Much undue criticism has come from the parliamentary process of holding public assemblies across the country giving diverging South African constituencies the opportunity to hear and to speak on the issue of land expropriation without compensation. Mphuthumi Ntabeni reflects on the need for such public hearings in a still fledgeling constitutional democracy such as ours.
The sometimes dramatic public hearings that have been taking place across South Africa form part of the constitutional process debating the proposed amendments to Section 25 of the National Constitution dealing with property rights which will be debated in Parliament later this year.
Many are claiming that these public hearings are being hijacked by certain political parties, where, in some places, these have degenerated into chaos.
The blame for the resulting mayhem has been unjustly placed on Parliament, whose mandate it was to take the debate into the public space in order to provide the public with reasonable access and a real opportunity to contribute to the debate.
That parties, like the EFF and AgriForum, have hijacked proceedings means that they have understood the seriousness of the process and of the issue at hand. Much unlike the many couch critics and keyboard warriors who wreak havoc from the comfort of their homes but rarely, if ever, show their faces in public and roll up their sleeves.
Put plainly, the abiding mantra of democracy is that if you don’t get involved you have no right to complain.
The demands of a Constitutional Democracy
“The Constitution is not an act of government, but of people constituting government”, said Thomas Paine, one of the founding fathers of America. Hence, the need for constitutionally mandated assemblies across constituencies and special public conventions in town halls, as has been the case with the present land hearings. Forums like these are imperative to test public opinion and to fulfil the principle of a constitutional democracy, that is, the people of a land endowing the constitution with public sentiment.
In drafting our Constitution we made a major error. We have a so-called “progressive” constitution that is massively out of sync with the majority sentiment. We have a very liberal Constitution for a country where liberals account for less than 3% of the population.
Some argue that the Constitution, like the Bible, is aimed at showing the human ideals instead of recounting fallible and fantastical desires. Yet the disjuncture between the ideal and the sentimental leads to a situation where the majority refuse to own the Constitution. Instead, they see it as hostile to their zeitgeist. Given it fails to serve their wishes they pay it no respect.
When this gap is too gaping, it can easily lead to the breakdown of the rule of law. In fact, some argue that this testifies to the prevalent lawlessness in our country. Such action of the elite, deciding and imposing rules and laws on constituencies, is at the heart of the break-up of the European Union which has led to the present absurdity of Brexit in the UK.
Through these public hearings, Parliament's Rules Committee is able to gauge public opinion and not just rely on usual written submissions offered by elites. Thus, they are better able to take a balanced and informed decision on proposed constitutional amendments.
John Adams, one of the founders of the US Constitution, alerted that the Constitution can only be a pillar and standard for the rule of law if it is understood, approved and beloved by the majority. “But without this intelligence and attachment, it might as well be a kite or balloon flying in the air.”
It is therefore imperative that the hoi polloi are actively involved and encouraged to participate in constitutional drafting processes. I am convinced that the present hearings prove a need for much-increased citizenship education on the Constitution, and for greater public engagement on the many matters, such as gender, human settlement, education and of all other rights enshrined by our Constitution.
We’ve come to a stage in our country where we must admit that the laws and rights guarded in our Constitution have simply not been translatd at a practical level – even 24 years after supposedly gaining freedom for all. We need frank self-introspection that investigates this lack in progress.
It is no longer enough to say, for instance, that the Constitution, as presently worded, allows for land expropriation without compensation. If it does, then why has the government failed to realise this? And, under which circumstances could this be carried out without infringing on the property rights of individual persons?
These are the issues that need to be unequivocally clarified in our Constitution. In fact, such clarification, as professor Steve Friedman argues, would strengthen and not betray our constitution. What we must not do is succumb to the blackmail and rumour-mongering that is forcefully brought by those with vested interests in maintaining the unjust status quo, and in promoting unfounded fears about the so-called “Zimbabwe-fication” of South Africa.
Not a single political party, of those who support the EFF's parliamentary motion, has indicated their intention to follow the arbitrary nature of land grabs as previously experienced in Zimbabwe. In fact, the very reason for supporting the motion betrays this popular, yet falsely held, belief as it ensures that this process is carried out in a constitutional manner done in obedience to the rule of law.
I applaud the move by churches that have gone to court to challenge the plans by the board of the Ingonyama Trust to convert “permission to occupy” certificates into residential leases.
Among others, the applicants include the KwaZulu-Natal Council of Churches, the Catholic Church through the leadership of Cardinal Napier, as well as the Lutheran Church and other faith bodies.
People who live under the Interim Protection of Informal Land Rights Act, the majority of whom live in rural areas, have what is called a “permission to occupy certificate”. Though not a title deed, this certificate allows a person to occupy the land indefinitely from which they cannot be moved without consent.
The Ingonyama Trust wants to convert these into lease agreements, meaning that it wants to reserve the right to evict those it considers undesirable. Those who fall behind on their rent would be obvious contenders in this category.
It is an open secret that some chiefs in the rural areas demand unofficial payments when they’re allocating land in their trust. Now the Ingonyama Trust wants to formalise this by acting as landlord.
In other cases, chiefs have made deals with game farms and mining companies, sometimes to the detriment of local people. The Xolobeni case in the Wild Coast is but one extreme example of Government seeking to expropriate land from local villagers to honour the mining rights it had awarded to an Australian mining company.
The trust has claimed mining royalties as revenue, like the lease it signed with Richards Bay Minerals to mine 10 000 hectares in the Mthunzini area without consulting the community as mandated by law.
This has compounded the issues because the local community is opposed to mining given the social and environmental damage it does. Already, they are complaining that the mining activities had polluted their waters, shaken the foundations of their homes leaving the structures unstable and resulted in an increase in health problems. Added to this, is the clear absence of any economic or social progress following mining.
The Ingonyama Trust is part of a broader problem that serves no purpose whatsoever in alleviating the plight of the poorest of the poor. It is perhaps time we revisit its constitutionality since it was secretly established by the De Klerk government and Buthelezi with violent blackmail negotiations prior to 1994 elections.
The Makhondo Game Farm in Limpopo is a test case for state-land expropriation. Though the owners are willing to sell, they’re demanding R200 million for two farms. The state is offering R50 million based on its property evaluation formula but this brought negotiations to a halt.
The stalemate resulted in the state issuing two final orders for the expropriation of that land based on section 42E of the Restitution of Land Rights Act. The government also wants the courts to clarify what constitutes “just and equitable” compensation. The land claim by the Musekwa tribe of that area was lodged in 1996 but has been without resolve.
These are just some examples that show the urgency of clarifying the Constitutional purview for expropriating land without compensation. It is also at the root of shaping state policy on matters of the environment, social development and the economic and political processes of governance.