The Section 25 amendment bill debate: Full transcript
15 December 2021
Including Mathole Motshekga's motivation for changing the constitution, and Julius Malema's statement in opposition
CONSTITUTION EIGHTEENTH AMENDMENT BILL
(Second Reading Debate)
7th December 2021, National Assembly
Dr M S Motshekga: Your Excellency, President Cyril Ramaphosa, Deputy President, David Mabuza, the Speaker of Parliament, the Deputy Speaker of Parliament, Ministers present and Deputy Ministers, directors, leaders of political parties and all distinguished members of this august house.
Today we have an ample opportunity to remind all South Africans, both black and white, that the principal object of establishment of an ad hoc committee to amend section 25 of the Constitution was to eradicate the original sin in the best interest of all South Africans, not a section thereof. It is therefore important for South Africa and the world to be reminded of the nature of this original sin to aid its understanding of this inhumane crime against the African humanity.
Indigenous African people were violently dispossessed of the land and its natural resources by the Dutch and British settlers. The Dutch settlers who occupied the Cape in 1652 enslaved the native population and used it as the source of chief labour. The British settlers who occupied the Cape from the beginning of the 18th century introduced abolished slavery and introduced liberal policies which denied the Dutch settlers slave labour and limited their access to African land and cheap labour. Thus, during the 1830s, the Dutch settlers migrated to Natal, Free State and Transvaal in search of land and its natural resources, as well as cheap labour.
The African majority waged wars of resistance against the Boers in defence of their land and dignity. That happened from the first half of the 19th century. The Dutch settlers violently dispossessed African people of their land and its natural resources in this three colonies. The discovery of gold in 1886 and diamond in 1866 created a scramble for the soul of South Africa between the Dutch and the British settlers.
The scramble led to the first Anglo-Boer War in 1880 and 1881. African people supported the British settlers during this war, hoping that in the event of victory, they would regain their land and its natural resources. The British settlers and their African allies were defeated by the Dutch settlers under Paul Kruger at Majuba Hill. The British and the Boers entered into an agreement which excluded the African majority.
The African condition was worsened by the Berlin Act of 1885 which legalised the partition of Africa into colonies which were shared amongst the European powers. The resulting Scramble for Africa and the discovery of the minerals deepened the conflict between the Boers and the British settlers, which led to the second Anglo-Boer War of 1899 and 1902.
The British persuaded Africans to support them during this war on the ground that in the event of victory, the British will restitute the land with the natural resources which were violently taken away from them. Thus, African participated in the second Anglo-Boer War and that changed the balance of power in favour of the British who were led by Lord Milner.
At the end of the war, the British once again betrayed the African people and concluded the Treaty of Vereeniging, which legalised racism and forged closer unity and co-operation between the Dutch and the British settlers. The British colonial authorities disarmed the African people and allowed the Dutch settlers to return to the land which they have violently taken away from the native population. The British also carried over the native resources or locations, which were labour camps created by the Dutch settlers during the 18th and 19th centuries.
The question which faced the British colonialists after the second Anglo-Boer War was characterised as the “native question”. This question confronted the British with the choice between their simulation of Africans into the new order or to keep them imprisoned in the native reserves or locations and to create a separate native administration for them. To address the “native question” which was two-legged, Lord Alfred Milner established the South African Native Affairs Commission and appointed Sir Lagden as its chairman. The commission was mandated to conduct an investigation into the territorial segregation of black and white populations and to establish a separate native administration for black people and African people in particular.
The betrayal of African people by the British people, after both the First World War and Second World War catalysed the birth of the Congress Movement. This congress movement, which was rooted in the Ethiopian Movement, opposed these racial and territorial segregation and called for the creation of the Union of South Africa - which was inclusive of all the people. But Cecil John Rhodes, the founder of the British Secret Society and author of British imperial plan declared in a speech in Parliament that the native is to be treated as a child and denied the franchise. He further said that they must adopt a system of despotism such as workers in India in their relations with the barbarism of South Africa.
So, Cecil John Rhodes made it clear from the outset that Africans do not belong to this country. He also, under Lord Milner, began the process of uniting all the four colonies which convened a national convention which met in Durban in 1908 where a draft Constitution was adopted – South Africa Act of 1909. But African people did not accept the draft Constitution and they convened their own meeting in Bloemfontein where they decided that they would send a delegation to Britain to oppose this draft Constitution. During that time there were two South African lawyers in Britain, that was Alfred Mangena and Pixley Ka Seme. Sir President Sefako Makgatho of the Transvaal Native Congress instructed them to make submissions to the British government that African people do not accept the South Africa Act and that it should not be ratified, but the British, contrary to the will of the people of South Africa, ratified the South Africa Act. That means that this Act was not based on the will of the people of South Africa and was therefore illegitimate. Therefore the Union of South Africa itself was illegitimate, but this ... [Interjections.] ... illegitimate Union of South Africa adopted the Natives Land Act 27 of 1913.
Now, interestingly, as the colonial authorities themselves accepted that, that Act was based on the report of Sir Lagden, which authorised the territorial and racial separation and also adopted the creation of these native reserves and locations. At the time of the adoption of this Act, black South Africans only had access to 7% of the total surface of South Africa. The Constitution had stated that a commission will investigate a further allocation of land to African people, but when that was done by Judge Beaufort, they only increased that to 8% until 1936 when it was increased to 13%.
It means therefore that this original sin shaped the land occupation by African people and it also shaped the administration the affairs of African people. So, we can see that there was a grave injustice done to the African majority in particular, and the black people in general. Now, the amendment Bill that is before us seeks to address this inhumane crime or this crime against the African majority. Those who unfortunately have to vote with us on this matter are the beneficiaries of this crime against the African humanity and they have the support of a coalition of some Africans who do not know the history of this country and they are supporting this because they hope that through their unholy coalition in 2024, they will gain power and do what they like. But we want to assure them that the ANC is still in power and the ANC has other instruments that it will use to ensure that the people of South Africa get access to the land.
We are not worried about those who are not supporting this Bill, but we are quite confident that with or without them, the ANC is going to make the land available to the people because without making the land available to the people, we have a situation where the triple challenge of poverty, unemployment and inequality will continue. Without making land available to the people, we have a situation where the current deepening moral degeneration and social ills will continue. Those who don’t want to support this Bill are saying that the suffering of the African people, in particular and black people in general, should continue until some time in the future when they will be in power – something that will never happen in our lifetime.
They think that the power that they acquired through unholy coalitions will last. [Interjections.] These unholy coalitions are going to collapse before long and the people of South Africa will come back to the only organisation that will liberate them from poverty, unemployment and inequality. The people of South Africa will come back to the ANC which will ensure that we reverse and arrest the deepening moral degeneration and the social ills. Our people are suffering from femicide, gender-based violence, teenage pregnancies and so on, and it is not because our people have no values; it is simply because the effects of the original sin is still with us.
We have to eradicate this original sin which is a crime against humanity - which is a crime against our people. Those who don’t want to vote with us on this matter, are simply saying our people deserve to suffer until some time in the future when they dream that they will be in power and that is not going to happen. There is no South Africa that can be run by unholy coalitions and make sure that we have sustainable development.
We want to call on all South Africans to listen carefully to the speakers that will come here. Some of them even said during local government elections that they will return land to the people and create jobs. If you don’t vote for this Bill, how are you going to return land to the people? It is only through this Bill that land can be returned to the people. So, all South Africans who respect the will of the people of South Africa will vote with us today so that this Bill goes through. Some political parties forget the fact that our constitutional democracy is both representative and participatory, and participatory democracy places the will of the people above the selfish interests of political parties.
So, today we want to the people of South Africa to see those people who are voting against their will because during the public hearings, South African people have spoken. They said that they want us to amend this Constitution so that they can have their land back. Now, those who voted against this Bill are voting against the will of the people of South Africa. [Interjections.] Therefore, they cannot claim to be democrats. All democrats will vote in favour of the will of the people, not in favour of their selfish interests. [Interjections.]
So, your days as democrats are numbered. If you have come here today to bury yourselves because you cannot vote against this Bill and still go out and call yourself a democrat – you can’t. And there are some peacetime heroes and heroines, and today they say that they can’t support this Bill. If they can’t support this Bill, what revolution are they pursuing? Because a revolution is about changing the lives of the people for the better. And there is no piece of legislation before us that can achieve that – it is only the amendment Bill that we have tabled today that can change the lives of our people for the better.
So, your days are numbered as the democrats and your days are numbered as peacetime revolutionaries because the ANC is determined to return the land to the people and the ANC has various instruments that it will use to make sure that the land goes back to the people. If there is anybody who thinks that by withholding their votes they are going to frustrate the ANC and the people of South Africa, you are wasting your time.
We are forging ahead. We are going to make the land and its natural resources available. We are going to make sure that we combat the triple challenge of poverty, unemployment and inequality. We are going to make sure that we arrest the deepening moral degeneration and social ills. And our women and children will be safe and will have an opportunity to develop in a safe environment with or without the votes of the unholy alliance that we have seen emerging - which is cheating itself and suggesting that they will get power by default. Good luck as you go down into your grave that you dug for yourself. Thank you very much. [Interjections.] [Applause.]
