Short update on section 25 amendment process and land reform legislation and policy in the making

I was recently asked to give a short 20-minute update on issues surrounding land reform. The video that I made is available at the bottom for those who find it easier to watch than to read.

2020 has been a tumultuous year, and it is at times almost impossible to imagine world pre-COVID 19, where we were having debates about the amendment of the Constitution, and the future of land reform in South Africa. With Parliament getting used to conducting sessions online, and with all of us used to Zooming in and out and joining teams from the safety of our homes, it seems as if things are slowly getting back on track again.

COVID, of course, had a profound impact. But we will get to this later. For now, a short recap on what is happening with the Constitutional amendment, and what is new in land reform?

Section 25 process and the Expropriation Bill

The motion of February 2018, led to the Joint Constitutional Review Committee, with Vincent Smith as chair. This Committee was tasked with asking South Africans the simple question if the Constitution should be amended – yes or no? This was the first round of asking the public for input, and you will remember the emotive scenes voicing frustration and dispair at many of the hearings.

The Committee tabled its report in November 2018 and found that yes, the Constitution must be amended to make explicit what is implicit in section 25.

If I were a cheeky person, I would add here that the problem is that there is no real agreement on what is implicit, which is part of the problem.

But I will instead continue to explain that at this time, an Expropriation Bill was published by the Department of Public Works for comment. Then the National Assembly established (in terms of Rule 253), an Ad Hoc Committee to Amend Section 25 of the Constitution with Thoko Didiza as chair. This Committee had to initiate and introduce legislation amending section 25, have regard to the recommendations from the Constitutional Review Committee, and report back by 31 March 2019. Due to the election, the committee could not finalise its work.

Thus, after the elections in July 2019, another committee was established, namely, the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitutiontasked with coming up with specific wording for section 25.

In December 2019 the Committee came up with the wording and invited public input. Written submissions had to be in by the end of January, and thereafter the Committee went on another round of public participation processes in communities, this time with specific wording to be debated. It is this process that was interrupted by COVID-19.

The Committee in the lapsed at the end of May but was revived on the same terms as the previous Committee, to finish the work. That was the last meeting in 2020.

A meeting was scheduled for round about now, but since it is in a recess in Parliament, the meeting was cancelled. The due date for a final constitutional amendment is 31 December 2020. I am not sure if we will reach that date, and if we do, whether it would be an amendment bill that complies with the requirements of public participation. And what does public participation look like in the time of COVID?

On the legislative front, we have the Expropriation Bill that, at the beginning of the year, was planned to be finalised by June this year. The Bill is now with the cabinet to approve, and I understand that the date for tabling in the National Assembly is now the end of October. This is a significant Bill. There might be a few challenges to the Constitutionality of the Bill about the definition of expropriation, the “nil compensation” clause, the role of the courts and the protection of people living on communal land. Still, I don’t think any of these issues are so glaringly unconstitutional that the Bill will be stopped in its tracks or be declared unconstitutional in its entirety. Instead, like most legislation, it will take time and specific cases to finetune it.

It seems as if there was always some uncertainty about what should come first – the Constitutional amendment or the Bill. But if one views the Constitution as the framework for expropriation, and if we are only making explicit what is implicit (thereby not amending but clarifying), then the sequence does not matter. What is essential is that the Expropriation Bill is passed to ensure clarity, and to set clear guidelines that the State must follow upon expropriation. This will not only restrict state power, but it also provides accountability.

Three possible scenarios

It is difficult to predict what will happen, and pandemics have a sly way of reminding us that any prediction remains just that – a prediction. So I have listened to my economist friends and started thinking of the various possible scenarios.

In all three scenarios, I presume that the Expropriation Bill was enacted.

Scenario one is the possibility of a slight change in the current wording of the amendment that is passed by Parliament. This will not really change the law.

The second scenario is that after all the deliberations and the proposals, the amendment gets tabled. Still, it is not passed because it does not have the required 66% votes – something that might happen if it is not radical enough for the EFF.

The third scenario is that after taking into consideration the inputs from the public, the wording is redrafted. If it is changed significantly, it will have to go through another public participation process before it can be tabled again.

Either way, if land reform continues at the slow pace or the failed pace of the past 26 years, we will have this conversation again in the future, among similar lines.

So, what is happening elsewhere in land reform?

Other legislative processes to take note of

We also saw an amendment to the Upgrading of Land Tenure Act – ULTRA – done after the Constitutional Court ordered the legislature to do so in the Rahube case. The small amendment saw a fierce deliberation in Parliament because it leaves more questions about land in so-called communal areas with its narrowly focussed amendment. But what I have picked up from dropping in and out of the meetings is this: civil society can speak up and participate on Zoom, and if the level of engagement in these deliberations is a precursor for things to come, lively and challenging debates are awaiting. The government need to develop clear policy and guidelines as to what it envisions with land reform.

Policy movement

We also had deliberative and political processes going on in the form of the President’s Panel on Land Reform and AgricultureP. It provided a menu of options to consider as far as land is concerned. It is unclear where we are in the process of policy formation or recalibration based on these recommendations, but there are some indications.

There is a Proactive Land Acquisition Strategy (PLAS) policy amendment that allows for blended finance, aiming to ensure that farms acquired in this process are used productively. This is not only for existing farmers but also for emerging farmers. The proposal is 50% state grants, and 50% from commercial banks. This focusses on ensuring support for black commercial farmers and sustaining the current farmers.

The Restitution Commission is also currently reconsidering its settlement models, aiming to see if they cannot improve on it, especially in the form of partnerships. It seems like the underlying idea is that the transfer of land must make sense. This will need careful deliberation to ensure that partnerships do not perpetuate the unequal relationships between the farmers and the beneficiaries.

Just before COVID the beneficiary selection policy was published for comment, so the comments received there are presumably considered, and we should soon have a policy. This is important as it gives an indication of who should benefit from land reform.

Then there is also the land donations policy that aims to facilitate the donation of land. And the strategic release of state land (for leasehold). Plus, there are rumours that the Property Valuation Act’s notorious regulations will be reviewed. We will also see a change in the Land Claims Court that will probably become a Land’s court, with permanent judges that specialise in land issues.

Private initiatives

Meanwhile, an agricultural development agency was created that aims to provide support for black farmers through a public-private partnership initiative.

Conclusion

COVID has changed our lives in many ways, and it also changed our society. Our economy is in dire straits, and I predict that in the next few months, reports will show an increase in inequality and that this will still mostly be on race lines. There are studies that show the dangers of inequality, and that inequality based on race or ethnicity makes for a powder-keg of doomsday possibilities. So we have to be careful.

The big debates in land reform are surprisingly not whether compensation must be paid for expropriation or not – that is one part of it. There is a contestation whether the focus should be on transferring land to many small farmers or if the focus should be on enabling black commercial farmers. Then there is a big debate about the extent of state involvement in doing land reform. Should the State be involved, or should it be left to the private sector? And how do we view private property? Or how should we strengthen the rights in land of people living in communal areas – through titles, or some other way?

My guess is that with COVID, the focus will be more on strategies that support economic growth, and on attracting investment. The State simply does not have the money or the capacity to do land reform on its own, and it cannot afford to waste money. And for that, policies cannot be too radical. Forced acquisition will be left as the last strategy, meaning that expropriation will remain one of the many tools that can be used. It also means that the private sector has a more onerous duty to ensure that land reform works.

But the moral issues will remain. The other conversations that we have when we talk about the land will remain and will need to be addressed sensibly in the correct forums, with skilled mediators, so that we can find consensus on how to address the land injustices of the past while building on a better future for all.