Report: Land Expropriation Dialogue

This report speaks to a dialogue held from the 10th to 11th of May at Stay City Hotel hosted by Tshintsha Amakhya partners and local constituencies to discuss the National Assembly resolution to investigate whether a constitutional amendment should be considered to allow for the expropriation of land without compensation and, prepare participants for the coming constitutional review processes.

SUMMARY

On the first day of the dialogue, Welmien Wicomb of Legal Resources Centre(LRC) discursively unpacked the Section 25 of the Constitution to give all participants a thorough understanding before getting into any discussion about it. In her presentation, Welmien presented a discursive read and, the explanation of the entire section – including all subsections.

She explained that our constitution is paradoxical: it seeks to protect the property on one hand that under subsection one till subsection four of Section 25 – you cannot deprive people of property without the law and if you do so, for redistribution purposes, the owners should be compensated.

However, the constitution does not state compensation equal to market value. On the other hand, under subsection five till subsection nine – there are some gains for land reform purposes that when the government acquires the land it can be expropriated, redistributed and transferred in the public interest – the land reform programme is premised on this basis.

She explained all existing provisions and the mandates and, that the issue of compensation has not been tried in the court of law to give precedence outside the market value and government has not enacted laws to redistribute land and protect insecure tenure rights as required.

To conclude her first presentation, she outlined the meaning of the motion passed in parliament on February 27 and further provided the legal process and the implications to unfold with regards to the motion. She explained that it will probably take years to amend the constitution – if the Committee recommends the amendment – for Section 25 is under Bill of Rights, it will require two-thirds votes in the National Assembly agreeing on specifics. And, not ignoring possible legal battles to be waged but right-wingers.

Following Welmien’s presentation, participants broke into groups to discuss the content of her presentation. To guide the group discussions, facilitator Lenny Gentle proposed three questions: (i) Should the constitution be amended and why? (ii)What should the amendment contain? After facilitated group discussions, participants presented their views.

In their feedback, participants agreed to not entirely focus their energy on this constitutional review process alone but they want to use the political moment to push the state to deliver on land reform using existing laws as they see this as an opportunity to open up a wider debate about land rights.

Some of the participants welcomed the notion of amending the Constitution as they saw the Constitution as an impediment to land reform, whilst others contend that there are other impediments, such as a lack of political will and corruption. Irrespective of which side of the debate one was positioned, they agreed to explore further the question of who should benefit from land reform and how this process should transpire.

Welmien gave her last presentation of the day looking into the current legislation that makes provisions for Tshintsha Amakhaya constituency which comprises of farm dwellers and workers, small-scale farmers, people residing on communal and people seeking commonage land. Drawing from the High-Level Panel report, she concluded by saying that there is legislation with provisions for TA constituencies but some require to be strengthened while other laws remain to be ignored and unimplemented by the
Department of Rural Development and Land Affairs. She was referring laws like ESTA, IPILRA, and LTA.

To prepare for public participation process that is to unfold, participants began the last and the second day of the dialogue with sharing their experiences from the previous public hearings: hardly accessible venues, the hastily organized hearings located at great distances from affected regions undermining a fundamental premise of constitutional democracy with other participants saying participation in the
the legislative process is more like an empty ritual – merely rendered a political tick of the box.

To close the dialogue, participants agreed to host similar dialogues at the cluster level, broaden the discussion and organize local constituencies for the hearings. As a nation action, they have agreed to partake in a national campaign that Tshintsha Amkhaya is to embark on calling for a halt of evictions – drawing from the promise president Ramaphosa made in the Doorns.

INTRODUCTION

This report speaks to a dialogue held from the 10th to 11th of May at Stay City Hotel hosted by Tshintsha Amakhya partners and local constituencies.
On the 27 February, a resolution in Parliament was reached to investigate whether a constitutional amendment should be considered to allow for the expropriation of land without compensation. The Constitutional Review Committee was then mandated then mandated to engage with the public on whether Section 25 of the Constitution is an impediment to expropriating land without compensation as well as on what mechanisms South Africans would like to see for the implementation of land reform. These engagements will take the form of consultative public meetings as well as written submissions.

The passing of this motion has stimulated a new energy in the country towards resolving the issue of land. Given the importance of land, the opportunities of the current climate should be capitalized on so as to realize meaningful outcomes that can better the lives of South Africans, more especially Tshintsha Amakhaya constituencies. To help realise these outcomes, Tshintsha Amakhaya endeavoured to elevate the voices of local constituencies and partners doing work in the sector. It is in this spirit that Tshintsha
Amakhaya hosted a dialogue for a community and grassroots organisations aimed at creating a space to organise and discuss issues for the forthcoming constitutional review process.

