The ANC has a section 25 amendment dilemma

Farm. Picture: GETTY / AFP / File / MARK WILSON

Farm. Picture: GETTY / AFP / File / MARK WILSON

An amendment to allow for land expropriation without compensation could be successfully challenged in the Constitutional Court.

The ANC may not need its offshoot, the Economic Freedom Fighters, to make good on its promise to expropriate land without compensation, experts suggest.

According to political analyst Steven Friedman, what appeared to be a step towards a radical amendment of the Constitution last year could actually fizzle down to a window-dressed version of the status quo.

Last week’s election garnered results which left the ANC 19 seats weaker in parliament, now occupying 230 seats. The EFF nearly doubled its power, winning 44 seats and suggesting that with the help of the Red Berets, the ANC could get the two-thirds majority vote it needed to enact its December 2017 resolution to amend section 25 of the Constitution, in order to expropriate land without compensation (EWC).

Other opposition parties like the Democratic Alliance (DA) and the Inkatha Freedom Party (IFP) are against amending section 25, with the former arguing for the protection of property rights and the latter arguing for expropriation with compensation.

Friedman sees two scenarios in the post-election period, one of which would see the ANC not needing the EFF to enact EWC and the other “highly probable” scenario, in which an amendment is successfully challenged in the Constitutional Court.

“What the smaller parties can do, or any interest group that don’t like the idea, is go to the Constitutional Court and say, we don’t need a two-thirds majority, we need a 75% majority,” he said. “This view has been expressed by some lobby groups, based on the fact that the Constitution says that a fundamental right can only be taken away by a 75% majority in parliament, and there is a high probability that this case could land up in the Constitutional Court.”

Friedman added that even in the case where a two-thirds majority was deemed enough to amend section 25, the ANC and EFF may not be on the same page when it comes to how this legislation would be interpreted.

In fact, he said, the ANC didn’t share the EFF’s hunger for expropriation without compensation.

The EFF has repeatedly gone on record stating that government should be the custodian of land, a far more extreme approach than proposed by the ANC.

Former public protector Thuli Madonsela argued recently at a women only conference on land – comprising of law experts from around the country – that it was possible for parliamentarians to agree to an amendment of section 25 which did not violate property rights.

“It depends on what is contained in the clause and the nature of the amendment,” she said.

“If the amendment simply clarifies the circumstances under which land may be expropriated without compensation, that on its own would not necessarily translate to a violation of the Constitution.”

simnikiweh@citizen.co.za

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