Dr A Lotriet: Hon Deputy Speaker, it is very ironic that this year, where we are celebrating the 25th anniversary of the adoption of our Constitution, that we are debating an amendment to this Constitution that will have dire consequences for this country.
Chapter 2 of the Constitution states: This Bill of Rights – and maybe it is important for the ANC to listen –
This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
It further states that: “The state must respect, protect, promote and fulfil the rights in the Bill of Rights.”
Although section 25 forms part of the Bill of Rights, the founding provisions as stated in Chapter 1 of the Constitution cannot be ignored, specifically the rule of law. It is within this framework that this Bill must be assessed. There are two questions: Firstly, we have to answer whether it is necessary to amend section 25? and lastly, does it comply with the values and rights enshrined in the Constitution?
Agb Adjunkspeaker, om te bepaal of ’n wysiging van artikel 25 nodig is, moet daar gekyk word na die motivering van die wysiging.
Yes, the motivation for this amendment ...
Die motivering wat voorgehou is vir die wysiging is dat dit wat implisiet is, eksplisiet gemaak moet word, nie soos wat nou vantevore gesê is deur die agb Motshekga nie.
Die werklikheid is dat hierdie motivering bloot ’n rookskerm is om regverdiging te verskaf aan ’n proses wat selfs nie eens deur almal in die ANC ondersteun word nie.
Die Grondwet is nie ’n stel regulasies nie. Dit bied riglyne en norme waaraan handelinge en wette moet voldoen en gemeet kan word. Die wyse hoe dit in die praktyk gedoen moet word, word hanteer deur die algemeen-geldende regsvoorskrigte. Dit is waar die implisiete eksplisiet gemaak word, nie deur die Grondwet te wysig nie.
Wetgewing is die meganisme waardeur grondhervorming móét plaasvind - en dit móét plaasvind - ...
mr M A TSEKI: on a point of order, hon Deputy Speaker.
[Onhoorbaar.] ... met die nodige politieke wil en kapasiteit ...
the deputy speaker: Hon member, just a moment. Hon Tseki.
mr M A TSEKI: Hon Deputy Speaker, there is no interpretation on the gadgets.
the deputy speaker: Okay, let’s call them to please sort that out. Interpretation, please do that. Hon members, please do things orderly. You can’t be ruling from the floor. Just allow the Chair to do that. Hon members, keep your voices lower. The public and everybody else would like to listen to the debate. So, I would appreciate that all of us ... [Interjections.] ... Please switch off if you are not given the space to speak. Hon members, check your gadgets, please. Thank you very much. Go ahead, hon member.
Dr A Lotriet: Thank you, Deputy Speaker.
Grondhervorming moet plaasvind onder leiding van ’n regering met die nodige politieke wil en kapasiteit om dit te doen. Die Grondwet – en spesifiek artikel 25 – is nie die struikelblok in die grondhervormingsproses nie.
For example, in section 25(4), the Constitution places a specific responsibility on the state to give effect on the nation’s commitment to land reform. Section 25(5) is very clear that the state must take reasonable legislative and other measures within its available resources to foster conditions which enable citizens to gain access to land on an equitable basis. It cannot be more clear.
The proposed amendment changes the specific obligation of the state and substitute it with a vague reference to certain land to be placed under the state’s custodianship. In other words, custodianship is included for the mere sake of winning the support of radical populists. The addition of custodianship also goes beyond the mandate given to the ad hoc committee by the National Assembly and can therefore not be included in this Bill. [Applause.]
To address the question of whether this Bill complies with the founding provisions and values of the Constitution, we have to look at what the status of property rights is in our Constitution.
A primary element of the rule of law and human rights, two of the founding provisions, is that it should include respectful property rights. This is in line with international law and specifically Article 17 of the Universal Declaration of Human Rights, UDHR, to which South Africa is a party. This Bill creates uncertainty regarding property rights and will have an adverse effect on investment and land improvements.
The proposed amendments that states that land and any improvements on it may be expropriated with nil compensation is precisely the type of situation that will cause this uncertainty. This is not what the country needs now in the times of economic devastation during the pandemic.
It is therefore beyond belief that there was no socioeconomic impact assessment done on this Bill. The Bill itself states that there will be no financial implications. This is to say the least, madness. We cannot allow any amendment of the Constitution that will flex property rights and economic prosperity at risk ... [Interjections.]
mr z mlenzana: Hon Deputy Speaker, on a point of order.
the deputy speaker: Yes, hon member. Hon Lotriet, just a moment. Who is speaking?
mr z mlenzana: Mlenzana.
the deputy speaker: Yes.
mr z mlenzana: I wanted to ask if the member is ready to take a question?
the deputy speaker: Hon Lotriet?
Dr A Lotriet: No, Deputy Speaker, we can talk afterwards. Creating uncertainty regarding property rights goes counter to the rule of law.
Our further concern is that the Bill states that national legislation must set out specific circumstances where a court may determine that the amount of compensation is nil. National legislation is a much lower threshold for approval and it opens the door for arbitrary circumstances to be determined for when the compensation must be nil.
The Constitution as it stands, provides for specific circumstances and any legislation should be measured against that. To answer those questions that I put at the start, there is no need to amend section 25 ... [Applause.] ... and this Bill falls foul of the constitutional test ... [Applause.] ...
Die Grondwet is juis daar om die balans tussen regte te handhaaf en om die burgers van ’n land teen die vergryppe van die staat te beskerm. Hierdie Wetsontwerp versteur daardie balans en beskerm nie die inwoners van hierdie land nie. Dit maak ook die deur oop vir enige toekomstige wysigings aan die Handves van Regte.
As dit nou met so ’n gebrekkige proses aanvaar en deurgevoer word, skep dit die presedent vir enige verdere wegkalwing van die menseregte van die burgers van Suid-Afrika.
Die DA ondersteun nie hierdie Wysigingswetsontwerp nie. Dankie.
Mr J S MALEMA: Thank you very much, Deputy Speaker. Deputy Speaker, when the EFF introduced the motion for the amendment of the Constitution to allow for land expropriation without compensation in 2018, we had an absolute clarity of mind on what needed to be done to correct the anomalies in land holding created by the colonial land dispossession and apartheid fostering ... [Inaudible.] ... Our original motion in 2018, called for the establishment of an ad hoc committee to do the following: Review and amend section 25 of the Constitution to make it possible for the state to expropriate land in the public interest without compensation; and in the process conduct public hearings to get the views of ordinary South Africans, policy-makers, civil society organisations, and academics about the necessity of and mechanism for expropriating land without compensation; propose the necessary constitutional amendment with regard to the kind of future land tenure regime needed taking into account the necessity of the state being a custodian of all South Africans ... [Inaudible.]
It is now common cause that the ruling party proposed an amendment to the motion which took us along winded road and ask the Constitutional Review Committee to investigate the necessity of and mechanism for the expropriation land without compensation. This ought to not have been the guiding question because in our original motion we had laid out in great detail the need for the amendment of section 25 of the Constitution. When the Constitutional Review Committee completed its work after talking to thousands of our people across all corners of this country it recommended to this House that the section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution with regard to the expropriation of land without compensation as a legitimate option for land reforms so as to address the historic wrongs caused by arbitrary dispossession of land, and in so doing ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes.
Hidden from the recommendation of the Constitutional Review Committee was the frustrations millions of African people in this country felt at the slow pace of land reform. The report could not find ways to correctly communicate the frustrations of farm workers who are still victims of legal and illegal eviction by farm owners and their desperation for land they can call their own. The report could not correctly put into words the desperation of the elderly across the country who have been waiting for years to have their land restored and the failure of the democratic state to ensure that there’s a thorough going resolution on the land question. Despite this, we allowed the process to go through because we thought that as black people we’re collectively victims of colonial land disposition and apartheid land removals we will be able to find each other when amending the Constitution.
We are here to report to the people who have entrusted us with the responsibility of amending the Constitution to ensure a swift return of their stolen land that the dominant black political parties could not find each other on this question. The EFF made cogent submission on the amendments needed to have far reaching effects on the reposition of land by the African majority. All these submissions were out rightly rejected by the ruling party which has preoccupied itself with maintaining the status quo and protecting the interest of white land owners. We submitted the section 25(2) of the Constitution must be amended to explicitly state that land may be expropriated without compensation. We also submitted that section 25(3) which provides for compensation for expropriation should be removed completely and be replaced with a positive provision allowing for state custodianship of the land. We also initially submitted that the section that provides for land restitution must be removed in order for the country for focus to on redistribution land reposition program not one with limited scope as land restitution is currently. All these submissions were rejected by the ruling party.
The Bill that this House is asked to approve today will take African people’s struggles for land repositions many steps back. The Bill which was rammed through the committee by the captured legal services of Parliament placated even the compromise position of the Constitutional Review Committee. According to this Bill compensation for expropriation will remain a default position, but provides for up score circumstances in which amount of compensation may be nil. The concept of nil compensation was never there when Parliament resort to adopt the EFF motion in 2018, and when it adopted the report of the Constitutional Review Committee. The nil compensation vocabulary was introduced by the legal office of Parliament in collaboration with and at the insistence of lobby groups that captured this process for their own selfish interests.