Day One

Opening and Welcome

After a revolutionary rendition led by Aunt’ Magriet Prins hailing from the Doorns in the Western Cape, Sithandiwe Yeni – the National Coordinator of Tshinitsha Amakhaya – ascended the podium to welcome about 35 participants present in the room hailing from different provinces, communities and organizations in representing their different constituencies forming a national rural alliance that is Tshintsha Amakhaya.

She provided participants with a brief rationale behind the dialogue, drawing from previous dialogues partners had and other positions that have been reported in the media, that Tshintsha Amakhaya required to have its platform to articulate it position/s it holds with regard to the motion passed in the National Assembly to review the constitution to explore possibilities to expropriate land without compensation.

Yeni said, “We are all aware of a number of community debates that have been taking place since the motion was passed in parliament. Colleagues in places like George and its nearest small towns, farm dwellers in UMgungundlovu district, recently in Paarl members of Inyanda land movement gathered, TCOE hosted a public dialogue in Kwa Langa – just to mention a few. However, what has been missing is media coverage of views of ordinary South Africans particular rural citizens.”

Secondly, she emphasised that it is required that Tshintsha Amakhya has a collective action to respond to the public participation process hence the dialogue. She said, “With regards to preparations for the upcoming public hearings, we will share experiences from previous experiences with regards to public participation processes.

“From our side as TA coordinating unit, we will also like to know how do we assist TA in terms of mobilization and media coverage so we increase our advocacy in the public discourse.”

In setting the scene by unpacking the political moment (including public hearings) and gathering views on how Tshintsha Amakhaya can utilize the moment, Lenny Gentle asked participants to reflect on their first instances when heard about the possibility of changing the constitution, particularly their immediate reactions and thoughts.

In a round of reflections, participants expressed their uncertainty over property rights that they firstly had more questions than answers. These questions could be summed up but not limited to:

1. Why is the government eager to expropriate land without compensation?
2. What are the proposed changes to the Constitution?
3. What kind of property does expropriation apply to?
4. Will this temper with unsettled land claims?
5. What happens next after the motion was passed?
6. What about the parliamentary vote to finally pass the amendment?
7. How long will it take to confirm Constitutional changes?

Additionally, some sounded to have welcomed the motion as they see the Constitution as an impediment to land reform, whilst others contend that there are other impediments, such as a lack of political will and corruption.

Unpacking the Section 25of the Constitution – Property Clause

To unpack the Constitution, Welmien Wicomb began with explaining a difference that exists between parliament, court and the executive with policies in executing a mandate which is outlined in the constitution. She further explained that the motion passed in the National Assembly is not for any particular subsection of Section 25 but the entire section. And, the word ‘property’ under Section 25 does not only speak to land only but it speaks to all properties, including bonds intellectual property.

In terms of Subsection One, she said that the word deprivation could mean lots of things hence it requires a law of general application which determines the form of deprivation and avoids arbitrary means. On Subsection Two, she explained that there has been a court case where government tested the amount of compensation that is below market value or equal to zero. And, the Willing Buyer, Will Seller which operated in the means of market value was the African National Congress’ policy which is not provided in the constitution. However, she explained that for expropriation to take place – there must be an agreement with the property owner or determined by the courts.

On Subsection Three, speaking to ‘just and equitable’ she referenced Msiza judgment where government minister decided to use land reform budget allocated for that year to pay for a compensation that is above a billion rands.

She argued that if the minister took in to account provisions in Subsection Three – which includes 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 – that amount is unjust.

In terms of Subsection Four, she argued that the stated ‘public interest’ speaks directly to land reform. However, this subsection has only been used against rural communities with insecure tenure rights to relocate them in order to make way for mines, roads and other developments without paying these communities compensation than using the subsection against property owners who benefited from skewed colonial and apartheid laws. She highlighted that it seems as though property clause has a constitutional paradox that from subsection one to four, it is more about securing rights of property owners than justice. However, the change of vision is carried out from subsection five to nine – envisioning land reform project. Subsection Five speaks about redistribution of land but there exists no democratic law that informs the government in specifics of its mandate. She mentioned that there exist Expropriation Bill that has not been turned into an Act after 10 years due to inadequate public consultation. Also, Expropriation Act 63 was adopted by Apartheid government in 1975.

