The ANC’s surprise proposal to amend a bill to give the executive more power to decide whether the state will pay for land it expropriates is set to prompt more legal challenges.
This is amid fears that SA’s land reform process will degenerate and all but mirror Zimbabwe’s chaotic attempts to address skewed land ownership patterns dating back to the colonial era. The uncertainty around land reform will undoubtedly deter investors, derail efforts to revive SA’s struggling economy and threaten food security.
The catastrophic land grabs in Zimbabwe, which were sanctioned by that country’s executive, resulted in an economic and social crisis from which it has struggled to recover. Under former president Robert Mugabe’s land reform programme in 2000 and 2001, thousands of white farmers were forced from their farms, often violently.
Landowners should embrace this proposal to fast-track land reform because further delays may lead to the kind of land grabs that took place in Zimbabwe.
However, in 2019 the Zimbabwean government said it will start paying compensation to many white farmers who lost land, as it ramps up efforts to mend ties with the West and revive its economy. The Zimbabwean government set aside $17.5m in the 2019 budget for the compensation drive.
Providing the rationale for the drastic change giving the executive more power to decide on compensation, the ANC’s Mathole Motshekga, who chairs parliament’s ad hoc committee on land reform, which is tasked with redrafting the property clause of the constitution, said last week that if the courts are to determine compensation “it will take another 25 or 50 years to sort out land reform”.
Ironically, he warned that should the new proposal not be adopted, SA could experience land grabs similar to those in Zimbabwe as land hunger worsened.
“The minister can make the decision, determine the price — that does not exclude the jurisdiction of the courts. Aggrieved parties may go to the courts afterwards and say ‘I am not satisfied with this’. The court will be an arbiter,” Motshekga said in an interview with the Sunday Times.
He told the publication that landowners should embrace this proposal to fast-track land reform because further delays may lead to the kind of land grabs that took place in Zimbabwe.
“Landowners who have seen the example of Zimbabwe should be more supportive of this process because you don’t want groups of people invading the land. This is an orderly process. If they don’t support this they are opening themselves up to the law of the jungle. We don’t want a banana republic and we don’t want the law of the jungle,” he said.
But giving the executive more power to decide on whether compensation is to be paid is likely to lead to more chaos and court challenges. Think-tank the Institute for Race Relations (IRR), which has already said it would launch a legal bid to challenge major procedural shortcomings in the parliamentary process redrafting section 25 of the constitution, or the property clause, says the ANC’s latest proposal is problematic.
“If this change is made, the courts will no longer be able to adjudicate on the ‘nil’ (or other) compensation to be paid,” the IRR’s Michael Morris says.
He points out that the courts will still be able to review the administrative decisions made by the executive and set these aside if administrative justice norms have not been met. “But the courts will not be able to replace such flawed administrative decisions with their own rulings as to what compensation should be paid. This will take us back to what the 2008 Expropriation Bill tried to provide,” Morris says.
Under that bill, the courts could approve or disapprove the amount of compensation decided by the executive but could never decide the matter for themselves.
Political analyst Daniel Silke says the ANC’s proposal, which the EFF and the DA have opposed, will certainly lead to court challenges should it somehow be adopted, since courts are generally the final arbiter. The ANC will need the support of other opposition parties to push through the amendment. The DA and the EFF oppose the proposed amendment to give the executive more power to decide on compensation matters.
Silke suggests that the ANC’s drive to shift arbitration powers from the courts to the executive is populist and indicative of the divisions within the party ahead of the local government elections.
“This will usher in a constitutional crisis, but we are not there yet. However, this suggests that the populist faction within the ANC has the upper hand ... as the party moves [to stop the loss of votes] to the EFF ahead of the local government elections,” says Silke.
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.