• Pam Saxby


This article was published on 9 November 2020 in Legalbrief Today, under Policy Watch

By amending section 25 of the Constitution to explicitly provide for expropriation without compensation, the Constitution 18th Amendment Bill will be Parliament’s ‘greatest victory’ – and ‘a lasting solution’ to ‘the triple challenges of poverty, unemployment and inequality’. ‘The people have spoken’. This is according to a media statement issued by the ad hoc parliamentary committee responsible for preparing the proposed new piece of legislation. Headed, ‘Countrywide public hearings on expropriation of land without compensation wrapped up in Polokwane’, it draws attention to key aspects of input made by participants in Saturday’s public hearing on a draft Bill released last December for comment. As has generally been the case, the ‘majority’ view was that ‘the expropriation of land without compensation is long overdue’ and will ‘improve (prospects for) social and economic transformation’. ‘Many’ nevertheless want ‘all natural resources’ owned by the state. ‘Some’ believe the process of land expropriation without compensation should begin in urban areas, by bringing housing opportunities closer to places with significant employment prospects.

Held in Polokwane, Saturday’s hearing was the last in a nationwide programme begun in February, suspended during the strictest levels of Covid-19 lockdown and resumed last month. It was originally scheduled to take place on 25 October but was cancelled following a scuffle between ANC and EFF supporters. At the time, writing for the Daily Maverick, Lucas Ledwaba referred to the cancelled event as a ‘land expropriation hearing’ – inadvertently drawing attention to a change in the wording of committee media statements announcing each step in the process. During February and March, the hearings were advertised on Parliament’s website in statements headed with references to the committee’s mandate: to ‘amend section 25 of the Constitution’. During October, the focus of the headings changed to ‘hearings on land expropriation without compensation’. Yet, as committee press releases on the outcome of the hearings have regularly confirmed, their purpose was to provide opportunities for participants to express their views on the wording of the draft Constitution 18th Amendment Bill. Few attendees appear to have done so. Instead, throughout the nationwide programme hearings have been used to voice longstanding grievances about past injustices.

Although it is not clear why the headings changed, their references during October to hearings on land expropriation tend to be misleading and may even have been misconstrued. A parliamentary summary of the process makes its purpose abundantly clear in the context of public consultations during 2018 on the merits or otherwise of amending section 25. This year’s hearings appear to have repeated the exercise, albeit unintentionally. It remains to be seen how ordinary South Africans will respond when yet another public participation process on this contentious issue is eventually announced – this time focusing on the revised Expropriation Bill now before Parliament. How many participants in hearings on the draft Constitution 18th Amendment Bill are aware of the Expropriation Bill’s significance as national legislation prescribing the circumstances in which land expropriation for nil compensation could be justifiable? How many are prepared to wait what could be years before the two Bills are operationalised? As Deputy President David Mabuza reportedly told the NCOP recently, ‘the expropriation of property with nil compensation is not a silver bullet. It is only but one acquisition mechanism that in appropriate cases will enable land reform and redress’ (SAnews).

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