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Mbeki Warns Land Expropriation Without Compensation Could Spark Crisis, Scare Off Investors

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FORMER President Thabo Mbeki has warned the ANC about its proposed amendments to Section 25 of the Constitution, saying it would lead to a serious disincentive which South Africa cannot afford.

In a comprehensive discussion document, Mbeki has advised the governing party against pursuing such route, which is similar to the position of the Economic Freedom Fighters, “and therefore does precisely what [Julius] Malema argued for –that the white section of our population should be excluded from the definition ‘our people’, reserving it for ‘the blacks in general and the Africans in particular’.

“It was with regard to this context that statements made by the leadership of the ANC after the December 2017 54thNational Conference, that land would be expropriated from one national group, without compensation, and handed to another national group, came across as representing a radical departure from policies faithfully sustained by the ANC during 105 years of its existence,” Mbeki has argued.

While the ad hoc committee amending Section 25 finds itself in a deadlock on the form of the amendment, the ANC on Friday laid its cards on the table and presented its proposed amendment.

The proposal to amend South Africa’s Constitution to allow for land expropriation without compensation has stalled as the ruling ANC  has failed to come to an agreement with the opposition EFF on the exact changes that need to be made.

The ANC requires support from the EFF to change the Constitution. However, the EFF is pushing for more radical changes – including full state custodianship, which would effectively amount to nationalisation.

The ad hoc committee on Legislation Amending Section 25 of the Constitution on Friday continued with deliberations on the Draft Constitution Eighteenth Amendment Bill.

The bill seeks to enable amendments to the Constitution to make it possible for the state to expropriate land without compensation.

So far, there has not been clear agreement on the Bill among parties represented in the committee, especially where it refers to nil compensation, state custodianship of the land, and also on the actual need to amend the Constitution itself.

The parties have agreed to submit revised versions of their submissions and to continue discussions in the next meeting.

Committee Chairperson Dr Mathole Motshekga warned that failure by Parliament and the committee to find solutions to the land question in South Africa could lead to the Zimbabwe situation.

“If law-makers are not able to resolve the land question, the people will take the law into their own hands, and that will be a sad day,” said Motshekga.

Economic Freedom Fighters MP Floyd Shivambu said his party disagreed with anything that talks about compensation.

“We fundamentally disagree with the ANC’s revised position so anything that will say subject to compensation we are never going to agree to that,” said Shivambu.

Meanwhile, the Democratic Alliance said on Monday that plans by the ANC and EFF to reach a bilateral agreement, outside the purview of Parliament, on expropriating land without compensation, reveals the extent to which they will go to violate our Constitution and go beyond the original mandate given to the Section 25 committee by Parliament.

The party’s Dr Annelie Lotriet, Chairperson of the DA Parliamentary Caucus said not only has the ANC gone out of its way to appease the EFF by including state custodianship of land as part of their new proposal to the Section 25 amendment, they are now going the extra mile to meet the demands of the EFF.

“The announcement by the EFF that it will be meeting with the ANC’s ‘top six’ on Wednesday to negotiate a possible political settlement on their agreed plan on state custodianship of land is hardly surprising,” said Lotriet.  

“It is the latest in a series of infractions by this ANC/EFF partnership to ignore the opinion that was given to the Section 25 committee by Parliamentary Legal Services on the original mandate of the committee.”

Lotriet said state custodianship of land was not part of the mandate given to the Section 25 Ad-Hoc committee and neither was it included in the Bill that was presented and discussed during the public participation process.

She said Parliament’s Legal Services have already cautioned the committee against making amendments to the draft Bill without obtaining a fresh mandate from Parliament.

She said the legal opinion provided by Parliament’s Legal Services stated that:

  • We would advise the Committee to call for comments on any subsequent amendments that materially or substantively change the content of the Bill. This advice is accentuated by the nature and importance of this Bill, as well as the intensity of its (perceived) impact on the public and that Parliament has considered it necessary to do extensive public hearings. 
  • We would also advise that any such material or substantive amendments and amendments that extent the scope of the Bill be forwarded to Provincial Legislatures for their views. 
  • With regard to whether the Committee should approach the House to seek permission for amendments that constitute new ideas, we would recommend that the Committee errs on the side of caution, so as to ensure that it fully complies with all procedural requirements underlying this Bill.

“State custodianship is undoubtedly a material and substantive change to the content of the original Bill and the ANC/EFF coalition has made no effort to comply with the opinion given by Parliament’s legal services,” said Loteriet.

“This means that the planned political settlement that the ANC/EFF coalition are hoping to reach is based on an illegality that emanates from the Committee’s failure to comply with the law.”

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