Subsection Six speaks to the government in securing rights of those who were deprived of tenure rights by the apartheid and colonial laws. However, she said: “There is IPLRA that has been interim since its inception in 1996 and, most government officials are still not inclined to its existence hence we have ongoing cases like Xolobeni.” And, Subsection Seven is for redress of resources and transformation hence restitution. However, the restitution process has been slow that academics have estimated that, at the same pace, it will take government about 150 years to settle all lodged claims. She cautioned that with the constitutional mandate, “No one may stand in the government’s duty.” She further explained that government has not enacted a law as required in Subsection Nine.

In terms of the process, she highlighted that it is possible to change the constitution for there have been about 16 changes to date since 1994. However, for chapter two of the constitution to change under Bill of Rights – which encompasses of section 25 – it will require 66%+ votes of parliamentarians in the National Assembly all agreeing to specific changes, including 6 out of 9 provinces. She said, “Even if they all do agree, there will be contestation in courts of law from those who disagree.” She was referring to possible constitutional court cases against the motion. She closed by saying that the process will be a ‘high-hurdle’.

Welmien’s input was interactive and at most, participants were asking her similar questions to those they have raised on their reflections in plenary. This could be summarized as:

1. Why is the government eager to expropriate land without compensation?

– There is a blame on amounts paid to compensate property owners at market value as an impediment to land reform. Now, the government is under pressure to fast-track land reform for it has failed to reach its set targets.

2. What are the proposed changes to the Constitution?

– To expropriate land without compensation, proponents implore that the government has to amend Section 25 of the Constitution which speaks to property right and scrap out ‘compensation’ as stated in the subsection.

3. What kind of property does expropriation apply to?

4. – There is no certainty on which land has been earmarked for purposes of expropriation. Residential, agricultural, communal or urban land might be up for expropriation. However, judging from the debates – proponents might be targeting expropriation of agricultural land.

5. Will this temper with unsettled land claims?

– There exists no indication yet on how outstanding claims will settled. However, the department for Land has received the year 2018/19 budget allocation for restitution.

6. Why is the government eager to expropriate land without compensation?

– There is a blame on amounts paid to compensate property owners at market value as an impe– To expropriate land without compensation, proponents implore that the government has to amend Section 25 of the Constitution which speaks to property right and scrap out ‘compensation’ as stated in subsection 3.

7. What kind of property does expropriation apply to?

– There is no certainty on which land has been earmarked for purposes of expropriation. Residential, agricultural, communal or urban land might be up for expropriation. However, judging from the debates – proponents might be targeting expropriation of agricultural land.

8. Will this temper with unsettled land claims?

– There exists no indication yet on how outstanding claims will settled. However, the department for Land has received the year 2018/19 budget allocation for restitution.

9. What happens next after the motion was passed?

– The matter is now with the Constitutional Review Committee, which will review whether expropriation without compensation is prudent. The committee will work around the wording of amending Section 25 and how much of the current pieces of legislation would have to be repealed due to the amendments. The committee has to report back to Parliament by mid-September.

10. What about the parliamentary vote to finally pass the amendment?

– The proposal would have to be approved by at least six of the nine National Council of Provinces. In addition, two thirds (about 67%) of the National Assembly would have to agree to change Section 25. For Section 25 is under Bill of Rights, there is a possibility of taking the matter to the courts for a declaratory order or interdicts.

11. How long will it take to confirm Constitutional changes?

– It might take years as South Africa’s entire legal jurisprudence on property ownership is affected fundamentally. She said expropriation of land without compensation impacts other pieces of legislation that have to be reviewed.

12. What about the parliamentary vote to finally pass the amendment?

13. How long will it take to confirm Constitutional changes?

Following Welmien’s input, participants then broke into fifteen minutes’ tea break that was followed by facilitated rigorous discussions. These discussions were guided by the following questions:

1. Focus on the constitutional process and shape it?
2. Ignore or not prioritize the process and focus on the current campaigns?
3. Use the public process around the constitution to build a common campaign?

Reporting back to the plenary from group discussions, most participants sounded skeptical about the constitutional review process citing governments’ lack of political will since 1994, the declining budget for land reform, a sudden advocacy only when the country is approaching general elections with African National Congress decline in voter’s turnout, etc. Therefore, participants agreed not to entirely focus their energy on this constitutional review process alone but they want to use the political moment to push the state to deliver on land reform using existing laws.

Furthermore, they see this as an opportunity to open up a wider debate about land rights and economic justice. They argued that the Constitutional Review Committee will have to seize on its mandate and broaden the debate across society. And, they required assistance from Tsthantsa Amakhaya secretariats in developing a media strategy to increase their presence in the public debate.

