Since Tuesday afternoon South Africans has been talking about Parliament's adoption of a motion to change the country's Constitution so that the government can expropriate land without compensation. Mphuthumi Ntabeni takes a look at the complexities of this. He suggests that there has been some distortion of what was intended. He also gives a sneak preview of what Catholic Social Teaching says about the ownership of land.
The Economic Freedom Fighters (EFF) sponsored motion on looking into the possibility of the state expropriating land for public interest without compensation has predictably been met with mixed feelings. It has also been distorted.
Contrary to the popular narrative, the EFF did not table a motion to expropriate land, but rather to investigate the possibility of doing so. This is what they tabled:
- Review and amend section 25 of the Constitution, to make it possible for the state to expropriate land for public interest without compensation;
- Conduct public hearings to get the views of ordinary South Africans, policy makers, civil society organisations and academics about the necessity of, and mechanisms for, expropriating land without compensation;
- Propose the necessary constitutional amendments with regard to the kind of future land tenure regime needed, and for the necessity of the State to be the custodian of all South African land.
In tabling the motion the EFF also asked for the establishment of Parliament's Constitutional Review Committee, which comprises members from both Houses of Parliament, to report back to the National Assembly by 30 August 2018.
Speaking on the steps of parliament after the motion was voted for, the leader of the EFF, Julius Malema, said: “No one is going to lose his or her house, no one is going to lose his or her flat, no one is going to lose his or her factory or industry. All [that] we are saying is they will not have the ownership of the land.”
He anticipates a situation where the state is the only custodian of the land, and people lease land for private use. It is worth mentioning that this is how land administration was conducted by South African traditional societies before the arrival of white people.
The EFF argues that “…the current land reform programme has been fraught with difficulties since its inception in 1994; and that the pace of land reform has been slow, with only 8% of land transferred back to black people since 1994.”
Many have argued that the difficulties had little to do with constitutional imperatives, but rather arise out of government bureaucracy and incompetence. This suggests that it probably would have made more sense to first establish a legal commission to look at the reasons why matters of land transformation have been so slow.
The EFF claims that the ‘“property clause” protects private property rights, and requires the state to pay compensation when expropriating land … for public purpose …”
They say the property clause “makes it practically impossible for those dispossessed of their land to get justice for injustices perpetrated against them.”
Yet section 25(8) of the Constitution clearly states: “No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).”
Hence some argue that the EFF's actions are a moot point since the Constitution, as it is now, provides for the expropriation of land without compensation when the need for the common good arises.
The African National Congress (ANC), supported the EFF motion in the National Assembly (NA), based on their own resolution to expropriate land without compensation made at the ANC's electoral conference in December 2017. The ANC did, however, say that this process must not threaten food security or violate the Constitution. President Ramaphosa emphasised the intention of the ANC to go ahead with this resolution at the State of the Nation Address last month and also reiterated that food security was important in the process.
What is obvious here is that there are different interpretations and understandings of section 25 of the Constitution. Perhaps more clarification is required from the NA as to how this is being understood. It might even make more sense for section 25 to be tested in a court of law – as was the case when the EFF went to the Constitutional Court and the court instructed the NA to clarify the rules governing the dismissal of a president. After all, section 25(9) states: “Parliament must enact the legislation referred to in the subsection.” Thus the EFF could be on to something here that will save unnecessary legal court time if the legislation on this matter is further clarified.
What might Catholic Church teaching say about this? Paragraph 23 of the encyclical, Populorum Progressio, states that the right to private property is not absolute. And in the following paragraph, says “…if certain landed estates impedes the general prosperity…the common good sometimes demands their expropriation.” (Paragraph 24) Catholic Social Teaching (CST), and, in fact, Christian tradition, has never upheld private property rights as absolute and untouchable – though it recognises them.
The issue of private property has long been discussed in CST. Despite this, CST does not exclude the expropriation of land for the common good, especially in conditions that promote human rights, or can serve as a greater means of production. Pope John Paul II repeatedly stressed the principle of the universal destination of natural resources and goods. In the social encyclical, Sollicitudo Rei Socialis, though acknowledging that in regimes where private property and individual initiative are promoted, this state of affairs may develop natural resources better than collectivist or traditional regimes, Pope John Paul II went even further than his predecessors by declaring that “Private property, in fact, is under a ‘social mortgage.’”
So, it seems, CST has no problem with land expropriation that is done in a legal constitutional manner for the common good. The dangers it warns against are arbitrary laws of majoritarian populism that eventually hurt the common good by becoming authoritarian.
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