Out Malema-ing Malema

John Kane-Berman says ANC legislation is moving towards allowing for land expropriation without compensation

ANC determined to keep one jump ahead of the EFF on land 

Speaking before the Cape Chamber of Commerce and Industry on 12th February, Julius Malema, leader of the Economic Freedom Fighters (EFF), reiterated his organisation's policy that land should be nationalised without compensation. State-owned land, he has previously explained, could then be leased back to users for a maximum of 25 years.

If Mr Malema were ever to come to power, he might find that the African National Congress (ANC) has already enacted the laws enabling him to do what he proposes. Five pieces of legislation are relevant.    

Currently winding its way through Parliament is an Expropriation Bill in terms of which no investor will be entitled to compensation if the state takes his property as "custodian" for someone else. The bill gives effect to a judgement handed down by the Constitutional Court in 2013 in the case of Agri SA v minister of minerals and energy. The court held that the state does not "acquire" ownership of property (in this case an unused mining right) where it takes that property merely as custodian for the people of South Africa. Since the state does not itself acquire ownership, no compensation is payable. At the time the court said that this principle applied only in the Agri SA case, but the bill gives the ruling wider application.   

Towards the end of last year President Jacob Zuma signed into law a new Protection of Investment Act. An earlier version of this piece of legislation provided that no compensation would be paid if the state acquired land or other property not in order to own it but as custodian for others. Removed after numerous objections to it, the provision does not appear in the Investment Act. It has, however, been transplanted into the Expropriation Bill.   

The third piece of legislation is the Preservation and Development of Agricultural Land Framework Bill of 2014. This provides for the state to take custodianship of all agricultural land and then issue farmers with licences to farm, subject to such conditions as the minister of agriculture, forestry, and fisheries may determine. The fourth piece of legislation is the Regulation of Land Holdings Bill, soon to go to the Cabinet. Among other things, it imposes ceilings on the sizes of farms, any excess to be expropriated.

Fifth up is the 2014 statute extending the deadline for lodging of new land claims to 2019. This applies to people who missed the 1998 deadline; according to Mr Zuma, 120 000 new claims have been lodged. More than 8 000 lodged before 1998 have yet to be settled. Meeting all these claims will cost tens of billions, money the government does not have. Some agricultural organisations believe the extension will tie up all new and outstanding claims in bureaucracy and legal contestation and so delay them indefinitely. But if the Preservation Bill and the Expropriation Bill both reach the Statute Book, the state would be able to avoid having to pay compensation simply by taking the claimed land into state "custodianship" and then leasing it back either to the original landowners or to land claimants.

The ANC, it seems, wishes to keep one jump ahead of the EFF on the land issue.

* John Kane-Berman is a policy fellow at the South African Institute of Race Relations, a think-tank promoting political and economic freedom.