How Maite plans to expropriate land without compensation

In one of her few public engagements since being appointed as Rural Development and Land Reform minister in February, Maite Nkoana-Mashabane has nailed her colours to the mast on SA’s hot-button issue of expropriation of land without compensation.

Nkoana-Mashabane is willing to expropriate land without compensation even before a Constitutional Review Committee completes its work on the merits of the expropriation proposal.

“If we need to expropriate the land, then we are going to do that because it is in the Constitution. There are already elements in the Constitution that say if you are speculating on a piece of land [for development] that should feed people, then we can’t wait for that. We have to expropriate.”

Nkoana-Mashabane, who was Minister of International Relations and Cooperation from 2009, was speaking at a national dialogue on Tuesday on the controversial proposal.

She has taken umbrage at the fact that the state has spent R54 billion on land reform and restitution since 1994 and yet only 1.2% of black individuals directly own SA’s rural land and 7% of formally registered property in town and cities.  These patterns were recently unveiled in a land audit undertaken by her department.

The proposal to expropriate land without compensation was a resolution taken at the ANC’s 54^th national elective conference in December 2017. To do this, it implored the government to begin the process to amend Section 25 of the Constitution.

After MPs voted in favour of a motion to begin a process to amend Section 25, the matter was sent to the Constitutional Review Committee, which will review whether expropriation without compensation is prudent. The committee has to report back to Parliament by August 31 2018.

Nkoana-Mashabane is prepared to bypass the work of the committee in cases where her department sees it fit to expropriate land without compensation. Such extreme cases, she said, will be when food security is threatened.

“There was not even an ANC conference or any meetings held where it was said that we must wait until the committee finished its work. So, we are coming for expropriation,” she said.

Her stance is in contrast to that adopted by President Cyril Ramaphosa, who has been at pains to explain that the committee must be given space to do its work before land is expropriated without compensation – amid growing uncertainty over property rights in SA.

The controversial proposal on expropriating land has already resulted in boiling race relations and the illegal occupation of land across South Africa by supporters of the Economic Freedom Fighters.

No compensation

Under Section 25 (2) of the Constitution, the state can expropriate land “in terms of general law application – (a) for a public purpose or in the public interest; (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.”

In the event of expropriation, the amount of compensation to the landowner must be “just and equitable” while balancing public interest and the interest of those affected. Compensation must take account of – “(a) the current use of the property; (b) the history of acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.”

Jeremy Cronin, the deputy Minister of Public Works, said in certain circumstances it would be “just and equitable” for the compensation amount to be zero – thus paving the way for the state to expropriate without compensation under the current Constitution.

“Market value for compensation can be considered but there is no obligation for it to be considered. In the literal reading of the property clause [Section 25] landowners could get zero,” he told Moneyweb.

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