We rejected the assertion of nil compensation simply because it is vague and will in essence provides for extra limited instances in which compensation could be at below the market value of the land. We now know that the process of expropriation Bill which ran parallel to the constitutional amendment process has defined conditions under which land can be expropriated at nil compensation. These conditions include abandoned land, land that possess health and environmental risks, state land, etcetera. This do not constitute the type of land needed to comprehensively deal with the land question in this country. We’ve also made substantial submission for state custodianship of land as the only land tenure arrangement that will allow for a broad-based redistribution of land and for ensuring strong security of tenure for the majority of the people.
The current Bill makes meaningless provision for the state to be a custodian of certain land and does not define what this certain land is. If this Bill is allowed to pass it will significantly sell-out position and it will undermine the struggles of black people. The practical implications of this Bill will be far worse than the current property clause of the Constitution. we have tried to reason with the ANC on several occasions and it has become very clear to us that the ruling party does not represent the interests of the dispossessed masses of our people. There are hell-bent on protecting the interest of the settler minority and oppressive and exploitative system of land holding as represented by the current free hold arrangement to title.
We reject this Bill and call on millions of our people to do whatever it takes to get their land back. We tried, but the parliamentary process was hijacked by the ANC and their handlers and unless we have overwhelming majority in Parliament, black people stay landless in this country. Our people must take it upon themselves to ensure that they return what was stolen from them. This process is a failure, and the ANC is completely captured by white monopoly capital and it will not do anything in its power to return the land to the rightful owners. It is led by cowards who don’t want to offend their handlers because majority of those who lead the ANC today were themselves spies and they were captured when they were young. Therefore, they can’t offend those who handled them when they were young because their files will be released. We are dealing with a complete bunch of sell-out who are scared to deal with the land issue decisively.
We call on South Africans to know that it is now in their hands, they must stop trusting that the ANC can do anything in its power to give them the land back. They must take it upon themselves to reclaim that which was stolen from them and the EFF will be fully behind them when they engage in that struggle of taking back the land that was stolen from them by children of criminals.
Deputy Speaker, the EFF rejects this Bill because it’s a complete departure from the radical proposal that we have made. Ours remain and will never change, expropriation of land without compensation, not even with nil compensation. We don’t want compensation at all and we want the state to be the custodian of the land.
Ke fetṧa ka go realo. [Tsenoganong.]
The DEPUTY SPEAKER: Order! Order! Order, hon members. Let’s give hon E M Buthelezi a chance to speak. Hon member at the back there, can you stop shouting. This is repeated, you are not hackling. Now, you’re making your fulltime job to speak with everybody else in the House. No, no. Can you stop, please man? Hon Mashego, have some order, Ntate. Please man, jaa! And you’re doing it badly when you have a mask on, it’s impolite for that reason too, please. Go ahead, hon Singh.
Mr N SINGH: Hon Deputy Speaker, let me at the beginning say that I have not been at Home Affairs to change my surname from Singh to Buthelezi, but hon Buthelezi, who serves on this committee is having network problems. The position of the IFP on this Bill is as follows: We are told that the Bill amending section 25 of the Constitution, the property clause, is the product of the will of the people. What we have been told is simply smoke and mirrors. It cannot be further from the truth. This Bill, if adopted will not change land ownership patterns.
The process has been used as a political tool to manipulate the ordinary South Africans who are not legal experts into believing that the Constitution, not he government, is at fault for the complete failure to advance land reform. [Applause.]
The reason for slow progress is simple: The government is corrupt. The government has abused land reform projects to benefit the elite and cadres of the governing party for decades.
Less than two weeks ago, an Eastern Cape official in the Department of Agriculture, Land Reform and Rural Development was found guilty on charges of fraud of more than R2,6 million relating to a land distribution grant. While some government officials are stuffing their pockets, hardworking African farmers are waiting desperately for government assistance.
The IFP has always remain resolute that land reform and restitution must take place urgently. There is a desperate hunger for land claims to be settled and for financial and business assistance to be given to emerging farmers. Sadly, there is no will.
It has all been a political game, at the cost of the people of South Africa. The fact that the committee kept on asking for extensions to finalise this Bill is evidence of this political game.
The IFP strongly believes the last-minute amendments made to the Bill, to introduce, and I quote, “state custodianship of certain land” in section 25(5) did not fall within the mandate of the committee and was just a political move. The committee was mandated to, and I quote, “make explicit that which is implicit in the Constitution with regard to expropriation of land without compensation”. How is the introduction of state custodianship of certain land making explicit that which is implicit regarding expropriation? Why should the people have any trust in government to act as a custodian of certain land? How on earth will this land be returned to the dispossessed?
The committee not only ignored its mandate but it also went against the advice of Parliament’s legal services. The team cautioned that the committee should seek the House’s approval for amending further provisions for the 2019 Draft Bill. It did not do so.
We are told that the Bill represents the views of the people, however committee members only saw a report of about 150 000 public submissions received in July 2021. Is that the will of the majority of the people? The process followed raises many, many questions.
The IFP believes that section 25, as it is currently framed is certainly broad enough to justify that it may be just and equitable in a specific case for nominal compensation to be paid on expropriation.
Our Constitution has never endorsed a market-value approach. It may even be just and equitable in a specific case that nil compensation or zero Rand is justified. However, this should be in very limited circumstances and we believe the court should always act as arbiter in this determination. There is absolutely no need to amend the Constitution to test these constitutional powers.
What we desperately need is the will of the government, the will to act, the will to use the Constitution to advance land reform. This Bill is not the solution. An efficient, dedicated and corruption-free government is the only solution.
Let me say, from 1998, when land claims were opened, there are still thousands of claims that have still not yet been processed just to find out whether the prima facie evidence of those claims. That is the biggest problem that we are having here. The administration is just not up to the task of ensuring that legitimate claims are brought before the Land Claims Court or the Land Claim Commissioner to deal with them.
Hon Minister, hopefully, when you speak later, you might say that the Bill that you have introduced about the new Land Claims Court ... [Time expired.] The IFP rejects the Bill. Thank you. [Applause.]
The DEPUTY SPEAKER: Go ahead. [Interjections.] Hon Chief Whip, ...
Ons sê nie so nie. Dirks het ’n manier om dit te sê.
Dr C P MULDER
Mr N SINGH
Dr C P MULDER: Deputy Speaker, I would like to start off by reacting to the speech of hon Motshekga. The one point that hon Motshekga made throughout was that the ANC truly represents the will of the people. You felt very strongly about that. My question would then be: What happened on 1 November? On the 1 November, it was clear that you did not truly represent the will of the people; you got below 50%.
The second point I would like to make, hon Motshekga, of cause, with regard to history, and you gave us a lesson, you are entitled to your opinion, but not your own facts, when it comes to history.
Lastly, with all due respect, you did not refer in one single word to the Bill itself.
If you want to change the Constitution or an entrenched section of the Constitution or the Bill of Rights, you cannot make a single procedural error, not one. In this process, many errors were made. It started with the Constitutional Review Committee. Three different ad hoc committees followed. Most procedural mistakes were made during the Constitutional Review Committee process and the other two ad hoc committees.
Then we had the public participation process. We had public hearing in the provinces. Thirty-three were held originally. Let us say 1 000 people attended. Approximately 33 000 people expressed their opposition to not amending. They wanted to amend, but 630 000 plus written submissions were received, of which 75% were against amendment. They had oral submissions at Parliament and of the 53 submissions that were heard, 41, 77%, were against. Those were policy-makers, civil society organisations and academics.
What are the consequences of land expropriation without compensation? Amending section 25 of the Constitution to provide for the expropriation of land or property without compensation will make all property rights null and void. The erosion of property rights in South Africa will create uncertainty and it will inevitably divert potential investment away from the country and will ultimately result in economic failure and the collapse of South Africa.
Section 17 of the Universal Declaration of Human Rights, as contained in the International Bill of Human Rights clearly states, one, everyone has the right to own property, alone as well as in association with others. Two, no none shall be arbitrary deprived of his property.
The implementation of land expropriation without compensation is in contravention of the International Bill of Rights. It is also in conflict with about a dozen treaties that South Africa signed in the past.
What does the Bill actually say? First section, “where land and any improvement thereon are expropriated for the purposes of land reform, the amount of compensation payable maybe nil”. This is completely unacceptable. Whenever provision is made for a nil compensation, we are dealing with confiscation. Nil compensation as a term is being used by the ANC because they are too embarrassed and too shy to tell the international community that the democratic government of South Africa is prepared to take people’s property without any compensation. Nil compensation means exactly the same as no compensation.
The second provision says that “national legislation must provide circumstances where the amount of compensation is nil”. The right to own property is a fundamental right entrenched in the basic international principles of the rule of law. That is why the rule of law is entrenched in the South African Constitution in the founding provisions on section 1(c). It can only be amended with a 75% majority. So, don’t be under the impression that you need two-thirds; you need 75% today and you will not even get two-thirds.
It is absolutely disingenuous to try and undermine these principles by way of all the legislation where only a 50% majority of the NA will be sufficient. This will be unconstitutional and in direct conflict with the current provisions of section 25(2)(b) and 25(3) of the South African Constitution.
