a rotten land law
2 April 2008
Public Works Minister Thoko Didiza’s proposed new expropriation law would be a dangerous piece of legislation if enacted, not only to the equitable administration of land reform, but also to the sovereignty of property ownership that is every citizen’s inalienable right. The government’s stated intention with the amendment bill is to align expropriation legislation with the constitution. The idea is to allow for expropriation in the public interest rather than for a public purpose. That in itself is significant, in that public purpose can be shown, whereas the public interest is a matter of opinion, in this case the minister’s opinion.
Section 25 of the constitution does allow for this statutory development, in which it determines that the public interest must include the nation’s commitment to land reform. Land reform presents special circumstances of redress, justice and economic opportunity by extending land ownership to all South Africans.
But the proposed law involves all property and not just land that may be subject to land reform. The constitutional provision for expropriation in the public interest could thus be applied to all property and not just in pursuit of land reform as intended. Assuming that the government has no sinister intention with the amendment, and that land reform is its sole purpose, it is still unclear why the legislation is necessary. Several acts already permit the expropriation of land for any land reform purpose and fully meet the constitutional provision for the public interest in land reform.
The government’s land reform programme is seriously behind schedule and, in almost all cases of rural land reform, has failed utterly in its purpose to alleviate poverty and stimulate rural economic development. This failure, for which the government blames the “unavailability of land”, “exorbitantly” high prices and the intractability of land owners, is largely the result of poor administration and a lack of capacity in the land affairs department.
As for the availability of land, a perusal of the agricultural media shows that there are thousands of farms for sale. Organised agriculture has shown that land claims, justifiable and spurious, have farmers falling over each other to sell land to the state for land reform, along with undertakings to mentor emerging farmers, or support new owners as leaseholders .
As for price, the state has paid on average about a third of market prices for land acquired for land reform. Why the state needs yet more statutory support in a law that would explicitly bar the minister from giving preference to the market value in arriving at a settlement is incomprehensible.
By preferring a drastic measure, which expropriation has always been, to a negotiated settlement, which is the South African way, the government betrays a desperation to obfuscate the inadequacies of its administration. Still, a bad law which serves a good purpose may be acceptable.
The trouble is, though, the proposed law enables the state to expropriate any property from any South African at the minister’s whim, for which compensation is, again, determined by the minister’s whim. And the purpose of that can only be unfettered state power, which is a terrifying prospect against which all South Africans should enjoy constitutional protection.