Should the constitution be amended & why? What should the amendment contain?

After lunch, partners presented views and those of the local constituency they work with on which land should land be expropriated and, who should get it and under what terms – including views on the motion passed by the National Assembly. Support Centre for Land Change(SCLC) seemed to be of the view that Tshintsha Amakhaya should use the space provided by the constitutional review process to raise the failures of the land reform programme. Collin Najoe from a local constituency supported by SCLC said, “As farm workers, we are both skilled and ready to take the land.

We hope the government will fast-track the process and assist us with post-settlement support. In terms of the constitutional review process, we should organize marches outside the hearings to exhibit all the failure of land reform – particularly the plight of farm workers. Farm workers should be prioritized!”

Speaking for Association for Rural Advancement(AFRA) and the local constituency the organization works with – Nompumeleo Khubekha said, “Our view is that expropriation without compensation is possible in the current constitution for former labour tenants, it requires more of a political will.”

To add to Khubekha’s input, Jabulani Luthuli said, “Does compensation only mean a monetary value?” Nokuthula Mkhize of Siyanqoba answered, “We have already paid with our blood, sweat, and tears.” Frederick Koopman working with the Surplus People Project(SPP) and the movement called Food Sovereignty Campaign(FSC) said that he does not have a mandate from the immediate constituency yet, they are still to have a dialogue on the topic at hand.

However, in his personal capacity, he is of the view that ‘this is a delaying tactic as it will require a long process’. Secondly, “the ruling party has not stated which land is to expropriate.

” Therefore, he proposed: “The government should redistribute all State land to test its commitment to the course” Lastly, he mentioned how even president Cyril Ramaphosa is skeptical about land reform as he was quoted having said that ‘food security should not be compromised’ so he would like to ask the president: “Food security for who?” Harry May from SPP supported the position taken by Frederick but he further stated that they will use the platform to ‘deepen land struggles’. In his closing remarks, he mentioned that they, as SPP, have adopted FSC declaration and they will be assisting communities to send the submissions to the Constitutional Review Committee.

Nolan Theodore from the local constituency working with the Trust for Community Outreach and Education (TCOE), he was of the view that Tshinstha Amakhaya should utilize the space ‘to politically educate the masses about land reform, its failures and a need for agrarian transformation’.

In addition, Boyce Tom of TCOE added that they have hosted numerous dialogues on the motion with different constituencies that they are still to finalize their position and prepare for participation processes. David Gonqose from the Dwesa Cwebe in the former Transkei spoke of all traditional practices and livelihood activities that have been obstructed in the area due to the privatization of parks, land, and beaches that the ancestral community has been deprived of its herbal and fishing rights.

Therefore, he sees the motion as an opportunity to raise other nuance issues related to privatization of property and its obstruction to livelihood. Thabo Manoko from Tolwe in Limpopo working with farm workers and former labour tenants supported by Nkuzi Development Association, in his input he mentioned that the constitution already provides expropriation for labour tenants like him. Therefore, the government should use existing legislation to advance their situation and begin with relinquishing state land. Supporting Manoko’s view was Molateolo Mohale of Nkuzi, who stated that as Nkuzi they will assist the government in reaching relevant constituencies and communities in dire need of land. And, further advocate for the popular education of the constitution beforehand and smooth logistical arrangements for communities in rural areas.

Mantombi Ndaba speaking from a local constituency that works with Farmers Support Group said that the issue of land has brought division in the area: due to chiefly rule and contesting interests over claimed land. She further stated that she supports expropriation of land for small-scale farmers but, they should receive compensation for all the atrocities they have encountered which includes forced removals and forced labour for white farmers. The discussion was very long, with some having have welcomed the motion as they see the Constitution as an impediment to land reform, whilst others contend that there are other impediments, such as a lack of political will and corruption. Irrespective of which side of the debate one was positioned, critical questions still needed to be answered around who should benefit from land reform and how this process should transpire.

What are the current laws/legislation that make provisions for TA Constituencies but were never implemented?