The ANC has gone through this process. It took almost three years in which we have been creating political uncertainty in terms of what is going to happen with property rights in South Africa. The ANC has gone through this process until today. Today, it is quite clear that you do not represent the will of the people in terms of this, because the majority is not supporting what you are trying to achieve.
Can you please then come to the reality and look in terms of international best practice. What do countries that grow do? They guarantee property rights; they guarantee the rule of law. What you are trying to achieve is not going to succeed. It is going to be a failure today. The FF Plus will definitely vote against this proposal. Thank you very much.
Mr W M THRING: Deputy Speaker, allow me to theologically correct the hon. Motshekga. The original sin was man turning away from God. This was perpetuated by 27 years of the current administration, failing to properly and legally restore dispossessed land. The ACDP has always acknowledged the need for reformation and restitution of the land. The question however, is not in the why, but how? We have consistently said that, expropriation without compensation, is not the ... [Inaudible] ... to the land question. Property rights must be protected, because a failure to protect property rights and to issue title deeds to property owners or domestic business will not invest where there is no security for their assets.
The ACDP agrees with former President Kgalema Motlanthe, who when he spoke in July 2019, at a dialogue on agricultural development, said:
If property is not protected by law, society as we understand it today, will disappear because the kind of anarchy and chaos that would ensue is difficult to imagine.
We cannot allow this to happen.
It is the view of the ACDP that from a legal and constitutional perspective, it is not necessary to amend section 25 of the Constitution, as the Constitution is existing restitution of the act. It protects property rights and also recognises the need for the restoration of rights to those who have been dispossessed of their land.
The problem was the failure to implement the existing policy and legislation, mainly due to incompetence, mismanagement and
corruption, particularly in the Department of Rural Development and Land Reform, as highlighted by both the Kgalema Motlanthe High Level Panel Report, as well as the Special Investigation Unit report into the Department of Rural Development and Land Reform.
From an ethical perspective, the ACDP supports orderly land reform and the restitution of land with compensation, understanding the need for fast resolutions to the land issue as land grabs escalate around the country. We must support as many South Africans as possible, to gain access to land, with title deeds, while protecting all property rights and ensuring that just and equitable compensation is paid for any land that is expropriated.
The ACDP commits to strengthening access to security of tenure, as well as the freedom to acquire, utilise, rent and sell property, including land. We must prioritise rural and agricultural development, guarantee food security and assist small and emerging farmers to become commercially viable, by having better access to finance and markets.
We support a just, equitable, transparent and corrupt free, land restitution process, believing that when we unite, build and grow together, it is possible to enjoy a safe, healthy, and prosperous South Africa. The ACDP does not support this amendment Bill. I thank you.
Mr B H HOLOMISA: Mr B H HOLOMISA: Deputy Speaker and hon members, the new SA Constitution was written as our societal and moral compass. It is however good that Parliament has finally taken time to consider the amendment of section 25 which had caused so much hurt to the majority of South Africans and that, the National Assembly votes on it today.
From the UDM’s point of view, we are satisfied that our voice was heard and that the Bill in its current form does not put a time limit on the unfair dispossession of land. Should 1913 have been used as the initial cut-off date whilst many indigenous people forcibly lost their land long beofre then, it would have meant that this entire process was doomed to fail. In fact, that date should never ever be brought up in this context again.
Mandize kuwe ke lungu elihloniphekileyo uMotshekga. Inyaniso mhlekazi ilapha, ...
Mr V ZUNGULA: Deputy Speaker, as the ATM we want to express our utmost disappointment in the ANC and its collaborators for misleading the people of South Africa into thinking that, today is a historic day to mark the amendment of section 25 of the Constitution to effect expropriation of land without compensation. The problem started in this House where the amended motion was converted into a resolution. The resolution adopted by the House betrayed the fundamentals as contained in the amended motion.
In short, substituting expropriation without compensation with expropriation with nil compensation is the essence of the sham. The sham continued in the public hearings countrywide until COVID-19 disrupted that programme. Despite the overwhelming mandate by the people of South Africa in the initial public consultations, in the second public consultations is where the sham was propagated. The Parliament Committee did not explain to the people of South Africa that the second consultation was meant to provide input into the Bill. People were confused why they were being asked about what they had already given mandate for, and some wishy-washy answer was given and the Bill was not even circulated, explained or discussed.
Therefore, to come here and claim that public hearings to the Bill were conducted is pure lies and misrepresentation. As the ATM, we hold the strong and uncompromising view that, passing this Bill would be the biggest sell-out action that this Parliament could have done. Passing this Bill needs five things:
1.The principle to compensate continues to be entrenched.
2.The market value consideration continues to be entrenched.
3.Courts decide if a case has been made or not for the so-called nil compensation.
4.Section 25(7) of the Constitution which sets out the cut-off date for land redistribution and restitution as at 19 June 1913 onwards remains intact. Meaning all of the land that was robbed form our forefathers in the 1700’s will remain in the hands of the land robbers. Section 25(7) of the Constitution in its current form sanitises land looting.
In our written submission as the ATM we have proposed that 19 June 1913 date be backdated to 06 April 1652 when Jan van Riebeeck first set foot in South Africa.
In conclusion Deputy Speaker, the ATM is pleading with the ANC to withdraw the Bill and go back to the drawing board. This Bill must be withdrawn and sent to the people of South Africa for their input and for them to achieve the mandate they have been given. As the ATM we are offering our votes and our support on a Bill that is genuine, a Bill that would benefit the people of South Africa not ...
... le nto siyifunayo. Umhlaba mawubuyele ebantwini balapha eMzantsi Afrika. Enkosi.
Mr S N AUGUST: Hon House Chairperson, our country has a painful land history. Colonial and apartheid laws were the weapons of land dispossession for the majority of land enrichment for the minority. That is a pattern of land ownership that persist today. It is an immoral and unjust pattern. Good agrees that there is an urgent need to accelerate land reform and to address the spatial and economic injustices of dispossession and landlessness.
Good agrees that expropriation is a legitimate tool to fix these injustices. Expropriation is nothing new. Expropriation of farms, homes, land and movables went on for decades. It was enabled by the laws of hateful regime who created a system that was declared a crime against humanity.
Expropriation by the state continued under the current 1975 Expropriation Act. The states right to expropriate property for public purpose and in the public interest was included in the new South African Constitution.
Expropriation by all three spheres of government has continued throughout the democratic era. In practice, political parties who today oppose expropriation as a legitimate tool to achieve land reform, continued to expropriate land where they are in government.
The question of expropriation without compensation is already settled law. Section 25 of the Constitution already provides that no compensation maybe paid, if it is just an equitable. There is therefore no need to amend the Constitution to achieve a just equitable and an accelerated land reform programme that includes no compensation when appropriate.
Hon House Chairperson, the 18th Amendment Bill is intended to make explicit that which is implicit. However, the interpretation of the section 25 of the Constitution, has already been confirmed by the Constitutional Court 2002 in the case of the First National Bank of SA Limited v the Minister of Finance, and the Constitutional Court said that there are appropriate circumstances where it is permissible legislation in the broader public interest to deprive persons of property without payment of compensation.
The Minister of Public Works and Infrastructure, recently published the Bill to amend the law of general application. The Expropriation Act to excessively provide for the circumstances under no compensation would be just an equitable. We must adopt that Bill and get on with it. Our failure to adequate address land reform is not a failure of the Constitution and in particular section 25.
Good supports the need to urgently to speed up our land reform programme. We do not support amendment of the Constitution, because it is unnecessary, for expropriation with no compensation is already provided for in section 25 of the Constitution as it is now. Thank you.
Mr N P MASIPA: Hon House Chairperson, the tabling of the report to amend the Constitution to allow expropriation without compensation comes at a critical time in our country’s agricultural sector. Both black and white farmers are concerned about their security of tenure because of the proposed amendment of the Constitution. The financiers are already taking a cautious approach in their support of farmers because of the ill-conceived proposed expropriation without compensation’s threat to security of tenure.
The investors have already left the Land Bank because they could not withstand the uncertainty created by this constitutional amendment amongst other things. It is house to let at the moment. At the moment the institution is clueless with no strategic direction.
The gross ineptitude of the ANC has progressively led to many black farmer’s failures in the agriculture and land reform. Today the same organisation is leading this country towards poverty and hunger. Let us call a spade, a spade.
When the EFF actions its radical fantasies in this House, the whole of the ANC follows without question. [Interjections.]
We are debating the amendment of the Constitution, because the President of the country is caught between increasing fractions party from the disintegrating and appeasing an intransigent EFF.
It was clear in our committee deliberations on this Bill that the ANC comrades did not have a clue as to what is wrong with the Constitution. The real problem faced by black farmers, under the failing ANC-led government, is the ANC corruption. [Applause.]
Crime and poor unco-ordinated farmers support, farm inputs inflation, lack of the market access, failing agriculture state-owned entity, SOE, and the lack of customised financing institutions.
The corrupt ANC-led government’s problems are being compounded by a need to appease a quarter of upstarts from the EFF, Good and ATM who now seek to call the shots through scare mongering policies.
Mr President, appeasing these political babies and the radical economic transformation, RET, forces in your party, is going to lead to the destruction of food security and commercial agriculture in this country. [Applause.]
