President Cyril Ramaphosa’s advisory panel on land reform and agriculture — appointed to advise him on the politically charged land question — has strongly affirmed property rights as a cornerstone of the constitution while recommending that expropriation of land without compensation can occur in tightly defined circumstances.
The majority of the panel agreed that it is necessary to amend the constitution to make explicit the grounds for expropriation without compensation, although some panellists say that the constitution does not stand in the way of implementing land reform.
The panel started its work in 2018 and tabled the final report to cabinet last week.
On Sunday, minister of agriculture, land reform & rural development Thoko Didiza released the report to the public. The report serves as a recommendation to the government and is not binding.
As well as tackling the mechanics of expropriation without compensation, the panel also examined the slow pace of land reform, concluding that an “insufficient and inefficient” land administration system is the key blockage to better results.
Institutional reforms
The report recommends wide-ranging institutional reforms to enable faster, more effective land reform.
Ineffective land reform in the first 25 years of SA’s democracy has given rise to a call to change the constitution to allow for expropriation without compensation.
This was also endorsed by the ANC, which at its national conference in 2017 took a resolution that a change to
the constitution be investigated to enable expropriation without compensation.
Both the ANC and parliament have subsequently agreed that this will be done.
Ramaphosa’s announcement in 2018 ended his honeymoon period, muting some of the euphoria over his replacing his predecessor, Jacob Zuma, as investors fretted about property rights, with the rand, which had been strong since Ramaphosa took over, coming under pressure.
The panel report says that it is necessary to make it explicit in the constitution that there are exceptional circumstances that warrant expropriation without compensation and that the detail and content be set out in an expropriation act.
The report says it may also be necessary to amend the constitution by inserting a new section, which holds that parliament must enact this legislation determining instances that warrant expropriation without compensation. This should be done as an addition to 25 (2) of the bill of rights, which deals with property.
Such an amendment would also make clear that wholesale expropriation without compensation is not possible.
Allowing wholesale expropriation, says the panel, "would collapse the core underlying values of the constitution".
It is "highly unlikely" and "improbable" that there would be a "plethora" of circumstances that would lead to expropriation without compensation, it says.
The panel says expropriation without compensation is one of several target land expropriation strategies.
The specified conditions the panel believe would allow for it include, but are not limited to, abandoned land; hopelessly indebted land; land held purely for speculative purposes; land held by state entities and not utilised; land obtained through criminal activity; land already occupied and used by labour tenants and former labour tenants; informal settlement areas; inner-city buildings with absentee landlords; land donations (as a form of expropriation without compensation); and farm equity schemes.
The panel also recommends that the Expropriation Bill be finalised and should include more clearly the meaning of instances that would allow for zero compensation.
On the strengthening of land reform, the panel recommends that the Land Claims Court become the Land Court, and should be strengthened.
This would include appointing a permanent judge president and four permanent judges so that its capacity is strengthened.
It also recommends the establishment of a land reform fund, which is envisaged would draw on public and private sector contributions to fund land reform.
In addition, a land tax inquiry should be held to consider imposing rates on agricultural land to discourage the retention of large and unproductive landholdings.
An in-depth assessment should be done into the conditions for the application of land ceilings, which would limit an individual’s holdings.
AgriSA’s executive director, Omri van Zyl, said that if the recommendations contained in the report were implemented "to the letter, food security for all South Africans will be compromised".
He said investor and business confidence is already low "and the last thing we need is further strain on the economy and the agricultural sector".
AgriSA president Dan Kriek was a member of the Presidential Advisory Panel on Land Reform but produced an alternative report with fellow panel member Nick Serfontein. That report’s focus is on market-driven reforms rather than government solutions.
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