The 18th Constitution Amendment Bill / Section 25 Debate
6 December 2021
Ahead of the National Assembly Debate scheduled for Tuesday, 7 December 2021, the ANC Parliamentary Caucus releases this Communique to assert its approach to the issues at hand and deal with many distortions that have been brought into the public discourse.
Through this Communique the ANC encourages all of society to debate the issues based on the correct understanding of where the ANC stands on the land question to address the historic injustice of land dispossession.
ANC philosophical, policy and programme approach
The ANC's commitment to resolving the Land Question is grounded on a three pillared land reform programme,
Of land restitution,
Security of tenure and
Land redistribution.
Although much progress has been made in terms of the transfer of millions of hectares of land through redistribution and security of tenure, progress has been slow given the property considerations in the Constitution and numerous litigation challenges.
CHALLENGES WITH THE PROCESS
There have been challenges with the land reform process, which has more to do with dealing with the immense legacy of land reform and the capability challenges of implementing the land reform programmes and policy. Well-thought through programmes and policy have suffered from a lack of human resource capacity to realise their potential.
EVOLUTION OF THE LAND REDISTRIBUTION PROCESS: PROGRESS MADE
Between 1994 and 2015, the state has been able to redistribute over 5 million hectares of land, and currently a further 700 000 hectares of state-owned land is being redistributed. Since 1994, we have run the Settlement Land Acquisition Grant (SLAG) later replaced by the Land Redistribution for Agricultural Development (LRAD) programme. The post-settlement support Comprehensive Agricultural Support Programme (CASP), has provided beneficiaries of land reform with support. This support is being reinforced by the National Policy of Beneficiary Selection and Land Allocation, a policy that ensures productive use of redistributed land.
LEGISLATIVE FRAMEWORK
The Spatial Planning and Land Use Management Act has provided a legal framework for land use and management and the Proactive Land Acquisition Strategy (PLAS), which replaced the LRAD programme provides grant-based land redistribution support programmes. Government has developed the State Land Leasehold and Disposal Policy (SLDP) applicable to state land acquired through PLAS.
Through the Restitution of Land Rights Act 1994, government has since 1998 settled over 80 000 land restitution claims and approximately 8 400 have still to be finalized which are referred to as "old order claims". This is for the period of claims between 1994-1998. Over 140 000 "new order" claims had been received when the restitution process reopened in 2014 through until 2016 when the Constitutional Court put a halt to the "new order" claims, instructing that the "old order" claims needed to be completed first before dealing with "new order" claims. With Land Restitution, claimants bear the burden of proof with regards their land claims and this has over the years presented challenges and impacted negatively upon the speed at which these claims are finalized.
SECURITY OF TENURE
In terms of improved Security of Tenure, the conditions of labour tenants and farm workers has improved significantly through the passing of Labour Tenants Act and the Extension of Security of Tenure Act (ESTA). Initial challenges with a loophole in ESTA, resulted in an amendment to the Act being passed in Parliament.
54TH NATIONAL CONFERENCE RESOLUTION ON EXPROPRIATION OF LAND
The 2017, 54th National Conference of the ANC adopted a resolution on 'expropriation of land without compensation as one of the mechanisms available to government to give effect to land reform and redistribution', so as to pursue with greater determination the programme of land reform and rural development as part of the programme of socio-economic transformation.
With regards implementation, the resolution stated that implementation must ensure that it does not undermine future investment in the economy, or damage agricultural production and food security and that intervention must not cause harm to other sectors of the economy. That the approach must be guided by sound legal and economic principles, and must contribute to the country's overall job creation and investment objectives and that the draft Expropriation Legislation should be finalised.
Conference called for a NEC ETC workshop on land reform to be held to develop a detailed ANC approach. In May 2018 the ANC NEC National Land Summit was held which amongst others resolved that section 25 of the Constitution be amended in order to allow the State to expropriate, in the public interest and for land reform purposes, land without payment of compensation.
THE PARLIAMENTARY PROCESS
In February 2018, the 5th Parliament, informed by an amended motion of the ANC on the floor of the National Assembly (NA), established an Ad Hoc Committee, the Constitutional Review Committee, to look into amending Section 25 of the Constitution and to conduct public hearings in order to solicit views of all South Africans on the desirability of the amendment of Section 25. This work was concluded in March 2019 just before the 5th Parliament ended when a report was adopted by the NA stating that the Constitution should be amended.
