AfriForum envisages several legal actions against expropriation without compensation

6 February 2020

AfriForum submitted its comments on the proposed policy on the selection of beneficiaries and allocation of land today, and reiterated that the civil rights organisation intended launching several legal actions against expropriation without compensation, if necessary.

In the legal opinion that AfriForum submitted to the Director-General of Rural Development and Land Reform today, it is argued that the policy on the selection of beneficiaries and allocation of land would be unconstitutional on several grounds.

“In addition, AfriForum has been involved in a legal tussle since 2018 to have the report by the Constitutional Review Committee – recommending the amendment of the Constitution – declared invalid, on the basis of several procedural shortcomings in the run-up to the acceptance of the report. This case is likely to be heard in the coming year. Furthermore, AfriForum has already submitted a legal opinion to Parliament, arguing that the proposed amendment of Section 25 of the Constitution would be in conflict with several other provisions of the Constitution,” said Ernst Roets, AfriForum’s Head of Policy and Action.

According to AfriForum, the Government’s policy on the division of land and the selection of beneficiaries is unconstitutional and unfair for several reasons. “Firstly, it violates Section 25 of the Constitution in several respects, because in terms of this policy land beneficiaries would only receive access to land – ownership would not be transferred to these people. Consequently, the State would in effect be the sole owner of the land. Implementation of this policy would also in effect mean that white people will be excluded from the Government’s allocation of land. Only persons defined as previously disadvantaged (black Africans, brown people and Indians) would be considered as beneficiaries. ‘Previously advantaged' (white) people are explicitly mentioned as people who do not qualify to apply for land; in fact, these people are equated to foreigners. White military veterans are also excluded, while military veterans who were in the defence force post April 1994 will be prioritised as beneficiaries,” Roets said.

If this policy is implemented, it could also result in investors withdrawing from the country, since it would only be possible to lease industrial land from the state. In addition, a servitude with right of first refusal will be registered in favour of the Department of Rural Development and Land Reform. The servitude would stipulate for what purposes the land may be used and  that the department will reclaim the land if it’s not used for the purposes originally determined.

This policy could also result in political benefiting because spouses of civil servants would qualify as beneficiaries and politicians would be able to apply for access to land a mere 12 months after quitting politics.

Roets has analysed this policy and its possible consequences together with the constitutional law expert Adv. Mark Oppenheimer (who drafted AfriForum’s comments) and AfriForum’s legal representative, Willie Spies. View the video here: https://youtu.be/gowx3DImlCc.

Issued by Hesti Steenkamp, Media Relations Officer, AfriForum, 6 February 2020