Speech delivered by Minister Ronald Lamola in Parliament on the debate of the Section 25 Amendment
7 December 2021
Fellow South Africans;
Today we continue to set in motion a process to consolidate and complete a journey that was initiated by Solomon Thekiso Plaatjie, the first Secretary General of the South African Native National Congress.
The first major campaign of the South African Native National Congress, the predecessor of the African National Congress, was against the Glen Grey Act of 1894 which was consolidated into the Land Act of 1913, a measure that drastically disposessed and curtailed the right of Africans to own or occupy land throughout the Union.
Today we stand to complete that which Nkosi Bambatha kaMancinza died for.
Today we stand to complete the fight against the original sin of land disspossesion which left 87% of the population leaving under 13 % of the land.
The forces on the left and the right who stand oppose to progressive policies will reveal themselves as their entanglement will be exposed today. When forces in the left and the right converge against the people it is a counter revolution.
In this entanglement the EFF, DA and the Freedom Front plus pretend not to be in the same bed. They behave like couples who’ve celebrated Lobola yet they tell the whole world they’re not married.
How ironic that they vote together in local government, they’ve pronounced that they’ll vote together today to oppose the Bill, Yet they tell us they’re not coalition partners.
From the African claims, the Freedom Charter, Ready To Govern and RDP, the ANC always advocated for equitable distribution of land to the people of this country.
In 1992, through ready to govern we said “A new system of just and secure property rights must be created, one which is regarded as legitimate by the whole population.”
According to Reconstruction and Developmment Programme the Land reform program must produce the following:
Redistribution of residential and productive land to those who need it but cannot afford it, and restitution for those who lost land because of apartheid laws.
Our land reform policy is anchored on three pillars:
the restitution of land rights that has been dispossessed in terms of colonial laws;
Improvement of security of tenure for those whose land rights were weakened by apartheid laws; and Land redistribution.
Presently, data from government and academia presents a wide gap, with the government suggesting that the land transferred from white South Africans to fellow black between 1994 and 2020 is roughly 11%, while some economists suggests that we have made progress to around 20%. Government has recently released an additional 700 000 hectors of land for beneficiaries of land reform.
While the land reform program has been slow, there has been some progress.
Some of the challenges experienced during the implementation of the land reform programme since 1994 are the following:
- Exorbitant land prices and protracted negotiations to settle claims;
- Complexities of settling rural land claims in the absence of documented evidence;
- Fraudulent claims;
- Non-disclosure by claimants; and
- Competing claims on the same piece of property.
It is against this background that Expropriation without compensation must be one of the policy instruments which must be availed to the state to accelerate land reform.
The ANC resolved at its 54th National Conference to expropriate land without compensation in order to give effect to land reform and redistribution.
The Conference further resolved to do this in a manner which does not undermine future investment in the economy or damage agricultural production and food security. This will be done in a manner which does not harm other sectors of the economy.
The expropriating authority performing an expropriation exercises public power and by that virtue, is bound by the rules of administrative law. Issues of procedural fairness, reasonableness, legality and proportionality are applicable.
The process of arriving at the amount of compensation must be rationally connected to the purpose. The courts have timeously remarked that the means must justify the end.
The essence of the ANC 54th Conference resolution is to expropriate land without paying for it under certain conditions.
International property law, which binds South Africa, recognises Nil Compensation. It is against this background that we support the wording on the Bill of nil compensation as in practice it will mean the same as expropriation without compensation.
The ANC advocates for multiple land tenure (ownership) system where the state will own land for its own use or to lease. Natural and juristic persons will equally be afforded an opportunity to have free hold(title deeds); communal land will also be recognised to ensure security of tenure.
South Africa is a mixed economy hence our land tenure / ownership system should mirror our social and economic construct, it should also facilitate economic or social participation by any land holder.
One form of land tenure will not suite our unique social and economic construct. In fact, honorable members, most countries across the globe have multiple forms of tenure land ownership.
The reality is that even communist China, has recognised the need for mixed land ownership model. In 2004, the Chinese Amended their constitution to ensure that the rights of private citizens to land are protected.
In order to create an egalitarian society, to speed up land reform, restore the dignity of our people and redress the injustices of the past, the ANC supports the report of the Adhoc committee and the proposed constitutional eighteenth amendment Bill. The amendment Bill is line with long held ANC historic policy positions on Land Reform.
We support the Bill as it will add into the arsenal or in the tool box for our land reform legislation.
The eighteenth amendment Bill in section 25 of the Constitution will make explicit that which is implicit in the Constitution.
All jurisdictions across the globe have an expropriation instrument , in the United States, they call it the eminent domain or the taking law and many other jurisdictions call it expropriation.
In all these jurisdictions, the issue of compensation, just, nil or without, has been debated by legislators, jurists, economists and society at large.
Therefore, as a country, we are not barbarians in debating this matter. The DA and the Freedom Front plus must know that expropriation is in all jurisdictions of the globe. In all jurisdictions land reform policies evolve.
In some of the countries where the revolution came through war or a violent take over like China and Mozambique, they expropriated land without compensation during the transition period, but today in both countries any expropriation is accompanied by compensation.
Zimbabwe was a negotiated settlement on the land question, they later expropriated without compensation, today they are in the process of compensating the farmers from whom they expropriated land without compensation.
As South Africa in 1994 we chose a path of a negotiated settlement, where land reform will go through a due process.
Therefore, our policies on land reform must be transparent and be based on the just and equitable principles.
