‘Land remains central to the imagination of citizenship of today’s ANC. Yet the evidence since 1994 shows hesitation, timidity and indifference to the resolution of land. The disaster with the abortive constitutional amendment has been illustrative of a larger malaise.’

In a comprehensive analysis outlining the struggle and dispossession of land in SA since as far back as 1910, Advocate Tembeka Ngcukaitobi SC, an acting judge and a member of the SA Law Reform Commission, says while the ANC negotiated a radically transformative Constitution in 1996, it seems to have been reluctant to enforce it.

Writing on the Mail & Guardian Online site, Ngcukaitobi notes Section 25(2) of the Constitution explicitly states that property (including land) ‘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.’

‘Quite clearly,’ he says, ‘land can be expropriated by the state’.

The ANC is entitled to pass a law, provided it complies with the Constitution, to grant itself the power to expropriate land to meet the land crisis.

‘Yet in our statute books we remain stuck with the 1975 Expropriation Act. There is no reason this is so.’

The second facet of section 25(2) concerns compensation.

Ngcukaitobi says since 1997 the ANC adopted a policy of ‘willing seller, willing buyer’ through which it has been over-compensating white landowners, in breach of the constitutional requirement that compensation must reflect an equitable balance between the interests of those affected and the public interest and in any event must be ‘just and equitable’.

‘The ANC has never sought to flesh out in policy or legislation the content of just and equitable compensation,’ he adds, noting that for the past four years, the ANC has been obsessed with the notion of depriving landowners’ financial compensation.

‘Until December 2017, the idea did not appear from any of the historical records of the ANC. Its recent adoption by the ANC has been influenced by the EFF. But it is unclear how the ANC proposes to flesh this out after the predictable failure of the proposed constitutional amendments.’

The way forward?

Ngcukaitobi suggests amendments be made to the present draft of the Expropriation Bill, to render it applicable to wider land reform expropriations.

‘At the moment, section two of the draft Bill limits its application to property acquired for state use. So, for instance, a farm expropriated for redistribution will fall outside the purview of the new Expropriation Act.’

Ngcukaitobi notes that farmland is regulated by the restitution legislation, passed in 1994.

‘But that legislation restricts expropriations to instances where there is no dispute about the validity of the claim. The effect of this is even after the Expropriation Bill is passed into law, the state will not have the wider expropriation powers to effect land reform, under the Constitution. The Valuer-General has no powers of expropriation. Its role is to determine the value of the land, using the modality in its own legislation.’

Another approach, suggests Ngcukaitobi, is to leave the ‘granular intellectual work’ to the courts.

‘If this is the approach to be adopted, it is necessary for the state to play an active role in the judicial system, pushing through the cases it has selected to test the limits of the Constitution.’

Ngcukaitobi says the state needs to be a true ally of the landless, ensuring that it respects their rights to restitution and that it is committed to constitutional governance.

‘Our Constitution is a product of war. It was adopted so that our basic rights are sourced in law. Land restitution is not a favour to be dispensed by the government, at will. It is a right enforceable by law.’

Full analysis on the Mail & Guardian Online site