The section 25 Constitution is not the problem. The problem is the ANC corruption. The litany of problems faced by the black farmers can be summerised as follows: Poor financial support, the bankrupt Department of Water and Sanitation, the unco-ordinated farmers support, poor biosecurity corruption in the agricultural SOE, the demise of the Land Bank and the land reform failures.
In conclusion, the emerging farmers are faced with a litany of problems. It took the DA to secure Mr Rakgase a farm, after the ANC-led government spend years trying to disposes him of his land. [Applause.]
To the red beret, it is broken and unequal education system that is perpetuating poverty and inequality. To the failing ANC, it is your corruption and your inability to realise and enforce the rights set out in the Constitution and not the Constitution.
The inability to issue more water licenses has failed the land reform dismally. There is absolutely nothing implicit in the Constitution that needs to be explicit to make the government to do what it needs to do.
The DA reject this amendment and calls on all members in this House who value the rule of law and this country’s economic future to join us in rejecting this amendment. I thank you, hon House Chairperson. [Applause.]
The Minister of Justice and Correctional Services: Thank you very much House Chairperson. Hon members, the President the Republic of South Africa and the Deputy President, fellow South Africans, today, we continue to set in motion a process to consolidate and complete a journey that was initiated by Solomon Plaatjie, the first Secretary-General of the African National Congress... [Interjections.] ...
The HOUSE CHAIRPERSON (Mr C T FROLICK): Hon Minister, hold on. May I just request the hon Deputy Minister of Home Affairs to switch of his microphone please, it is disturbing your speech. Please proceed, hon Minister.
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: ... The first major campaign of the South African Native National Congress, the predecessor of the ANC, was against the Glen Grey Act of 1894, which was consolidated into the Land Act of 1913, a measure that drastically dispossessed and curtailed the right of Africans to own or occupy land throughout the union.
Today, we stand to complete that which Inkosi uBhambatha died for. We stand to complete the fight against the original sin of land dispossession which left 87% of the population to be living under 13% of the land. The forces on the extreme left and the extreme right who stand opposed to progressive policies, their entanglement will be exposed today. When forces in the extreme left and the extreme right converge against the people, it is a counter revolution.
In this entanglement the EFF, DA and the FF Plus pretend not to be in the same bed. They behave like couples who have celebrated Lobola, yet they tell the whole world they’re not married. How ironic that they vote together in local government. They have pronounced that they will vote together today to oppose the Bill, yet they continue to tell the people of this country that they are not coalition partners. It is clear that this entanglement has graduated into a coalition. They are agreeing on everything including opposing land reform.
From the African claims, the Freedom Charter, Ready to Govern and the Reconstruction and Development Programme, RDP, the ANC always advocated for equitable distribution of land to the people of this country.
Our land reform policy is anchored on three pillars: The restitution of land rights that has been dispossessed in terms of the colonial laws, improvement of security of tenure for those whose land rights were weakened by apartheid laws; and Land redistribution.
Presently, data from government and academia presents a wide gap, with the government suggesting that the land transferred from white South Africans to fellow black between 1994 to 2020, is roughly 11%. While some economists suggest that we have made progress to around 20%. Government has recently released an additional 700 000 hectors of land to beneficiaries of land reform. While the land reform programme has been slow, there has been some progress.
Some of the challenges experienced during the implementation of the land reform programme since 1994 are the following: Exorbitant land prices and protracted negotiations to settle claims, complexities of settling rural land claims in the absence of documented evidence, fraudulent claims, non-disclosure by claimants, and completing claims on the same piece of property. It is against this background that expropriation without compensation must be one of the policy instruments which must be availed to the state to accelerate land reform.
At its 54th National Conference, the ANC resolved to expropriate land without compensation in order to give effect to land reform and redistribution. The expropriating authority performing an expropriation exercises, exercise public power and by that virtue, is bound by the rules of administrative laws. Issues of procedural fairness, reasonableness, legality and proportionality are applicable.
The process of arriving at the amount of compensation must be rationally connected to the purpose. The courts have timeously remarked that the means must justify the end. The essence of the ANC’s 54th Conference Resolution is to expropriate land without paying for it under certain conditions. The International Property Law, which binds South Africa, recognises nil compensation. It is against this background that we support the wording on the Bill of “nil compensation.” If it is in practice it will mean the same as expropriation without compensation. And it is accepted across the globe.
The ANC advocates for a multiple land tenure of ownership system where the state will own land for its own use or to lease. Natural and juristic persons will equally be afforded an opportunity to have free hold or title deeds. Communal land will also be recognised to ensure security of tenure.
South Africa is a mixed economy hence our land tenure ownership system should mirror our social and economic construct; it should also facilitate economic or social participation by any land holder. One form of land tenure would not suite our unique social construct. Hon members, in fact, most countries across the globe have multiple forms of tenure on land ownership. Including China which has got ownership by the state and also by communities. China is also developing towards protecting private rights. That was done in their Constitution in 2004.
In order to create an egalitarian society, to speed up land reform, restore the dignity of our people and redress the injustices of the past, the ANC supports the report of the Adhoc committee and the proposed Constitution Eighteenth Amendment Bill. The amendment Bill is line with long held ANC historic policy positions on land reform. We support the Bill as it will add into the arsenal or in the tool box for our land reform legislation.
The Eighteenth Amendment Bill in section 25 of the Constitution will make explicit that which is implicit in the Constitution. All jurisdictions across the globe have an expropriation instruments. In the United States of America, USA, they call it the eminent domain or the taking law and many other jurisdictions call it expropriation. I hope hon Steenhuisen is listening. In all these jurisdictions, the issue of compensation, just, nil or without, has been debated by legislators, jurists, economists and society at large. Therefore, as a country, we are not barbarians in debating this matter.
To the DA and the FF Plus, expropriation is even in those countries you admire, like the USA and the Great Britain. All countries of the world have an instrument of expropriation. In all jurisdictions, land reform policies evolve. In some of the countries where the revolution came through war or a violent take over like China and Mozambique, they expropriated land without compensation during the transition period. But today in both countries any expropriation is accompanied by compensation.
Zimbabwe was a negotiated settlement on the land question, they later expropriated without compensation. Today, they are in the process of compensating the farmers from whom they expropriated the land without compensation.
As South Africa, in 1994, we chose a path of a negotiated settlement, where land reform will go through a due process. Therefore, our policies on land reform must be transparent and be based on the just and equitable principles. There must be a due process to arrive at nil compensation and that is what the Bill is doing. Due to land hunger, which is more pronounced in urban areas, due to rapid urbanisation, the land must also be distributed to those who need it.
Hon members, we, want to warn against an opportunistic approach to land reform. The coalition partners of the DA and the EFF want us to believe that custodianship is the silver bullet to land reform. In the context of expropriation without compensation, the AgriSA case is important. The case dealt with the question of whether “certain deprivations caused by a regime change in rights in certain resources, amounted to an expropriation?” The Constitutional Court found that, on the specific facts in front of it, such a deprivation of property does not amount to a compensable expropriation, since the state does not acquire any property.
From the AgriSA judgment, we now know that it is possible
to vest custodianship over minerals without passing ownership because there are no title deeds to begin with. But that is not the same with land, which is regulated by title deeds or free hold. With the land, you will need to first deprive the land owner to vest custodianship to the state.
The ANC led government has a practical understanding of state land ownership or custodianship as government has administered land on behalf of the state in various spheres of government, state-owned entities and communal land which is under state custodianship. Therefore, the state custodianship is nothing new to us nor a res nova as claimed by the EFF.
The government has also transferred land ownership from the state to beneficiaries of land reform. We have also leased land to beneficiaries of our land acquisition policy and we know the challenges our people faced in this regard. Majority of beneficiaries of the redistribution programme prefer freehold as it facilitates economic participation and does not render them perpetual minors at the behest of the state. Like the Tafelkop Community who fought for 25-years to receive their titles.
The Freedom Charter calls for land to be shared amongst those who work it, not the state. Land reform is meant to restore the dignity and the economic power of those dispossessed by the apartheid and colonial governments to change ownership patterns. State custodianship would be a hollow victory as it still denies the disposed the full economic benefits and dignity of owning their land. It also does not change the ownership patterns. Disconcertingly, we will have to explain to future generations why instead of unravelling the Glen Grey’s legacy, we chose to endorse and implement it.
We will be called upon to answer why our actions mirror the words of colonialists like John Scott who styled himself as Lieutenant-Governor of Natal who said and I quote:
An uncivilized person is not easily brought to understand the value of written titles; rightly to comprehend such a question requires an experience only obtainable by a considerable amount of social progress on his own part, and until he acquired such an improved status, no title could be given to him which did not contain provisions necessary to guard him against his own ignorance, and the superior knowledge of those around him.
This was closed by this governor. So, the EFF wants to take us back to the upheaval ages of the 1800s. The road that the EFF want us to walk on is not only dangerous it is backward, it is the anti-thesis of economic freedom and democracy.
Our land problem is not characterised by a lack of state ownership, it is compounded by the lack of security of tenure for the majority of our citizens. Our people during the public hearings, demanded to own their land. We cannot as this House respond by giving them less secure forms of tenure.
In reality, even those who are beneficiaries and the black people who have succeeded in buying land on their own means in the open market through the fruits of their labour would be deprived of their land under EFF’s model.
