ANC statement on land reform

8 December 2021

The African National Congress notes the outcome of the National Assembly on the proposal to amend Section 25 of the Constitution to allow Expropriation Without Compensation.

Rejection of Custodianship:

The ANC reiterates its policy position on Land Reform: our resolution on Land Reform at the 54 National Conference does not set a Constitutional Amendment as a threshold for expropriation without compensation. The ANC's concession that the Constitution could be amended by making explicit what is implicit. This should not be conflated with a position that seeks to project a constitutional amendment as a panacea to land reform.

Our conference resolution recognised that we must pursue with greater determination a mixed program of land reform and rural development to enable radical socio-economic transformation.

Inspite of this our proposal included a clause on transitional custodianship to ensure that whilst the land will be in transition to the beneficiaries, it is under the custody of the state accommodate various propositions within the framework of our policy on land reform. Our proposal on transitional custodian us evidently not afforded any consideration.

Reaffirming our conference resolution

Our conference put forward land expropriation without compensation as one of many mechanisms that could affect land reform and redistribution. Notably, the conference further mandated that the mechanisms of implementing this resolution must not undermine future investment in the economy or damage agricultural production and food security.

Furthermore, our interventions must not cause harm to other sectors of the economy.

Custodianship, as trumpeted by other parties, does not meet the requirements of our conference resolutions.

Our Land Reform program must be evaluated against three elements:

Increasing Tenure Security, Land Restitution and Land Redistribution.

Over and above these elements, our conference resolution set out the following tasks, which must be completed.

Ensure active measures are put in place to drive land redistribution, such as a land tax, support for black farmers and preferential allocation of water rights and infrastructure provisions.

Implement effective programmes to increase training and support measures to ensure the success of land reform beneficiaries.

Ensure land reform enhances food security for low-income families and maintains food security for South Africa.

Empower local governments to effectively advance land reform in their areas for agricultural and other purposes.

Accelerate the rolling out of title deeds to black South Africans to guarantee their security of tenure and provide them with financial collateral instruments.

Democratise control and administration of areas under communal land tenure.

Progress has been made in pursuit of the Nasrec resolution.

The Expropriation Bill is before parliament, and public hearings have been concluded; this Bill will make it explicit that the expropriation of property for a public purpose or in the public interest with nill compensation where necessary. Custodianship will not result in fulfilling these set tasks by our national conference.

We are clear that expropriation without compensation would apply under the following circumstances:

Where the land is not being used and the owner's primary purpose is not to develop the land or use it to generate income, but to benefit from the appreciation of its market value;

where an organ of state holds land that it is not using for its core functions and is not reasonably likely to need the land for its future activities in that regard, and the organ of the state acquired the land for no consideration

notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), where an owner has abandoned land by failing to exercise control over it;

where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and

When the nature or condition of the property poses a health, safety or physical risk to persons or other property. Land Court Bill & Land Redistribution and Communal land bill

Parliament is currently seized with the Land Court Bill, which establishes Land Court and a Land Court of Appeal; these institutions will provide for mediation and arbitration procedures on all land disputes. The Bills on land redistribution and Communal land rights are imminent.

On the question of nil compensation v without compensation:

In its approach to these issues, the ANC is fully cognisant of the prominent role which international law played in the struggle to abolish apartheid and dismantle its grip on South Africa. As a result, it occupies a special place in the South African legal system since the transition to democracy and features our Constitution prominently.

As such, we are not exempt from international law's prescripts and have a legal duty to consider international law when interpreting the law. The distinction between lawful and unlawful expropriation is well established in international law, and the significance of such a distinction has been noticed and applied to the amount of compensation by international decision-makers

In line with our Ready to Govern policy framework, the ANC must make decisions on a balance of evidence when implementing Conference resolutions.

This entails weighing up the facts and deciding of the possibility and the reality of its implementation, failure to do so may render resolutions outside the realm of legal jurisprudence, which could render a resolution null and void. While the ANC's proposal failed in the National Assembly, the past three years were by no means a waste of time.

We were under instruction from the NASREC conference to implement the resolution and this was done in a responsible and consultative manner. While our democratic system has not delivered the intended outcome land reform was again highlighted as a critical aspect of our democratic transformation.

The debate also allowed the nation to explore various avenues of acceleration land reform. One of such innovative ideas was noted in the President's 2021 SONA, the Land reform and Agriculture Agency. The ANC led government has recently released an additional 700 000 hectors of land for beneficiaries of land reform.

There has also been crucial legislative work, such as Land Donation Policy and Beneficiary Selection Criteria, which seek to ensure a fair and efficient land reform process, which were all passed during this process. The government has also progressed in the land reform process, with recent estimates by agricultural economists now suggesting that we are at 20%.

The ANC will continue to work hard to ensure progress in land reform and that we achieve job creation and justice. With or without a constitutional amendment we remain steadfast on our historical mission which is to reverse the skewed land ownership patterns, initiated at the alter of colonialism.

Issued by Pule Mabe, National Spokesperson, 8 December 2021