The ruling party, the ANC does not support a clause in the controversial land expropriation bill which would give the courts the power to determine which land should be taken without compensation – but allowed it to be drafted that way so that the proposal could be gazetted without controversy.
The draft bill was published for public comment on 6 December. It aims to amend the Constitution to provide that, where land and any improvements on it are expropriated for the purposes of land reform, the amount of compensation payable may be nil.
However, the bill itself does not specify the circumstances when no compensation may be given.
Instead, it states that a separate piece of national legislation must set out the specific circumstances where a court may determine that the amount of compensation is nil.
In its current format, Section 25(2)(b) states that:
(2) Property may be expropriated only in terms of law of general application-
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
The proposed amendment adds:
(3A) a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.
However, in an interview on ENCA, chairperson of Parliament’s ad-hoc committee on the constitutional amendment, Mathole Motshekga said that the ANC does not support the proposed amendment.
“We had to select a formulation that would be acceptable to all the political parties so that we don’t derail the process. But that formulation is subject to engagement by political parties and the people of South Africa as a whole.
“The ANC has taken the lead to say ‘no, we do not support that formulation’ – that power should be given to the executive,” he said.
Motshekga said the proposed formulation was worded as it is to avoid controversy, and to allow the proposed amendment to be gazetted. Doing it any other way would have derailed the process, he said.
When asked if the ANC government was being “sneaky” in gazetting a proposed amendment that fully intended on changing in the future, Motshekga did not respond, only saying that the courts would take too long to make a decision.
“We have the experience that the court processes are arduous. They take time, they require resources,” Motshekhga said.
“But the executive is a democratic government, elected by the people of South Africa, they represent the people of South Africa and they must govern.
“We are not excluding the role of courts, but we are not giving the courts the first opportunity to decide, because that will last another 25-years and the people of South Africa cannot wait for another 25-years to get a resolution to this matter,” he said.
Comments closing soon
Motshekga also said that no extension would be given for submissions to comment on the bill, which was published in December, ahead of the holidays.
The DA has previously criticised the bill, saying that it is unclear how it defines land (appearing to include property – which has a different legal definition – in with its claims), while also bypassing requirements for a two-third majority vote by putting the powers over land expropriation in separate legislation, outside of the Constutional amendment.
The party called the publishing of the bill and the truncated comment period because of the holidays, an attempt by the ANC to rush through the changes.
Submissions for comment close at the end of January 2020.
Motshekga said the deadline is not the end of the discussion on land expropriation, with a nation-wide road show set to take place in February to hold public hearings.
“We will listen to all South Africans to give them an ample opportunity to give inputs,” he said.
You can watch the full interview below: