Does race influence expropriation and compensation?

Advocate Tembeka Ngcukaitobi is an outspoken political proponent of “nil” compensation being paid to some white people in cases of land expropriation.

In a recent interview, Ngcukaitobi, who is closely associated with the EFF, criticised aspects of the Expropriation Act, suggesting it contradicted itself and lacked revolutionary mettle.

However, he was mainly positive about the wide, new discretion given to judges to decide when a person should get “market value” and when they should get “nil” for their property.

Ngcukaitobi said Section 25 of the constitution was not really a “property clause”, but “is actually an anti-property clause”.

Section 25 is supposed to protect everyone, stating: “No one may be deprived of property except in terms of law of general application” and guarantees expropriation will come after “just and equitable” compensation.

How could it be an “anti-property clause”? To explain, Ngcukaitobi said: “I usually make these two examples. Take a white man….”

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It is worth pausing on the fact that Ngcukaitobi’s account of how judges should think about ordering “nil” compensation begins with race, specifically “white”.

“Take a white man who has received land as a consequence of inheritance. But we can trace from the arrival of Jan van Riebeeck that this land was acquired improperly by violence, conquest, theft, everything associated with colonialism.

“But they are not using the land. They are living in Germany. In that area is a large community that is in need of housing.”

That should trigger “nil compensation” on Ngcukaitobi’s reading “because the land is not productively used”.

Ngcukaitobi’s second example is a real one, Xolobeni, where minerals were discovered under “a black community that is a subject of historical dispossession”. In that case, “justice and equity would demand that you pay them market value”.

He said: “What the Act enables judges to do is take my Xolobeni example and pay market-based compensation and take my German property owner example and pay nil compensation.”

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But what really motivates the “nil” and “market-value” orders? On the one hand, Ngcukaitobi said “nil” was justified because the land “is not productively used”, which fits with the Act.

This is already alarming. The new law says leaving a property for an unspecified amount of time – a month, a year, a decade? – triggers “nil” compensation. The international norm of setting a timeframe for property rights to lapse from abandonment has been abandoned.

But on the other hand, if that is all he meant to convey then his story could have been shorter. He could have said “unproductive property can be expropriated for ‘nil’ compensation regardless of the race of the owner, means of acquisition, etc.

But he did not say that. Why? It must be because the other parts of his story mattered too.

If his story was meant to highlight only the factors that matter explicitly according to the new law, then why not use a black person in his example?

“Suppose a black woman” he might have said “inherited a single asset from her adopted parents, namely ownership of land taken by whites shortly after Jan van Riebeek, etc.

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“If she moves to Uganda for a few years and does not rent out her empty house, even though others nearby need housing, then her house must be taken and she must get nothing, because that is what justice and equity demand.”

Ngcukaitobi did not say that either. Why not? Why not clarify whether race is, or is not, a factor for “nil” compensation?

This matters partly because the law states that “nil” compensation factors are “not limited” to those listed. This also matters because of Ngcukaitobi’s attitudes to race.

He also said “you don’t have to be a researcher. Drive from here to Bloemfontein, or Bloemfontein to the Eastern Cape. You see so much land lying fallow. And it is in the hands of white people.”

Amazingly, he seems to say that anyone, without research, can tell land is owned by white people just by seeing that it is fallow. Is that prejudice, and, if so, how far does it go?

Ngcukaitobi is one of the most influential “nil” compensation advocates and a former acting judge on the Land Claims Court.

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Imagine if he gave an order of “nil” compensation, and it began like this: “You are a white man of 60 years who benefited from apartheid. Your father was also a white man, and so was his. They also benefited.”

This could either be what lawyers call “obiter dicta”, or a determining factor for nil compensation. How would you know?

This question would not have come up if the Act had stated that properties taken by the apartheid government would be subject to X% reduction; with an additional Y% reduction if they were passed on through inheritance; and that emigree landowners face a Z% reduction, etc.

Numerically clear formulas are how other countries legislated for land reform, but not here. Here there is an open-ended list of things judges can use to determine “nil” compensation.

I am not suggesting white people will be the only, or the main victims of “nil” compensation. I have seen land ripped away from black farmers with the support of corrupt state officials. But Ngcukaitobi’s speech is a clear warning of what a wide scope discretion allows.

Judicial independence should save us. But the Land Court has just replaced the Land Claims Court and it allows for judges to be drawn from outside the usual pool, outside the usual procedure and for “hearsay” evidence to settle cases.

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It has the power to order “nil” compensation with reasoning much like that of Ngcukaitobi’s.