Section 25 of the South African Constitution sets out your and my rights with respect to property. If South Africans are not ultra-vigilant, the ANC will gut those rights.

The State’s right to expropriation without compensation (EWC) is implicit in Section 25 of the South African Constitution, nothing needs changing.

Not so, argues the ANC and their EFF allies. EWC must be made explicit and to that end the ANC initiated and managed a multi-party parliamentary process culminating in a draft proposal (see below) to amend Section 25, which was Gazetted just before Christmas with a deadline for comments on the 31 January 2020.

Now, mere days before the deadline, we learn that the draft proposal for comment is in fact a dummy or, more exactly, a decoy.

This is the proposed draft amendment (changes to the Constitution indicated in bold)

(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application —
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court, provided that in accordance with subsection (3A) a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil;

(3) The amount of the compensation as contemplated in subsection (2)(b), and the time and manner of any payment, must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including —
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.

(3A) National legislation must, subject to subsections (2) and (3), set out specific circumstances where a court may determine that the amount of compensation is nil.

What it means

Were the proposed amendment adopted, EWC would be explicitly mentioned in the Constitution (‘a court may … determine that the amount of compensation is nil’), however, the Constitution as such would provide no guidelines on how to identify instances where nil compensation should be paid, which would instead be left to Parliament (in other words the ANC and any coalition or ruling party that one day replaces the ANC) thereby creating a situation in which the Executive (i.e. Cabinet) would dictate to the Judiciary (i.e. Courts of law), and your protection, under the Bill of Rights, would end.

ANC volte-face

Now if that isn’t enough, days before the deadline Ramaphosa, reporting back on the ANC Lekgotla, announced that the ANC’s position differed from the Gazetted formulation we have all been asked to comment on. Instead, he informed us, the ANC’s position was that ‘the power to determine the quantum of compensation for land expropriation should reside in the Executive (i.e. him and his fellow cabinet ministers), and that the amendment should articulate such’.

The Chairman of Parliament’s ad-hoc committee on the Constitutional Amendment, Mathole Motshekga, further clarified the ANC’s position (transcription follows):

Transcription of the above interview follows:

Mathole Motshekga: No, we are a multi-party democracy, we had to agree on a formulation that would be acceptable to the political parties so that we don’t derail the process, but that formulation is subject to engagement by political parties and the people of South Africa as a whole, and, as I said, the African National Congress has given the lead to say ‘no’ to that formulation: (and) that that power should be given to the Executive and that’s why we are calling on all other political parties and to all South Africans to make their input so that when we sit as Parliament now we must be guided by the will, aspirations of the people of South Africa as a whole … The earlier formulation was to ensure that we reach consensus otherwise we would have created controversy and we would not have been able to Gazette the bill and that would have derailed the process, and we didn’t want to derail the process.

eNCA Interviewer (not named): The Gazetted formulation of the bill is different from what you now want as the ANC in (that) the Gazetted formulation, as I was showing in the slides, now the power to decide instances where … compensation will be zero, (currently) rests in the hands of the Courts, you, as the ANC, want it to rest in the hands of the Executive.

MM: That’s what the ANC is saying and we are saying that this is not the ANC process. Other political parties must make their inputs and the people of South Africa as a whole must make their inputs so that Parliament must be guided by the will of the people of South Africa as a whole not by one or the other political party.

eNCA: Isn’t it sneaky though, Dr Motshekga, isn’t it sneaky that you give us one bill that is the basis for people making written submissions and then, you know, as as I would say in South African parlance, jiggy-jiggy, you are suddenly talking about it’s it’s not gonna rest in the hands of the Courts it will rest in the hands of the Executive?

MM: You know where we have the experience that the court processes are arduous, they take time, they require resources but the Executive is a democratic government elected by the people of South Africa, they represent the people of South Africa and they must govern but we are not excluding the role of the Courts but we are not giving the Courts the first opportunity to decide, because that will last another 25 years and the people of South Africa cannot wait for another 25 years to get a resolution to this matter.

eNCA: It’s difficult for me to wrap my head around who would keep the Executive in check, in terms of, you know, making sure that, you know, because you’re now putting it in the hands of, you know, the political powers of the day to decide instances where there would be no compensation for land expropriated. Who would keep (the Executive) power in check?

MM: They are a democratically elected government but the powers of the courts to hear aggrieved parties is an entrenched power in the Constitution so any aggrieved person reserves the right to go to the court and say I have been prejudiced by the decision of the Executive, then the courts will intervene, so there is a balance there, so no one needs to fear if eventually Parliament agrees with the recommendation that the power to expropriate should vest in the Executive.

eNCA: All right, Dr Mathole Motshekga, thank you so much. Quite an interesting conversation and I must say I must admit that unless I completely missed it I wasn’t aware of this new proposed formulation where that power to decide instances where the compensation for land expropriated for restitution would be zero moves from the Courts as in the published draft bill to amend the constitution, and moves to the Executive and that’s what Dr Mathole Motshekga tells us is what the ANC is now proposing.

Milk on fire

You can see where this is going:

• elite capture: running parallel with this process, is the draft National policy for beneficiary selection and land allocation, which lists categories of persons who can start queuing for zero-rated, expropriated land and property, including, subject to provisos: spouses of public servants (para. 7.1.5), politicians holding public office (7.4.4) and state employees (7.4.7)
• electioneering: Municipal elections are around the corner (2021) so how convenient isn’t it to be able to take an EWC roadshow to the people, financed by the taxpayer
• creation of false expectations
• sleight of hand
• an enemy: note who’s now being blamed: the courts (‘we are not giving the courts the first opportunity to decide, because that will last another 25 years’ | Mathole Motshekga)
• ducking responsibility: let it be acknowledged that historical injustices have led to skewed land ownerships patterns. However our present impasse has little to do with Section 25 of the Constitution and everything to do with ANC mismanagement of the land reform process over the past 25 years (see here, here, here, here and here)
• costly redress : ‘any aggrieved person reserves the right to go to the court and say I have been prejudiced by the decision of the Executive then the courts will intervene so there is a balance there’ (Mathole Motshekga)
• assault on the Constitution: what Ramaphosa, Motshekga and the ANC are now advocating is a direct assault on the Constitution, in that there is no honouring the doctrine of the Separation of Powers (Executive, Legislature and Judiciary), and dismissal of the Bill of Rights enshrined in the Constitution, meant to protect all South Africans.

So what’s to do

Articulate, and mail your response to the draft proposal before this coming Friday: For attention: Mr V Ramaano | section25@parliament.gov.za, alternatively take the shortcut by registering your response here or, here.

For information, my response will roughly be along the following lines:

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The draft amendment must be rejected on the grounds that it:

• contradicts the doctrine against vagueness of laws and will therefore not pass constitutional muster (see The problems with the Expropriation Bill – IRR)

• fails to honour the doctrine of the separation of powers underpinning the constitution

• is dismissive of the bill of rights, enshrined in the constitution

Because expropriation without compensation is already implicit in the wording, Section 25 must stand as is.

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Acknowledgment: ‘like milk on fire’ used in the title is borrowed from Rumer Godden’s ‘you must watch children like milk on fire’ (publication, unknown).