In her final presentation of the day in the afternoon, Welmien looked into legislation that makes provisions for TA Constituencies but was never implemented. Drawing from the High-Level Panel, a panel chaired by former president Kgalema Motlanthe to evaluate the progress of key legislation passed by parliament and provincial legislatures since 1994, she argued: “The Constitution already provides for three rights to land; the right to equitable access to land, the right to tenure security and the right to restitution for everyone in the room”

For farmworkers and former labor tenants, she argued that despite the constitutional provisions and legislative frameworks – instances of farm evictions and human right violations still persists at the farms. There exist Labour Tenants Act and the Extension of Security of Tenure Act (ESTA) but the Department of Rural Development and Land Reform has not issued a comprehensive plan to implement both laws. Additionally, the redistributive components of both laws have been neglected – including the budget allocation. For people residing on communal land, she explained that the protections in the Interim Protection of Informal Land Rights Act 31 of 1996(IPILRA) which remains largely unimplemented by the Department of Rural Development and Land Reform. Additionally, there are traditional leaders taking control over communal land. And for people who desire to utilize the commonage land, the Commonage Land Policy is largely obstructed by Municipal System Act where Municipalities make regressive bylaws and there is no clear indication on whose mandate it is between the department and local municipalities in executing land reform programmes through commonage land.

Then, for the last session of the day, participants had a discussion – throwing ideas around – on how they can use the provisions in the existing laws for the local campaigns and ongoing struggles. What stood out of this session was a call for a common campaign to run parallel with public participation processes. A common thread was to halt evictions.

Day Two

The purpose of the swift day that was day two of the dialogue was mainly to prepare participants in organizing and mobilizing for the upcoming public participation processes. Following the morning contemplations and renditions, participants recapped and linked what was to unfold on the second with what transpired a day before. In so doing, participants reflected on their experiences with regards to previous public participation in the law-making processes.

They all seem to have encountered:

Proposed dates and venues that were only made public at short notice without providing communities and organizations with the opportunity to adequately prepare for the hearings.

Venues that are hardly accessible to vulnerable communities

Rural communities failing to reach the venues as a number of allocated districts with hearings are at a far distance, and very limitedTransport that was communicated to those who reside outside cities and towns hosting the hearings.

Inadequate consultation in the lawmaking processes and poor political education that is held before hearings, participants said they have deliberated upon content without proper understanding while others confirmed to not knowing about required political education at all.

Lack of advertisement in the media

They said this inadequate public consultation processes, lends itself to litigation and other contestations – most processes have been subjected to further delays in the past.

Following this sharing of experiences, participants broke into groups to discuss:

1. How the participation process can be used?
2. Are there existing campaigns which can be highlighted?
3. What should Tshintsha Amakahya do?

After breaking for an hour or so into group discussions, participants came back to report. What came out as what most participants were saying as answers to question one and two were that:

They will report back to their constituencies, open the discussion on amending the constitution with proposed processes and try to reach a consensus which will inform and further their mandate

They suggested a mobilization of local constituencies into a cluster or provincial pickets outside or inside the hearings at each province to highlight the continuing evections

Those who speak at the hearings, they have suggested that they should not only speak about constitutional amendment but also raise the failure of land reform and existing laws that could be used in the interim.

Proposed action: a campaign to halt evictions

(NB: A campaign is subject to change per clusters’ decisions. However, for an internal discussion, a note speaking to what was discussed and agreed to will be shared in a separate mail to all TA members).

On that note, the dialogue adjourned.

CONCLUSION

This dialogue became a success through presentations, debates, group discussions, and other forms of engagements. In terms of interacting, participants were able to give maximum participation on burning issues without being emotional. Also, they were able to interact outside the dialogue: during a break and in the evening.

Progress towards intended outcomes was recognizable at the end of the dialogue:

1. Participants seemed to have an at least common understanding of what is entailed in the current constitution, existing argument for and against the amendment, the public participation process that is to unfold and how long it might take.
2. Participants also shared their views on the motion and the process to unfold and they shared past experiences with public participation processes.
3. Participants realized the need to mobilize and organize collectively and came up with a campaign that encompasses all.
4. Participants seemed keen on ensuring maintaining the momentum by carrying on with the dialogue, sharing the knowledge, and supporting local constituencies to allow for an adequate response to public participation processes. Also, sustaining their activism post the hearings.

Notable issue:

All participants promised to report back to their respective local constituencies and orgnanisations to deepen their mandate by sharing the knowledge gathered and proposals made at the dialogue. Then, participants will report back to their respective clusters on their mandate and come up with cluster or provincial plans in response to the hearings. At the cluster level, once it is decided on how to tackle hearings the cluster will report to the national coordinating unit interim of assistance they require to further action. For an example, if it is decided that a cluster will picket outside the hearing at a respective province, a cluster will write to the national coordinating unit in terms of visibility material and media strategy. To escalate this campaign, the coordinating unit will propose a national plan at the next indaba on how to have national mass action. In the interim, the unit will design the campaign action, its message, and material required to execute it.