With a stroke of a pen, people in the townships like Soweto, Atteridgeville, KwaMashu, Lekazi, Seshego, to name a few, will wake up being tenants of the state. They will have to lease their land like they did under apartheid thereby being rendered perpetual minors of the state.
Those who worked hard over years to get free hold who were under the Bantu Administration Act, will surely feel betrayed by government for taking them back into apartheid and for rendering them perpetual minors and that their assets must be administered for them by the state. The community of black people who hold title deeds, are not an insignificant minority.
The lease hold system has already been declared by our courts as unconstitutional in the Ingonyama Trust matter.
We will not be fooled by the EFF’s revolutionary sounding rhetoric that is counter revolutionary. The cult of the EFF can only fool its members who believe everything that comes from their supreme leader as gospel truth. They will flood Twitter to concur even if he can tell them that the township of Soweto is in Mpumalanga and it no longer in Gauteng.
Hon members, all progressive forces must support the Constitution Eighteenth Amendment Bill. The state must ensure that access to land is equitable. Some of us have not being shouting from stages, we have been working to create the policy framework for Expropriation with nil compensation. There is no silver bullet or one legislative instrument that can solve our land reform challenges, we need a myriad of policies and legislation to resolve this challenge.
For us to create or facilitate the growth of the working class to a rural middle class, or to grow the black middle class, the forms of tenure must link both of them into mainstream of the economy. This House has in its midst the Expropriation Bill. The Expropriation Bill, 2019, sets the circumstances under which land may be expropriated with nil compensation, for instance where land is occupied by labour tenants, where land is unused but only kept to generate income from its appreciation, where land is abandoned and pose a health and physical risk to the people. The circumstances can be expanded. You also have in your midst the Land Court Bill which will help us to resolve land disputes and develop land jurisprudence.
The Department of Rural Development will also soon process the redistribution Bill. The high level panel report has shown us that for us to accelerate our land reform programme, we need to promulgate a redistribution Bill that will help us resolve land hunger. The department is also processing the Communal Rights Land Act that will guarantee security of turner for people under communal land.
Financial institutions should be able to give access to money or resources when security of tenure is guaranteed on communal land. In this way, we can unlock the economic potential of land held under communal systems. All the above Bills will be adopted by this House, hon Steenhuisen with or without your support, and your coalition partners, the EFF and the FF Plus.
We call upon all South Africans to join hands in the land reform program for equitable redistribution of the land. It is in the interest of everyone black and white that land reforms succeed. The skewed patterns of land ownership are not sustainable. They are not a benefit to anyone. To South Africans, the ANC support the Constitution Eighteenth Amendment Bill which is anchored on giving people the land. As per the call of the Freedom Charter.
As mama Afrika, Miriam Makeba sang:
Manyanani ngoku alisekho ixesha lokulila
Mr A M SHAIK EMAM: Hon House Chair, allow me to start off by extending our condolences to the family of the farm worker who was gunned down allegedly by the farm owner offside Paarl a few days ago. House Chairperson, let me start off by saying that we must agree that the current legislation does allow for the Expropriation without Compensation. Let me also add that if there is anyone in this country who is the rightful heir to the land of this country, then it has to be the Khoi, San and the Bushmen. The first indigenous nation in this particular country.
Now, what has given rise to come here to debate this Bill? It is as a result of our failure or a limited progress that we have made because section 25 of the Constitution provides for Expropriation without Compensation. But House Chairperson, why are we debating what happened many years ago? Currently, as we speak, people’s rights have been violated. People are being evicted mercilessly and very little or nothing is being done about it.
Prime land is being sold to ensuring that we give back the dignity and identity of our people by providing them with land in this country. If you talk about the Khoi and San, the people of District Six and you talk about the people in the rural land under the Ingonyama Trust, all these people continue to have their rights violated.
The NFP will never support the nationalisation of the land in South Africa. So, for those political parties that are talking about nationalisation, they will not get our support. We believe that this would affect the rights of the individuals to own their own land and their property. Having said that, we must be very careful as to what Bills we pass in future as we know there is a lot of instability in this country, currently. The decisions we make today may come back to impact negatively on house owners and land owners in years to come.
House Chairperson, let me go one step further. We talk about compensation. Yes, indeed, there was no talk about compensation many years ago when our people had their rights violated and were forcefully removed from prime land on the length and breadth of this country. Suddenly, we are talking about giving no compensation and in my understanding it is exactly the same thing as the Expropriation without Compensation. We believe that in right of the fact that one’s identity and dignity dictates who you are that land should be provided to all citizens of South Africa. Chairperson, we must not take the land from one and give it to the other for the sake of giving. [Time expired.]
Mr W M MADISHA: House Chairperson, land restitution is extremely important. In fact, land and land tenure transformation ought to have happened more than a quarter of a century ago after the adoption of the country’s Constitution. Because that transformation did not happen, many South Africans are faced with, among others, the daily transportation of food that goes beyond R100 billion. Racism and torture continue and that the majority of South Africans cannot afford.
The question that we need to ask ourselves is that, who is responsible for that whole thing. The present government has not done that which was supposed to do. There is a lot of land, that is, the land that has not been used, land that has not been used to its full potential, land that was left by those who ran away when democracy arrived and massive land in the few hands even today. All these wrongs must be corrected given that many decisions are taken but never implemented, like what we are here discussing today. Cope calls for an urgent land audit which shall be followed by a proper land redistribution but not theft and corruption. We assure that South Africans do not fall into the incorrect basket such as it happened wrongly in Zimbabwe.
Cope says a ten-point plan must be adopted. That plan will include the full audit of all the nine provincial land reform offices and the more than the 36 operational regions. The governing and functioning of the Land Bank and the redistribution for agricultural development for programmes which must be equipped to inter alia help all the previously disadvantaged people to become land owners and farmers so that they can play advantageous role for themselves and all the poor people in the country. The poor but new land owners must be helped with the capacity to participate in equity schemes so that they can be allowed to access grants to buy into the agricultural enterprise. More has to be done. I want to say that more was to be done by this committee which gave the report but more was not done. Therefore, more needs to be done by this committee. Please go back and do more. Thank you very much.
Mr M NYONTSHO: House Chairperson, the return of the land from colonial conquest is not a matter for debate. It is an imperative of the national liberation struggle. Land is synonymous with the dignity of the people. It is the territorial right of the indigenous people who in our case have fought with the foreign invaders to preserve their birth right and human dignity.
In the Act of 1909, the British government turn the African people into pariah in their own land, given the lie and falsehood that they found an empty land. The PAC and the African people cannot accept such injustice of a unserved land that continues to be in the hands of the settler community.
Land is not a commodity that can be owned by individuals. The expropriation of land without compensation grants white people and their blood stained title deeds, the ownership and the legitimacy to our land. We call for the return of the land. We call for the reposition of every inch of our land. We call for the land restoration. Azania deserves better.
Mr M G E Hendricks: Thank you very much, hon Chair. Hon House Chair, is sad and the ANC and the EFF did not show leadership on the eve of this debate. There cannot be a demand of the right in South Africa if 90% of property has been forcible taken so to white or given by King Edward and Winston Churchill and colonial powers to whites both English speaking and Afrikaners.
The ANC is the only substantial political party left over from the liberation movement and best placed to get forcible stolen land back. That’s why South Africans all over the countries supported this 18th Amendment in large numbers, and that’s why Al Jama-ah support the amendment as amended.
Al Jama-ah is grateful for the leadership of the Chair of the Ad Hoc Committee and future generations South Africans will forever be grateful to him or taking historical step to get their land back from whites who do not want to return one inch of land. For Muslims part of land and properties cannot be in the hands of the South African state and is best left in the control of the trustees appointed and recommended by itself. Secret land like this for many cultural groups should not be in the hands of the state or entities like the contaminated land regime, CLR.
The Department of Public Works has control of secret land in past white areas and the signing of for the administration by white state urgency. Secret rituals cannot then be held at this heritage state.
The government must be ashamed for itself. Public Works must hang its head insane. Al Jama-ah cannot agree that all land must be in the hands of the state. Jan Van Riebeeck did not steal or forcible take land from Africans as we know them today. But violently took land from the Nama travel house the Khoi and san. On Heritage Day, I joined the descendants of a Big Valley Bloubergstrand, the exact site where Van Riebeeck landed. Big Valley must be given back for rent paid for the land to the Nama nation. Whites did not pay the descendants for generations while they approved benefiting from apartheid. This stolen land some appropriated had legitimate low prices of confiscated in the best interest of justice.
And for starters, cut up in size of 100 square meters when no zoning restrictions and are located to voters as they turn 18 years with the title deeds.
Africans are in confiscated land and understand that the khoi and the san and slave descendants must be firstly in the queue for confiscated land. Al Jama-ah support the 18th Amendment. Thank you very much, hon House Chair.
Adv G Breytenbach: Hon House Chair, hon members, the debate today on the Constitution 18th Amendment Bill is an incredible important debate must only be in the levels of so many reasons. The issue of land and the issue of land reform touches each South African. It goes to the very court that have be. It incaptudising essence all that had to be submitted as the American nations in 1994. This debate, the outcome thereof in the process of dealing with this Bill has laid bare all of this emotions that we as a nation must be separately work through in the run up to the 1994 elections.
Today, hon members, we must remember how we felt on 27 April 1994. We must remember that we represent not ourselves with our narrow interest but every single person who is living in South Africa and their multiplicity ranges. We must today keep in only the best interest for South Africans. We must not lose sight to prepare that in 1994 we undertook to build a new South Africa, one in which human dignity was paramount and in which we wanted to enable a prosperous dignify life for all South Africans in which the Constitution was supreme and the rule of law upheld. Unfortunately, things had not turned out quite as we expected. The road to prosperity has been turned into the death trap of unfitted corruption, theft and greed.
A small group have been turning overnight billionaires while the rest are left to struggle hiccup a daily living and break under the massive burden of supporting a country with ever shrinking taxpayers. For 28 years, meaningful land reform has been ignored. Naïve it has been made to address this very pressing issue by the governing party. It has been kicked around like the preview of football hold out when its political expedient to do so to score cheap points of the electorate and in trying to the back of the Cabinet immediately after elections.
This is a king to play with live ammunition. There cannot be good ending to it. This Bill we are debating today is still conceived the product of a deeply flawed process that would not stand up to the Constitution scrutiny. It has been made so about process itself was deeply flawed from the outset are suspect by design offered it back to the electorate. There was never defendable wall on the part of the governing party and some others to deal effectively, fairly and emphatically with the very complex question of land reform.
Public input was dealt within a perfectionary manner, subject matter expect were treated with suspicion and disdain while we had the opportunity to do a responsible with the matter that first each and every South African in a manner that will result in meaningful, effective and preserve of land reform that will impact positively on the latter of all South Africans.
Some parties use the opportunities to score cheap political points. This is nothing short of tragic. It is not what you have been sent here to do. We must, hon members, oppose this flawed dangerous and superficial piece of legislation.
It does not in even the most implicit way address the needs for meaningful land reform in South Africa. It is not the answer to land reform question. [Interjection.] I am getting there. South Africans deserve so much better. We must as a matter of extreme urgency when this Bill has failed embark on a process that will address the land reform issue. Listen carefully ... [Laughter.] ... on an honest and fair basis that will result in fair and equitable land and redistribution therefore respect the Constitution, uphold the rule of law and meet the needs of their citizens and allow for increase food security, underpin property rights in rural economy and not destroyed. We must and we can develop a process by which all South Africans had attest to that and the dignity accompanies that but in a way that encourages investment by foreign and local and satisfies the desires of all South Africans.
The DA is very much luck to be part of such a process. The contribution of the ANC in this debate is the perfect explanation of why this process is fundamentally flawed. To entrust, Chairperson, it should be such a technical process to someone who is killing not living in sound reality as ordinary South Africans like the hon Motshekga doom the process from the start. His unilateral decision to give fresh meaning to inputs by participants in the public hearings in itself fainted and wounded the process.
As to his statement today, that is, it is unfortunate that white members are allowed to vote in this debate and the value into lecturelism he pretends to way. This is a lie to the ramblings of an ailing for cadre whose present personifies the ANC is an outdated movement stuck in the past. The DA does not support this Bill. I thank you. [Applause.]
Ms K D Mahlatsi: Chairperson, Ministers, Deputy Ministers and Members of Parliament, when the late secretary-general of the SA Communist Party Comrade Christ Hani walk out of the Convention for a Democratic South Africa, Codesa, negotiations he said:
I didn’t go to prison, I wasn’t jumping around on the streets, I was in the forefront of the uMkhonto weSizwe, MK, soldiers, I was one of the first to cross the Zambesi River. I saw the blood of our people flowing like a river. They didn’t die fighting for a freedom of movement, but they died for the land. [Applause.]
Hon Chairperson, allow me to greet you in the name of the landless millions of fellow South Africans who were forcefully and brutally moved from their land following the formation of the whites-only Union of South Africa in 1910, which formalised the land theft and dispossession through the Native Land Act of 1913, in terms of which the criminal law against humanity, white people, criminally acquired 93% of the land while black people were given only 7%. Not only did the desperate and force removal of African people under colonialism and apartheid resulted in polarisation of South Africa society along racial lines, but also in extrema land shortages, insecure land rights and mass poverty for African people. This onslaught left millions of South Africans poor and landless.
We reiterate with renewed convictions that the land of our forbearers was stolen and it must be returned. As the ANC we are resolute on the amendment of section 25 of the Constitution in order to redress the historical injustice of the past with what President Cyril Ramaphosa has called the original sin.
The ANC since its formation has fought for the return of the land to its rightful owners. The resolution in South Africa is central to the achievement of the national democratic society. It requires us to reflect critically and honesty to the impact of the transformative legislation. The mandate of the ad hoc committee to initiate and introduce legislation amending section 25 of the Constitution was made to make explicit that which is implicit in section 25 in order to allow for the expropriation of land without compensation,
Chairperson, land is a very emotive issue. It is delicate and must be treated as such. South Africa is rated the most unequal society in the world with poverty and landlessness bearing a black buttered feeds. The vast majority of black South Africans are land hungry and now land thirsty. In order to eradicate the vintages of colonialism and apartheid from our democracy, the ANC in its 2019 election manifesto recommitted itself to carry out sustainable land reform programme that will expand participation in an ownership of agricultural production, advance food security and help reverse apartheid spatial patterns. The ANC remains vigilant and responsible not to lead our people towards a process that will collapse the economy and the country.
Chairperson, in the spirit of unity and cohesion the ANC initiated and led bilateral with political parties to clarify its position and find common grounds. There are different force narratives peddled against the ANC position. On the amendment of section 25 of the Constitution I will reflect briefly on them by giving the correct narrative of the ANC position on the and question. During the bilateral the DA and the FF Plus maintained their historical right-wing posture. They continued to vehemently reject the submissions of the ANC. They careless about the people of Alexandre, Gugulethu, Khayelitsha, Caleb Motshabi and everywhere else where our people are subjected to vintages of colonial and apartheid legacy. Instead of contributing meaningfully to the democratic process, they choose to constantly threaten to take Parliament to court and challenge the amendment of section 25. They have no reason to challenge the legitimate and democratic process meant to atone the original sin. Theirs id to rule the country through the back door of threats. They threaten to take this process to court from day one.
The ACDP had no prayer for the original sin and choose to remain mouthpiece of the right-wing element. They were no different from the FF Plus even the words of Archbishop Tutu could not knock consciousness to their hearts when he said:
When missionaries came to Africa they had the Bible and we had the land. They said, let us pray. We closed our eyes. When we opened our eyes, we had the Bible and they had our land.
If the hon Rev Meshoe’s party cannot at least borrow wisdom from Archbishop Tutu the man of cloth, what more can be done. Even Isaiah 1:17 says:
Learn to do good, seek justice, correct oppression, bring justice to the fatherless.
Repeat after me, “Moruti” [Reverend). Correct oppression!
The IFP said nothing, hon Chairperson. Absolutely nothing! Their approach on the land question remain Ingonyama Trust and anything else doesn’t matter.
Chairperson, the EFF stands here and boldly lie to the nation that the ANC is not willing to implement its resolution on the land question. They have appointed themselves as spokesperson of the ANC on matters of national importance. The EFF has no clear policy direction. They have the slogan Azwigi: land and jobs, with a chorus of nationalisation of the land, but with no clear policy. We met more with the EFF than any other political party during bilateral. We met more with the EFF more than any. [Interjections.] They just came to display their arrogance towards the resolution of the ANC on the land question. They came with demands heavily armed with rigid position and high level of unwillingness to negotiate even or when balance of evidence was not in their favour. They dislike anything progressive and they are very prone to anarchy.
The EFF is a victim of its own making, a result of their own misplaced ideological tool of analysis, a child concussion of what they have termed Marxist, Leninism and Fanonism. They have of recent dropped the Pan Africanism, Steve Bikoism, Thomas Sankarism from those tools. They move from one ideological theory to the other. Today, they don’t want the DA, tomorrow they impose themselves on the DA. These ones can never be trusted with the revolution. Amílcar Cabral had the lax of the EFF in his mind when he said:
Hide nothing from the masses of our people. Tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures. Claim no easy victory.
To them we had nothing but cries of easy victory from the race circus.
We differed with the EFF in three issues, namely, state custodianship, nil compensation and the cut-off date on the Native Land Act. Let me clarify these issues. On state custodian the EFF maintain their position that the state should own land. We asked them about the security of tenure and frivolous title where each and every South African can have a right to total ownership of the land. They came up with a concept of quasi custodianship, an indication that the ideological tools of analysis are blunt. Fellow South Africans, quasi custodianship means that the state can allocate land to individual through contractual agreement. However, it does not give guarantee to security of tenure. It therefore means that the state can remove anyone as long as it can justify its deeds. The quasi custodianship is nothing but a modern apartheid regime scam. This is what apartheid has done to our people. It removed them from the prime and lucrative land to barren land. We rejected their proposals and maintained the two spirit of our Freedom Charter precisely because the fundamental basis of all wealth and power is the ownership and acquisition of freehold title to land
The words of Dr A B Xuma, the elected president of the ANC in 1940, during the presidential address on 14 December 1941. Fellow South Africans, you have a right to land as stipulated in the Bill of Tights. The ANC is not confused. We cannot continue to distribute tittle deeds to our people and still hold the land, the very same land on their behalf.
