Parliament’s ad hoc committee tasked with amending section 25 of the constitution — the property clause — wants to complete a first draft amendment to expropriate land without compensation later this week amid calls by the DA for a thorough socio-economic impact assessment of the proposed law on the economy.
There are sharp differences, however, between the ANC and the EFF on the exact wording of the proposed amendment that has spooked investors and polarised the nation. This means it is unlikely to be adopted by the National Assembly since the ANC needs the support of the EFF to reach the two-thirds threshold needed to pass the amendment. The two parties differ particularly on the issue of state custodianship of land, in other words nationalisation, and compensation to be paid.
The push for expropriation without compensation has raised concerns about the security of tenure among investors and critics, who also argue that the issue is not just about land but about all assets, including pensions and even medical aid contributions.
The ad hoc committee has to submit a final draft to the National Assembly by the end of August.
Committee chair Mathole Motshekga said on Friday the committee requested parliament’s legal services to use the formal positions that various political parties made available on the matter, in order to formalise the draft amendments.
He said the committee will meet on Friday to finalise the wording of the text that will give effect to the amendments. He said this will give political parties a further opportunity to decide on whether they would be willing to move from their original positions on the amendments.
“The ANC has a text that they believe can be published. The EFF believe they have a text that can be published ... those texts must be taken to parliamentary legal services so that they can look into the technical aspects and then when we meet we will look at the political inputs,” Motshekga said.
While the ANC could use its majority to ensure that the report reflecting its stance is adopted at committee level, it will not be able to pass it through the National Assembly without the EFF’s support.
Two weeks ago, the EFF was pushing to meet the ANC’s senior leaders outside parliament but the governing party apparently rebuffed the red berets’ advances, signalling reluctance to shift much from its position.
On Friday, ANC MP Regina Lesoma presented the ANC’s version of the amendment showing that the party was largely still sticking to its guns. On the issue of custodianship, its rather ambiguous amendment states that the land is “the common heritage of all citizens that the state must safeguard for future generations”.
Lesoma said it proposed that the state must take “reasonable legislative and other measures within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis”. Furthermore, there will be “specific” circumstances where a court may determine that the amount of compensation is nil. It further proposed to insert a subsection so as to provide that where land and any improvements thereon are expropriated for purposes of land reform as contemplated, that the amount of compensation may be nil.
In broad terms, the party remains in support of mixed land ownership: private, state and communal tenure.
The EFF, the third-largest party in parliament, maintains the amendment should categorically state that all land will be under state custodianship and no compensation must be paid. It also does not envisage a role for the courts.
“Land is a natural heritage and a common ownership of the state. Custodianship must be established in the current amendment,” EFF deputy leader Floyd Shivambu said on Friday. He said not placing all land under state custodianship would delay land reform, with court battles the order of the day.
“It will take a minimum seven years to redistribute a single piece of land. When [we are expropriating and redistributing land] in the public interest there must be no negotiation,” Shivambu said. He added that custodianship is different from nationalisation as it means that the state will merely be holding onto the land for the people.
The DA, SA’s main opposition party, remains opposed to any amendment.
DA MP Annelie Lotriet said reducing the courts’ role in determining when compensation may be nil will take away any protection property owners have when their property is expropriated. She said this will open the door for arbitrary circumstances in determining when compensation may be nil.
Lotriet also highlighted that the financial impact of expropriation without compensation, and specifically on the property market, had not been considered by parliament.
“Is there any clarity on who will be held responsible for any bonds on properties? What will happen in instances where property has been used as collateral for loans? These are the things that we must have clarity on before we add that to the constitution,” she said.
On Sunday, Lotriet said the party will submit a formal request to the socio-economic impact assessment unit in the presidency asking that they conduct a risk assessment of the effect that expropriation of land without compensation will have on the economy.
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