The director at the Centre for Constitutional Rights, Phephelaphi Dube said the property clause, Section 25, of the Constitution is not an impediment to land reform in the current state that it is written in.
She was speaking on Power FM following the adoption by parliament of a motion for land expropriation without compensation tabled by the EFF. The motion that was passed had been amended by the ruling party.
Dube said the public discourse around land expropriation without compensation does not show a clear understanding of the Constitution.
“I just want to put it on record that the Constitution does not protect property rights, it only protects your property from arbitrary deprivation in the event that your property is expropriated for a public purpose or in the public interest, and even then, it is always against compensation which is just and equitable,” Dube said.
She said another misconception is that the Constitution states that compensation should be at market value.
“I think that is hardly true because the Constitution just says that compensation should be just and equitable and you need to consider certain factors,” Dube said.
She said these factors include:
- The use of the property
- The history of how the property was acquired
- The extent of direct state investment in the property
- And the purpose of the expropriation is also considered.
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Dube said it would be highly unlikely for properties that were acquired from the government during apartheid law to receive market value compensation once expropriated.
“If those properties are expropriated for redistribution then it is highly unlikely that those properties will be compensated at market value because the idea behind expropriation is not that you should make a profit but that you should be put in the same position that you were in before the expropriation, so it would be unjust and inequitable if a person receives market value if they received their property through those kinds of circumstances,” she said.
She added that the Constitution already makes provisions for land reform which, in terms of the Constitution, has three categories which are, land redistribution, land restitution and security of tenure.
Land redistribution, Dube said, is when the state acquires any kind of land, including agricultural land, from white owners and it is given to black owners, but she said most of the land that has been expropriated and redistributed is agricultural.
She said the National Development Plan set the target that 30% of agricultural land must be transferred to black owners by 2030.
“But of course I think we are lacking on this because I think the government statistics show that only 8% of agricultural land which has been transferred,” she said.
Dube said land restitution refers to individuals or communities that were previously dispossessed of property on or before 1913 when the Native Land Act was passed during the then Union of South Africa.
“So this is rights-based. It simply means that property was not yours and it was unlawfully dispossessed due to apartheid and any other racially discriminatory laws,” she said.
She said the third aspect of land reform is tenure security which refers to examples such as people living in informal settlements as well as labour tenants.
“Labour tenants refers to a law that was passed in the late sixties which just meant that people were basically slaves on farms in that they could work on the farm on condition that they stayed on that farm, and so for a lot of labour tenants they lost land which they previously held and they were forced to continue working on farms in order to continue staying on those farms,” Dube said.
She added that there are farm workers who have only lived on farms for generations who are also protected by the law that they are not arbitrarily evicted from those farms.
The radio interview had been joined by Deputy Chief Executive of Afriforum, Ernest Roets who said the motion passed in parliament is an assault on property rights and that implementation of the policy could lead to current owners violently defending their property as had been the case in Zimbabwe.
He further said implementing the policy within the perimeters of the law, in a just and equitable manner, would mean there was nothing wrong with apartheid laws that ensured that black people were dispossessed of their land through legislated policies.
“There is a difference between simply executing what the law says and whether that law is, in the first place, is factually correct and in the second place, morally correct,” he said.
Roets said utterances by the ruling party and the EFF that the state should own all property would lead South Africa down the same path as Zimbabwe, Venezuela and North Korea.
“We will be approaching the international investors to ask them to put pressure on the South African government, to say to the South African government,” he said.