Hon Chairperson, on the compensation at no point did the ANC propose tax to the amendment section 25 speaks of compensation. Instead we speak of nil compensation. The ANC’s choice in the usage of words, nil compensation, is in line with acceptable global standards and informed by the international and the Constitution prescribes that we take such into consideration. I hope hon Thring is listening. Had they read the amendment carefully without emotions, they would have known that consideration or compensation is for improvements and not on the land.
Hon Chairperson, the ANC acknowledges that the Land Act of 1913 created a monster that formalised the land theft and dispossession in our country. However, in the spirit of equality given the shortage of land and land hunger, redistribution of the land remains the best alternative to anchor our land reform programme. The land has exchanged many hands - numerous times for that matter. Based on the balance of evidence and the backlog on land claims. The removal of the Land Act of 1913 will regress the objective of our land reform programme. However, the ANC has not closed any further engagements on subsection 7 of section 25.
The realisation of expropriation of land without compensation does not end with the amendment of section 25 of the Constitution. This is one of the mechanism that will enable the state to realise its land reform policy objectives. For us in the ANC will forge ahead with the progressive land reform programme making effective implementation of its three pillars: restitution, redistribution and security of land tenure. We take this debate on land question as part of a continuous programme.
Hon Chairperson, allow me to speak to the caucus of the ANC led by the Chief Whip, Pemmy Castelina Pamela Majodina. I know how you feel, comrades. But I want you to remember the words of Thabo Mbeki when he said:
Gloom and despondency have never defeated adversity. Trying times need courage and resilience. Our strength as a people is ...
The CHIEF WHIP OF THE OPPOSITION: House Chair, I was just wondering if the hon member at the podium would take a question about being part of the land as she owns two properties in the south ... [Interjections.]
The HOUSE CHAIRPERSON (Mr C T FROLICK): Hon member, I did not give you permission to ask her a question. There is no question.
Ms K D MAHLATSI: Absolutely not!
The CHIEF WHIP OF THE OPPOSITION: So, two properties that ... [Interjections.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon Chief Whip of the Opposition, you know the Rules. And you know that you are transgressing the Rules now.
Ms K D Mahlatsi: Gloom and despondency have never defeated adversity. Trying times need courage and resilience. Our strength as a people is ... not tested during the best of times.
Fellow South Africans there comes a time where slogan do not matter, and singing revolutionary songs do not matter. This is the time where numbers do matter. “Ba ahi ba Afrika Borwa”, [ South African citizens] no political party commands absolute two-thirds majority in this House. This is the time to see who are the true revolutionaries of our people. The 230 battalion of the ANC is here. The sons and daughters of John Langalibalele Dube, the first president of the ANC, are ready to handover the land of our forefathers to its rightful owners. To the DA and the FF Plus this is the time for you to be on the right side of history. To all other political parties let consciousness speaks to you. Remember the words of Solomon Kalusha Mahlangu when he said:
Tell my people that I love them and that they must continue to fight. My blood will nourish the tree that will bear the fruits of freedom. A luta continua!
The land was stolen, the land must be returned.
Hon Chairperson. Let me take this moment to respond to two issues. First, the DA and FF Plus, clearly there is confusion in terms of separation of powers. Payment of land would be executed by the executive, and not the judiciary. No court will decide in terms of how much payment must be given to anybody in the process of land. Regarding the ATM and the FF Plus, the ATM and the EFF are sitting in the same bed. When we met with them they agreed on everything therefore we were not shocked with the views of the ATM on this podium. But unfortunately for the UDM, the general, you of all people. When we wanted to meet with you, you refused. You never made any submissions on the amendment, however, you come here today and grand stand and speak of us selling out. Why didn’t you want to meet us while we are selling out? To the IFP, it is quite unfortunate, quite unfortunate, given the discussions and everything that have taken place. You come here and grand stand and speak about corruption in the ANC. Unfortunately, in your case yours is the Ingonyama Trust and nothing else. If we don’t speak about the Ingonyama Trust and nothing, you would not agree with us. Jon Mulder, maybe we must tell people of South Africa that you wanted ...[Interjections.]
Mr M HLENGWA: Hon Chairperson!
The HOUSE CHAIRPERSON (Mr C T Frolick): Take your seat, hon member. Why are you rising, hon member?
Mr M HLENGWA: Can the member take a question?
The MINISTER OF SOCIAL DEVELOPMENT: Chairperson, I have been raising my hand forever.
The HOUSE CHAIRPERSON (Mr C T Frolick): Are you prepared to take a question, hon member Mahlatsi?
Ms K D MAHLATSI: No, Chairperson!
Mr M HLENGWA: I thought as much.
The HOUSE CHAIRPERSON (Mr C T Frolick): The hon member is not prepared to take a question.
Mr M HLENGWA: Thank you very much.
The HOUSE CHAIRPERSON (Mr C T Frolick): The hon member is not prepared to take a question, Please proceed, hon member. Please proceed, hon member
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Can we check the sobriety of the hon Hlengwa?
The HOUSE CHAIRPERSON (Mr C T Frolick): Proceed!
Mr M HLENGWA: Hon Chairperson, on a point of order.
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon Hlengwa, what is your point of order now?
Mr M HLENGWA: I would like the hon the Minister of Justice and Correctional Services to withdraw the remarks that he just made. It is out of order and quite frankly very childish.
The HOUSE CHAIRPERSON (Mr C T Frolick): I didn’t hear the remark, hon member.
Mr M HLENGWA: I would like you to study Hansard, but he knows exactly what he had said and if he has any honour he would withdraw it.
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon member, I will look into the matter and I will deal with it if there was any transgression of the Rules. Continue, hon Mahlatsi.
Ms K D Mahlatsi: When we met with the FF Plus, while we were discussing about the cut-off date of the 1913, what they wanted asked us whether are we willing to give them a probond Imagine in the democratic dispensation an organisation still believe that apartheid must still persist in this times.
With my 35 minutes that is left ... [Interjections.]
The HOUSE CHAIRPERSON (Mr C T Frolick): No, hon member, I must disappoint you. Your time has expired. The officials at the Table did not restart the time. Unfortunately, your time has expired.
Ms K D MAHLATSI: We support this report.
The MINISTER OF SOCIAL DEVELOPMENT: Chairperson, I have held my hand up for a long time. It is Minister Zulu.
The HOUSE CHAIRPERSON (Mr C T Frolick): Minister Zulu you are saying you have your hand up? I cannot see you hand from where I am sitting.
The MINISTER OF SOCIAL DEVELOPMENT: Chairperson, I have had my hand up long before.
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon Minister, it was not brought to my attention that you had your hand up.
The MINISTER OF SOCIAL DEVELOPMENT: But that is exactly where the problem lies with the people working in front there. I am behaving in my best way. I was told I must raise my hand, and my hand is up. This is the second time where my hand is not seen.
The HOUSE CHAIRPERSON (Mr C T Frolick): Thank you, Minister. Hon members, that concludes the debate.
The MINISTER OF SOCIAL DEVELOPMENT: This is not fair.
Question put: That the Bill be read a second time.
The House divided.
The HOUSE CHAIRPERSON (Mr C T Frolick): The Speaker had determined that, in accordance with the Rules, a manual voting procedure would be used for this division. Firstly, in order to establish a quorum, I would like to request the Table to confirm that we have the requisite number of members physically present in the Chamber and on the virtual platform to take this decision. Party Whips would be given an opportunity to confirm the number of members present and indicate if they vote for or against the question. A member who wishes to abstain or vote against the party vote may do so by informing the Chairperson.
I have been informed by the Table staff that we do have a quorum and we will thus proceed.
Hon members, this Bill falls within the ambit of section 74 subsection 2 of the Constitution. A supporting vote of two-thirds of the members of the Assembly is therefore needed. This amounts to 267 votes in support of the Bill. Although a division has been called we would have put the matter to the House anyway. That’s the requirement of the Constitution.
A quorum being present in terms of Rule 98(1), voting commenced.
AYES – 206: [TAKE IN FROM MINUTES]
NOES – 145: [TAKE IN FROM MINUTES]
Question not agreed to in accordance with section 74(2) of the
Bill accordingly not read a second time.
The HOUSE CHAIRPERSON (Mr C T Frolick)
The HOUSE CHAIRPERSON (Mr C T Frolick)
The HOUSE CHAIRPERSON (Mr C T Frolick): You will recall that a point of order was raised by the hon Hlengwa and I undertook to the House that I will listen to the recording and look at the Hansard to see exactly what was said. It was not audible to me at that time. I sincerely had the opportunity to do so.
The Minister of Justice and Correctional Services said, and I quote: “Can we check on the sobriety of the hon member?” This was in reference to the hon Hlengwa. Therefore, the Minister was effectively asking whether hon Hlengwa is drunk. That is out of order and the Minister must withdraw.
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: Hon House Chairperson, I did not say he was drunk, but I was ... [Interjections.]
The HOUSE CHAIRPERSON (Mr C T Frolick): Hon Minister, you must withdraw the remark.
The MINISTER OF JUSTICE AND CORRECTIONAL SERVICES: I withdraw the remark, hon House Chairperson.