PROGRAMME FOR LAND AND AGRARIAN STUDIES, UNIVERSITY OF THE WESTERN CAPE
Dr Edward Lahiff
Dr Lungisile Ntsebeza
Ms Ruth Hall
Prof. Ben Cousins
(Programme for Land and Agrarian Studies, University of the Western Cape)
1. No significant constitutional issues are raised by this proposed amendment. Expropriation is a well-established principle in law, both in South Africa and in constitutional democracies throughout the world, and is clearly a necessary tool in any large-scale programme of land reform.
2. Land reform, including restitution, is a constitutional imperative. No party, whether a restitution claimant or a land owner, has an absolute right to land under the constitution, and neither can hold a veto over the restitution process.
3. Restitution is a rights-based programme, not a 'willing-seller, willing-buyer' or other form of discretionary programme. The rights of property owners are clearly protected under the Constitution, including in cases where expropriation is necessary. There is an obligation on the state to use negotiations where possible in dealing with property owners, but also to intervene decisively where negotiations do not bear fruit.
4. The current options available under the Restitution of Land Rights Act in situations where negotiations are not fruitful are limited, and biased against the interests of claimants. This is contrary to the spirit of the Constitution which is based on balancing the rights of various parties, but not to the point of entrenching the status quo. However, the Constitution also promotes the principle of transformation, which must include redressing past inequalities in areas such as land rights.
6. Current landowners have demonstrated the ability to frustrate the restitution process to the point where a minute proportion of claims are being settled through restoration of land. While the Constitution clearly does not require that land be restored in all cases, experience to date suggests that the powers available to the state are inadequate to ensure the restoration of land in the great majority of cases where this is technically feasible and is desired by claimants.
7. Numerous land claims, particularly rural claim on agricultural land, are stalled due to deadlock in negotiations with current owners. A solution is urgently required to break such deadlocks in a manner that is in line with the Constitution, that respects the rights of all parties and that advances the cause of transformation and land reform. Legal argument will, no doubt, continue around the precise legal mechanism for bringing this about, but there can be little doubt about the urgent need for such measures.
8.. Opponents of the amendment have not raised any objection to the principle of expropriation, but only to the use of expropriation for land reform purposes, or when applied to the land of a particular group of people. This is not a legal or a constitutional issue, but rather a particular interest group defending its own position.
9. Where the proposed amendment does break new legal ground is in giving effect to the concept of 'public interest' (as opposed to the narrower 'public purpose') set out in Section 25 of the Constitution. Expropriation for purposes of land reform can be see as different to other forms of expropriation in that the principal beneficiaries will be private individuals rather than the general public or the state, although the indirect benefits to the wider society are also important. To date, expropriation has not been used for this purpose as part of South Africa's land reform programme, but explicit provision is made for such measures in the Constitution. In other words, the Constitution does envisage active intervention by the state in private property rights, and this Amendment is an important measure in giving effect to this provision. Restitution without the possibility of expropriation will clearly fall short of the obligations contained in Section 25.
11. It is essential that, in strengthening the powers of the state in the area of expropriation, all processes for the settlement of land claims as set out in the Restitution Act should be fully complied with. In particular, expropriation should be used solely for acquisition of land, after negotiations have proved unfruitful, and not as a means of short-circuiting the established processes of validation and verification of claims by the Commission. Any threat, or use, of expropriation prior to the completion of all processes as set out in the Restitution of Land Rights Act could be seen as undue political interference in the restitution process.
12. The proposed amendment does not address the critical question of resources and capacity with the Commission on Restitution of Land Rights. The current lack of capacity at various levels has the potential to seriously hamper the work of restitution and must be addressed decisively.
13. The deadline imposed by government for the completion of the restitution process by 2005 is unrealistic and unhelpful, and should be revisited.