needs amending for its own public legitimacy. Switching from the bold proposition of amending sections of the constitution to allow for expropriation without compensation to the apparently safer but more measured rewording is a dramatic shift of tact. It will only muffle the animosity, but it will not silence the opposition.

By Zakes Hlatshwayo

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Uownit-SA is an online publication focused on collecting and publishing valuable and informed opinions from all the people of South Africa, published on the 15th of every month. Send us your views to contributions@uownit-sa.co.za.

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