The ad hoc committee amending Section 25 of the Constitution to allow for expropriation of land without compensation has reached its sell-by date without reaching a resolution.
With the ANC and EFF still at odds over the wording of the draft bill, the committee will now have to apply for a 30-day extension.
The ANC needs the votes of the EFF to pass an amendment as between the two they have the numbers to adopt the Constitutional 18th Amendment Bill.
Chairperson had asked the parties to hold bilateral meetings to find common ground on the form of the amendment, but to no avail. Motshekga said should the 30-day extension be granted, the new deadline will coincide with the parliamentary constituency recess period, and a special sitting of Parliament would be requested.
“Our people have been waiting very long for this and we cannot delay it unnecessarily,” he noted.
The original amendment bill made provision for the courts to determine the amount of compensation to be paid, including nil compensation as a point of departure.
The ANC said the courts should only be involved if there is a disagreement between the state and the owner of the expropriated property.
The party also proposed that any reference to the courts should be removed from Section 25 (3)(A) and that “specific circumstances” should be amended to only read “circumstances”.
Meanwhile the EFF proposed that Section 25 (2) should include that the property may be expropriated “without compensation”, and 25 (2)(a) should read “only in terms of law of general application” and 25 (2)(b) “for a public purpose or in the public interest”.
Their proposed amendment had no role for the courts and proposed that the state should be the custodian of all land.
University of Cape Town’s Director of the Land and Accountability Research Centre (Larc) Nolundi Luwaya said there is some doubt on whether the amendment is necessary as it is not clear what the allowance for expropriation without compensation really means for communities that have been waiting for the restitution process for over 20 years.
“Our feeling is that the courts haven’t yet stretched section 25 in it’s current format to determine whether it would hold and a actually allow for expropriation without compensation.”
“However there is a promise that the state and the department of land reform is using this as an opportunity to advance land reform more actively.”
Luwaya said the circumstances under which expropriation without compensation would be possible perhaps if they were outlined or done in the legislation rather than the constitution itself.
“Part of our worry is that it this part of a hyper noise that will have little impact on the ground in terms of advancing land reform in a concrete way,” she said.
“It would be very helpful if this kind of thinking around expropriation would be coupled with more solution orientated thinking around the other land reform projects.”
However, Business Leadership South Africa CEO Busi Mavuso, said the expropriation bill could fail many more than just land-owners as it is the most consequential of the legislation and amendments being considered.
“It goes far beyond the main driver of the reform: land reform. Indeed, my biggest issue with the Expropriation Bill is that it explicitly defines property as ‘not limited to land’,” she said in her weekly newsletter.
“This means everything is up for grabs: from moveable and financial assets to intellectual property.”