# The land bill is a curate’s egg and, right now, it’s a bit scrambled

- Link: https://dearsouthafrica.co.za/2020/01/20/the-land-bill-is-a-curates-egg-and-right-now-its-a-bit-scrambled/
- Published: 2020-01-20T12:58:29+02:00
- Author: dearSA

![](https://cdn.dearsouthafrica.co.za/wp-content/uploads/2020/01/20191200/Screenshot-
60-1024x466.png "Screenshot (60)")

## Have your say: The Draft Constitution Eighteenth Amendment Bill has been published by the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution to allow for land expropriation without compensation. The committee has called for comments on the bill by the end of January 2020.

Since expropriation without compensation (EWC), regained prominence in government
rhetoric, there has been much public concern over the potential implications of 
nil compensation. There are many calls for concerned citizens to submit their comments
to oppose the bill and save South Africa from a Zimbabwe-esque future. Esteemed 
economist and entrepreneur, Dr Lawrence McCrystal, has already submitted his [eight reasons](https://www.biznews.com/thought-leaders/2020/01/10/eight-reasons-sa-land-grab-legislation-evil)
for opposing the amendment. But I propose that we shouldn’t be too hasty to oppose
this bill, because it might actually open the door to the very thing we need.

First, let’s look at what the bill entails:

1. The aim of the bill is to allow for _land and any improvements thereon_ to be
expropriated _for purposes of land reform_ with nil compensation payable. Some responses
to the bill have cautioned that it will allow the government to seize your car, 
bank account and any other property, but the wording of the amendment clearly indicates
that EWC is restricted to land, and improvements thereon (such as buildings). It
is also restricted to expropriation for land reform purposes only and will not allow
the government to seize your property willy-nilly.

2. The preamble highlights the rationale for the amendment in four “whereas” statements:

a. To accelerate land reform to address the injustices of the past, especially considering
that “hunger for land among the dispossessed is palpable and the dispossessed are
of the view that very little is being done to redress the skewed land ownership 
pattern” – I will return to this statement later;

b. To make explicit what is already implicit, ie: that nil compensation is a legitimate
option for land reform;

c. To address historic wrongs – this is equivalent to addressing the injustices 
of the past, the first “whereas” statement, and adds nothing to the bill; and

d. To ensure equitable access to land and empower the majority of South Africans
to be productive agricultural citizens.

3. The actual amendments are in two parts:

a. An addition to Section 25(2)(b) to allow a court to determine nil compensation
for the expropriation of land and any improvements thereon for the purposes of land
reform; and

b. The addition of subsection 3A as follows: “National legislation must … set out
specific circumstances where a court may determine that the amount of compensation
is nil.”

Second, let’s look at some of McCrystal’s objections. His first is that amending
the Constitution is unnecessary as existing legislation is already adequate. [I agreed with this statement](https://www.dailymaverick.co.za/article/2018-06-11-on-the-necessity-of-and-mechanisms-for-expropriating-land-without-compensation/)
in my June 2018 _Daily Maverick_ article, wherein I referred to the call for EWC
as premature. A year-and-a-half later, my position has not changed (by much). It
is already implicit in the Constitution (Sections 25(2)-(4)) that nil compensation
could be paid for property expropriated in the public interest if it is just and
equitable for such to occur. To my knowledge, this has never been tested in court.
But note that currently, property is not limited to land, and the purposes of expropriation
are not limited to land reform. The amendment bill will impose these limitations
on the Constitution. This could be a good thing for property security.

McCrystal goes on to show that people don’t want land – [unemployment](https://irr.org.za/reports/occasional-reports/files/race-relations-in-south-africa-2013-reasons-for-hope-2017)
is a far more pressing concern, as reported by the Institute for Race Relations 
in 2017. Yet, Chris Williams-Wynn, surveyor-general of the Eastern Cape, notes that
in the 2005 Land Summit meetings held throughout South Africa, there was an overwhelming
indication that people want to own land. [In an article also published in 2017](http://www.ee.co.za/article/land-rights-people-want.html),
he reports the results of his own fieldwork investigating the question of what people
want. His findings agree with the Land Summit findings: People want land rights.
This accords with the first “whereas” in the preamble to the bill: The “palpable
hunger” for land among the dispossessed. But, if this is the case, why do the majority
of land restitution beneficiaries opt for financial compensation instead of land?
It appears that the matter is not as clear-cut as the preamble makes out.

The preamble also suggests that EWC will serve to accelerate the land reform process,
but it has already been pointed out by [myself](https://www.dailymaverick.co.za/article/2018-06-11-on-the-necessity-of-and-mechanisms-for-expropriating-land-without-compensation/)
among others (including McCrystal and the [High Level Panel Report on the Assessment of Key Legislation and the Acceleration of Fundamental Change](https://www.parliament.gov.za/storage/app/media/Pages/2017/october/High_Level_Panel/HLP_Report/HLP_report.pdf)),
that the Constitution is not the main impediment to land reform. It is ineptitude,
mismanagement, maladministration, greed and corruption that are at the heart of 
the slow pace and, in some cases, failure of land reform. This ties in with another
of McCrystal’s objections: Amending the Constitution to allow for EWC may create
another avenue for exploitation by immoral politicians.

Thus, while the intent of the bill might be good – who can argue that there is still
a need to address spatial inequality and the lingering injustices of the past? –
the immorality that permeates South African society and is exemplified in many of
our leaders could see these good intentions ending up as paving on the road to their
own infamy.

In conclusion, I am in two minds about this bill. Firstly, I see it as a good thing
because it imposes limitations on the existing expropriation clause in the Constitution.
Currently, any of your property (not just land), may be expropriated in the public
interest (not limited to land reform), and you may be compensated in a manner that
is just and equitable. This doesn’t mean that compensation must be at market value,
or even that you have to like the compensation amount. It means that a court will
have to decide what “just and equitable” means for your particular case and there
is nothing in the Constitution at the moment to stop the court from saying that 
you get nothing. The bill makes it explicit that EWC may only apply to land and 
buildings expropriated for the purposes of land reform. Your car and other property
would hence be safe.

My main objection to the bill is the assumptions in the preamble that people want
land and that this amendment will speed up the land reform process. Both of those
assumptions are untested and possibly invalid.

My final concern, which I haven’t raised yet, relates to the addition of subsection
3A: the “specific circumstances” under which a court may determine that nil compensation
is valid. This is really where the rubber hits the road and this is where public
comment will be crucially important. It is these “specific circumstances”, that 
will either instil confidence in our government and our property rights, or lead
to the kind of economic meltdown that the naysayers are predicting. Yet we are being
asked to comment on the bill without seeing any literature pertaining to these “
specific circumstances”. Are we to approve the amendment bill in good faith that
government will follow it up with “specific circumstances”, that are just and equitable?
Experience shows that “good faith” and “government” should not appear in the same
sentence. Why are we not being asked to comment on the bill and the “specific circumstances”,
simultaneously?

Hence, I’m not convinced that I can support the bill in its current form. There 
are just too many key questions that remain unanswered. But I will support it eventually,
once my concerns about the rationale and the “specific circumstances”, have been
laid to rest. And I think you should too. **DM**