The 18th Constitution Amendment Bill
In September 2019 the 6th Parliament adopted a motion to establish a parliamentary ad hoc committee to initiate and introduce legislation amending Section 25 of the Constitution. A comprehensive public consultation process took place during 2020 and 2021 based on a draft 18th Constitution Amendment Bill published in December 2019 as a result of a compromise struck between all parties in order to allow for the public participation process to take place. It was acknowledged that both the public participation process and political party positions would result in further amendments.
The Ad Hoc Committee visited all Provinces and obtained varied views of the public. Written and oral submissions were also received. Everything was recorded and duly later considered by the Committee during its deliberations in Parliament. The public hearings exposed frustration ranging from issues of land hunger; access to land for agricultural and residential purposes; ill-treatment of labour tenants; insecurity of communal land tenure; and land related corruption. Many of the issues raised during the public hearings were not directly related to the draft 18th Constitution Amendment Bill.
ANC's approach to the proposed amendments
Noting that the Ad Hoc Committee had decided to look at all clauses of Section 25 and held extensive deliberations on each subsection and noting submissions made by various public stakeholders and informed by ANC generated bilateral meetings with various political parties represented in Parliament, the ANC proposed the amendment of subsections 2;3;4 and 5 of the Section 25.
The ANC does not subscribe to the wholesale nationalisation of land or wholesale state custodianship of land. After lengthy deliberations internally and given the complexities of the sub clause and restitution legislation that has been introduced in 1994 and the likelihood of protracted and time delaying litigation in driving a land reform process, the ANC decided not to amend Section 25 (7) whilst acknowledging that it must be dealt with going forward.
The proposed amendments by the ANC took cognisance of the fact that the mandate of the Ad Hoc Committee was to make explicit that which is implicit in the Section 25 of the Constitution in order to make possible the expropriation of land without compensation, and further noted that the law of general application, the Expropriation Bill, deals with the circumstances under which expropriation of land without compensation can take place in land under the auspices of the Minister of Public Works. Parliament is in the process of finalising the Expropriation Bill.
In addition, the ANC has clearly indicated during the process of engagement that further pieces of draft legislation in the land reform process, in particular the Land Redistribution Bill, land tenureship policy and legislation will be brought to Parliament starting in 2022.
Dealing with the arguments that will come up in the debate On the role of the courts
The ANC opposes that the courts should determine the amount of compensation in expropriation cases. This view is informed by allegations of state incapacity to administer land reform programme. As the ANC, the Constitution provides for a clear separation of powers between all three arms of the State. If the courts were to determine, in the first instance, the amount of compensation to be paid in cases of expropriation of land without compensation, this would constitute a clear conflation of the enshrined principle of separation of powers.
State Custodianship
The State has since the 1800's been a custodian of land. This is nothing new. It has taken different forms and is still the case today. The issue has been raised as if this is a new creation which it is not.
ANC recognises that State Custodianship is necessary for particular purposes, redistribution and land reform. In addition, land held through traditional authority on behalf of communities, communal land tenureship, is another form of State Custodianship which has been delegated to traditional authority to redistribute land.
Custodianship can be carried out by an institution, community, traditional authority, individual or government.
The conscious distortion of fact that has come up in the Parliamentary process is that the original Constitution Review Committee was mandated to make constitutional amendments regarding the kind of future land tenure regime needed, considering the necessity of the State being a custodian of all South African land. This was rejected by the ANC's amendment which was passed by the National Assembly in 2018 and ratified by the final report.
What the ANC will not agree to, is that State Custodianship is the only form of land tenure. ANC policy sees State ownership and custodianship existing alongside private land ownership and communal land ownership.
The proposed ANC amendment, that of State Custodianship of certain land for land reform purposes and in the public interest, recognises existing state custodianship and future custodianship as part of the land reform process and a transitional phase of redistributing land to the people. The State as intermediary, or custodian, will hold land acquired through the application of the instruments of deprivation and expropriation. Thereafter the land will be released to beneficiaries
The State has since the 1800's been a custodian of land. This is nothing new. It has taken different forms and is still the case today. The issue has been raised as if this is a new creation which it is not.
