Certainty is needed around legislation outlining the conditions for the expropriation of land without compensation in order to “allay fears among investors”, former public protector Thuli Madonsela said on Wednesday.
She said she supported President Cyril Ramaphosa’s push to finalise legislation by the end of the year.
One of the criticisms around the proposed constitutional amendment, which is meant to address skewed land ownership dating back to the colonial and apartheid eras, is that it could rattle investors and hurt SA’s already struggling economy.
“Once the constitution has been clarified, then the law can be clarified, then people can know what risk exists for their properties and what risk does not exist and if there is any risk, how to mitigate that risk,” Madonsela said.
‘Explosive issue’
“For ordinary people, the sooner we have a constitutional clarification on this, the easier it becomes for us to get on the road towards holistic land reform ... I think land, for me, is an explosive issue. The politicians may be handling it for whatever reason but if it’s not handled, it has a potential to derail democracy.”
Madonsela was responding to Ramaphosa’s comments earlier this week that in 2020 the ANC is “going to have to finalise the legislation and the constitutional construct on the land question”.
Ramaphosa has also called on the business community to participate in a “much more proactive manner, including through proposals to donate unused or surplus land”.
The business community should also “be part of the solution when it comes to this most important issue”.
Speaking to Business Day at a workshop on the new expropriation bill and the proposed amendments to section 25 of the constitution, hosted by the SA research chair in property law at Stellenbosch University, Madonsela said that it is important to know that the proposal is “just the starting point and we should know that this is not the solution, but part of the process of a solution”.
Meanwhile, other experts at the workshop warned that Ramaphosa’s intention to finalise the legislation may be overly ambitious given the complexities attached to land reform in SA.
“It is imperative to get policy certainty ... but with land reform so encompassing and with a 10-year gap in government policy on land reform, it is ambitious to think that this will be done within a year,” associate professor of law at North-West University Elmien du Plessis told Business Day.
She added that the bill, which defines what categories of land can be expropriated without compensation, “might be promulgated this year, and possibly the constitutional amendment, but as far as other legislation is concerned it still needs drafting and deliberation”.
“Apart from that, changing or promulgating the legislation does not guarantee that the state will move to action, to actually do the reforms that they could have and should have done the past 25 years,” she said, adding that the constitutional amendment “will also not fix the administrative collapse in land reform”.
Constitutional law expert Phephelaphi Dube agreed, adding that Ramaphosa’s “year-end timeframe is not feasible, given the technical and highly contested nature of creating a new expropriation landscape for SA” — and suggesting that the proposed amendment may be subject to legal challenge.
“There may also be legal challenges arising out of the fact that ... the 18th Amendment bill gazetted on December 13 gives insufficient time for public comment, infringing on the constitutional requirement for public participation. Ultimately, any attempts at political expediency may very well land themselves at credible legal challenges.”
She added: “As it stands, the Constitution 18th Amendment Bill and the Expropriation Bill, which have both been published for comments, will be the key legislative instruments to give effect to circumstances under which certain categories of land may be expropriated with nil compensation. However, both are vaguely drafted, giving rise to uncertainty.”
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.