Due to land hunger which is more pronounced in urban areas, due to rapid urbanisation, the land must also be distributed to those who need it.
Honourable Members, we, want to warn against an opportunistic approach to Land reform.
The entanglement partners want us to believe that custodianship is a silver bullet to land reform.
In the context of Expropriation Without Compensation, the AgriSA case is important.
The case dealt with the question of whether certain deprivations caused by a regime change in rights in certain resources, amounted to an expropriation. The Constitutional Court found that, on the specific facts in front of it, such a deprivation of property does not amount to a compensable expropriation, since the state does not acquire any property.
From the AgriSA judgment, we now know it is possible to vest custodianship over minerals without passing ownership because there are no title deeds to begin with. But that is not the same with land, which is regulated by title deeds or free hold. With the land, you will need to first deprive the land owner to vest custodianship to the state.
The ANC led government has a practical understanding of state land ownership or custodianship as government has administered land on behalf of the state in various spheres of government, state owned entities and communal land which is under state custodianship. Therefore state custodianship is nothing new to us nor a res nova as claimed by the EFF.
The government has also transferred land ownership from the state to beneficiaries of land reform.
We have also leased land to beneficiaries of our land aquisation policy and we know the challenges our people faced in this regard.
Majority of beneficiaries of the redistribution programme prefer free hold as it facilitates economic participation and does not render them perpetual minors at the behest of the state (Like the Tafelkop Community who fought for 25 years to receive their titles).
The Freedom Charter calls for land to be shared amongst those who work it, not the state. Land reform is meant to restore the dignity and the economic power of those disposed by the Apartheid and colonial governments and to change ownership patterns.
State custodianship would be a hollow victory as it still denies the disposed the full economic benefits and dignity of owning their land. It also does not change the ownership patterns.
Disconcertingly, we will have to explain to future generations why instead of unravelling Glen Grey's legacy, we chose to endorse and implement it.
We will be called upon to answer why our actions mirror the words of colonialists like John Scott who styled himself as Lieutenant-Governor of Natal who said :
" An uncivilized person is not easily brought to understand the value of written titles; rightly to comprehend such a question requires an experience only obtainable by a considerable amount of social progress on his own part, and until he acquired such an improved status, no title could be given to him which did not contain provisions necessary to guard him against his own ignorance, and the superior knowledge of those around him”.
The road that the Economic Freedom Fighters want us to walk on is not only dangerous it is backward, it is the anti- thesis of economic freedom and democracy.
Our land problem is not characterised by a lack of state ownership, it is compounded by the lack of security of tenure for citizens. Our people during the public hearings, demanded to the own the land. We cannot as this house respond by giving them less secure forms of tenure.
In reality, even those who are beneficiaries and the black people who have succeeded in buying land on their own means in the open market through the fruits of their labour would be deprived of their land under EFF’s model.
With a stroke of pen, people in the townships like Soweto, Atteridgeville, KwaMashu, Likazi, Seshego, to name a few, will wake up being tenants of the State. They will have to lease their land like they did under apartheid thereby
being rendered perpetual minors of the State.
Those who worked hard over years to get free hold who were under the Bantu Administration Act, will surely feel betrayed by government for taking them back into apartheid and for rendering them perpetual minors and that their assets must be administered for them by the State.
The community of black people who hold title deeds, are not an insignificant minority.
We will not be fooled by the EFF’s revolutionary sounding rhetoric that is counter revolutionary. The cult of the EFF can only fool its members who believe everything that comes from their supreme leader as gospel truth, they’ll flood
Twitter to concur even if he can tell them that the township of Soweto is in Mpumalanga not Gauteng.
Honourable members, all progressive forces must support the eighteenth constitutional amendment Bill.
The state must simply ensure that access to land is equitable.
Some of us have not being shouting from stages, we have been working to create the policy framework for Expropriation with nil compensation .
There is no silver bullet or one legislative instrument that can solve our land reform challenges, we need a myriad of policies and legislation to resolve this challenge.
For us to create or facilitate the growth of the working class to a rural middle class, or to grow the black middle class, the forms of tenure must link the both of them mainstream of the economy.
This house has in its midst the expropriation bill. The Expropriation Bill (2019) sets the circumstances under which land may be expropriated with nil compensation, for instance where land is occupied by labour tenants, where land is unused but only kept to generate income from its appreciation; where land is abandoned and pose a health and physical risk to the people.
You also have in your midst the Land Court Bill which will help us to resolve land disputes and develop land jurisprudence.
The department of rural development will also process the redistribution Bill. The high level panel report has shown us that for us to accelerate our land reform programme, we need to promulgate a redistribution bill that will help us resolve land hunger.
The department is also processing the communal rights land act that will guarantee security of turner for people under communal land.
Financial institutions should be able to grant credit when security of tenure is guaranteed on communal land. In this way, we can unlock the economic potential of land held under communal systems.
All the above bills will be adopted by this house with or without the support of the entanglement partners.
We call upon all South African to join hands in the land reform program for uquitable redistribution of the land. It is in the interest of everyone black and white that land reforms succeed. The skewed patterns of land ownership are not sustainable.
To South Africans, the ANC support the eighteenth amendment Bill which is anchored on giving the people the land.
As Mama Afrika, Mirriam Makeba sang, Kudala sinyamezele Lifikil'ixesha Lenkululeko yethu Manyanani ngoku alisekho ixesha lokulila Mayibuye ngok'iAfrika Silwel'i-zwe lakowethu Elatha-thwa ngabamhlophe Sesifun-inkululeko Vukani mawethu Lifikil'ixesha