This is the question on everyone’s lips as the ANC government appears to be moving ahead with its proposal to expropriate land without compensation (EWC). During TAU SA’s recent annual Congress, Adv. Roelof du Plessis SC set out the legal ramifications of the government’s various statements about EWC.
The fact is that the government can’t just take land as is proclaimed by not only wild-eyed land activists but by the president himself. His party the ANC has not yet concisely defined the nuts and bolts of its policy - the party talks in broad strokes, and the caveat that food production must not be jeopardised further complicates the matter. It is common cause and empirically established that the ANC’s land redistribution policy has failed abysmally. There are more than 4 000 formerly productive farms now in the possession of the state, most of which are lying fallow.
In December 2017 the then president of the ANC, Cyril Ramaphosa, declared unambiguously “We will take the land”. After becoming president of SA, he has backed down somewhat. During the TAU Congress Dr. Pieter Mulder, a former government cabinet minister for agriculture, set out the number of “plans” proffered to the South African public at various intervals regarding the ANC’s so-called land policy. They shunted from the willing buyer/willing seller plan, to the creation of a Valuer General to determine prices and execute claims, to the “20% formula” contained in the National Development Plan where farmers are supposed to point out 20% of land in a certain area and then monitor the black farmers settled on that land.
Then we were presented with the farm ceilings plan where 12 000 ha farm was arbitrarily decided upon by Minister Gwede Mantashe as being “a reasonable size”! One only needs to compare a farm in the Karoo with a farm in the Lowveld to realise how impractical that suggestion was.
Is it only white farmers’ land in the ANC’s sights? Seemingly yes. When the government’s EWC policy was announced, the Zulu king threw his toys out of the cot, precipitating a hasty visit by the president to assuage the monarch that his tribal land would remain untouched. Then the ANC’s focus turned to “unproductive” land, followed by various speeches about the possibilities of urban land being expropriated for the dispossessed!
Lists of farms to be expropriated suddenly appeared, and the government backtracked, stating that they had not drawn up a list! As the Economic Freedom Front’s (EFF) political breath warmed the president’s neck, he rashly announced late one night that the ANC would change the constitution so that land would be expropriated without compensation.
HAPLESS
So where does this leave the hapless farming community and the broad South African public? Adv. Du Plessis refers to the foundation of the South African constitution.
Section 7 (1) of the SA Constitution provides that the Bill of rights is a cornerstone of democracy in South Africa. The principles of the Rule of Law all form part of the foundation of the Constitution. The rule of law requires State institutions to act in accordance with the law, so the law therefore authorises everything the State does. The Rule of Law also includes the protection of basic individual and human rights.
Various pieces of legislation have already been enacted for the purposes of restitution and redistribution of property, and various disputes are currently being dealt with through the mechanism of those Acts. This cannot be simply undone by a unilateral determination of the expropriation of all land in South Africa.
Any attempt therefore to create a blanket dispensation, as was done in respect of minerals, to declare the State as custodian of all land, will have a detrimental and prejudicial effect on the rights of parties that have already been created and established in terms of the legislation mentioned above.
INTERNATIONAL LAW
Adv. Du Plessis points out that the “right to property” is protected in inter alia, the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Convention on Human Rights, Article 21 of the American Convention on Human Rights, Section 24 of the African Charter on Human and Peoples’ Rights, article 77 of the Charter of the Fundamental Rights of the European Union, and article 25 of the Arab Charter on Human Rights, as adopted by the League of Arab states.
It is therefore a right that is generally protected in many international conventions and documents.
The American AGOA legislation between South Africa and the United States contains many benefits for South African exporters. Between 2000 and 2014 the value of SA exports to the USA quadrupled and South Africa can thank AGOA for almost 40% of these exports. The AGOA legislation contains important caveats which a country must abide by in order to reap the benefits of AGOA. One of these – Article 104 – is the protection of private property.
Such protection is also found, inter alia¸ in the constitutions of Japan and Germany as well as in Swiss law, French law, Spanish law and Irish law. Declared Adv. Du Plessis: “Compensation is required for expropriation in most constitutional property clauses, including the different international human rights conventions.... A total lack of compensation is only justifiable in exceptional circumstances.”
BILATERAL INVESTMENT TREATIES
In the second half of the 20th century, many bilateral investment treaties have been entered into between different countries, which mostly contain express guarantees against uncompensated expropriations.
The cancellation by South Africa of various bilateral investment treaties between itself and various countries means that disputes (including those around land and investment) will have to be determined in terms of South African law. This is cold comfort to foreign investors. According to Adv. Du Plessis, “most international investment agreements, including bilateral investment treaties, stipulate that the value to be determined in the event of expropriation will only be market value, based on the principle of willing buyer, willing seller.... Any legislation enacted in terms of Section 25 or any amendment to Section 25, in an attempt to expropriate land on a blanket basis from landowners in South Africa across the board, will be contrary not only to Section 25 of the constitution, but also contrary to international law. Insofar as it is contrary to international law, it will be regarded as being contrary to the rule of law, which underpins the SA constitution.”
BLANKET EXPROPRIATION
“Difficulties with the blanket expropriation of land will inter alia open the door to similar expropriation of other types of property – the consequences are endless. It may also have the effect of not providing sufficient security for banking institutions to make further financing available for the purchase of land, including urban land. It may lead to the wholesale destruction of the property market in South Africa, and therefore the destruction of the whole of the economy in South Africa” declared Adv. Du Plessis.
As far as the so-called theft of property by whites in South Africa is concerned, this oft-repeated falsity is supposed to somehow justify the “return” of this property to blacks without compensation. Says Adv. Du Plessis: “To simply state that all property belonged to black people before 1652 and that all whites who are the owners of property have stolen such property, is a baseless allegation devoid of any evidence or facts”.
South African history shows that blacks either occupied land or utilised it. They had no title deeds, an unknown concept in southern Africa at the time. Their position regarding land could be described as possession via traditional rights, and this is how the courts covered this situation. This situation had to be regulated otherwise people would have been moving across the country willy nilly. Hence the creation of the Land Act No. 27 of 1913. It established that blacks could not purchase, rent or otherwise acquire land outside scheduled black areas, and whites could not purchase, lease or otherwise acquire any land in black areas.
What other solution could there have been at the time? Land was allocated to blacks where they were concentrated and where they were already living in great numbers at the time. Many of the provisions of the 1913 Act were in fact enacted for purposes of protection of black tribes. This has been ignored in the popular discourse on the effect of the Act.
Says Adv. Du Plessis: “It is important to note that there were no large scale forced removals as a result of the 1913 Act because the Act stipulated what was the case on the ground at the time.”
He concludes: “A task team has apparently identified land that can be expropriated without compensation, such as abandoned buildings, unutilised land, commercial property held unproductively and purely for speculative purposes, all under-utilised property owned by the State, and finally land farmed by labour tenants with an absentee title holder .... This appears to be a more plausible, economically viable and reasonable approach to this issue”.
It is thus questionable why the ANC continues to focus on taking white farmland. It makes no sense in terms of food security. There are no groups in South Africa who can surpass the achievements of 35 000 commercial farmers in feeding 57 million people. So what are the ANC government’s real goals of expropriation without compensation when focused solely on white farmland?
SOUTH AFRICA BULLETIN
from the headquarters of
TAU SA in Pretoria
Web: www.tlu.co.za
Tel.: + 27 12 804 8031 Fax: + 27 12 804 2014
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.