ANC recognises that State Custodianship is necessary for particular purposes, redistribution and land reform. In addition, land held through traditional authority on behalf of communities, communal land tenureship, is another form of State Custodianship which has been delegated to traditional authority to redistribute land.
Custodianship can be carried out by an institution, community, traditional authority, individual or government.
The conscious distortion of fact that has come up in the Parliamentary process is that the original Constitution Review Committee was mandated to make constitutional amendments regarding the kind of future land tenure regime needed, considering the necessity of the State being a custodian of all South African land. This was rejected by the ANC's amendment which was passed by the National Assembly in 2018 and ratified by the final report.
What the ANC will not agree to, is that State Custodianship is the only form of land tenure. ANC policy sees State ownership and custodianship existing alongside private land ownership and communal land ownership.
The proposed ANC amendment, that of State Custodianship of certain land for land reform purposes and in the public interest, recognises existing state custodianship and future custodianship as part of the land reform process and a transitional phase of redistributing land to the people. The State as intermediary, or custodian, will hold land acquired through the application of the instruments of deprivation and expropriation. Thereafter the land will be released to beneficiaries.
The duration for which the land is held by the intermediary, state or traditional, is less important. It is the use of the land in that period which meets the objective of land reform in Section 25 that should be emphasized. The land may be held in custodianship in perpetuity or transferred to beneficiaries in the future.
Without Compensation vs Nil Compensation
The ANC takes decisions on the balance of evidence. In implementing ANC Conference resolutions, the ANC weighs up the facts and makes a determination of the possibility and the reality of its implementation. Respecting resolutions means amongst others safeguarding resolutions from falling foul of legal jurisprudence which could render a resolution null and void.
The expropriating authority performing an expropriation exercises public power and by that virtue, is bound by the rules of administrative law. Issues of procedural fairness, reasonableness, legality and proportionality are applicable. The process (means) of arriving at the amount of compensation (end) must be rationally connected to the purpose. The courts have timeously remarked that the means must justify the end. The essence of the ANC 54th Conference resolution is to expropriate land without paying for it under certain conditions.
International Property Law, which binds South Africa, recognises Nil Compensation. It does not recognise "without compensation". Nil Compensation is not only provided for in the law of general application, the Expropriation Bill, it also denotes a scientific process which is employed by the administrator responsible for expropriation (the executive). The legal effect of "Nil" and "Without Compensation" is the same — both result in no compensation being payable, but are legally different. Nil Rand is compensation where it is deemed just and equitable in terms of the Constitution. It, however amounts to no Rand value.
1913 cut-off date
The ANC, more than any other organisation, is deeply conscious of the historic national grievance of land dispossession and theft over which many wars of resistance were fought. The ANC's formation in 1912 was as a result of this national grievance. The ANC has also listened closely to what has come out of the public participation process and the overwhelming sentiment that the 1913 cut-off date should be done away with.
In recognising that any change to the 1913 cut-off date be made, the legislation since 1994 on land restitution would also need to be amended and subsequent decisions. Mindful of the fact that this must be done and the real prospects of prolonged litigation, the ANC will put this into a separate process.
In this regard the ANC has given great consideration to a possible formulation that would respect the resolution of the 54th National Conference. The Constitutional Court ruling on old and new order rights add to the complexity. It is the view of the ANC that forthcoming legislation and the 54th National Conference resolution on redistribution of land will assist going forward.
The way forward
For the ANC the debate is part of a continuum and not an event. Whether or not the ANC gets a 2/3rd majority, land reform and in particular land redistribution programme and programmes that address the hunger for land and support, will continue through policy, programme and further draft legislation that will be brought to Parliament.
Whilst the major reason why the Ad Hoc Committee was established in 2019 will remain unfulfilled, to make explicit that which is implicit in the Constitution, this opens the way for the Expropriation Bill, the awaited Land Redistribution bill and a Land Tenureship bill to take the process forward. Nothing is lost, it merely requires a new way to realise what the Constitution provides for.
Issued by the Office of the ANC Chief Whip, 6 December 2021
