The main themes that arose from Monday’s discussion on land reform point to the lack of nuance in our conversations on this topic. Political point-scoring and over-simplification have prevented the discussion from moving forward among the public.
Ruth Hall warned at the beginning of her address that amending the Constitution should not be based on political score-settling. Legislation and other policies created from the Constitution will have lasting effects on South African citizens. “We have a State that has chosen not to use its s25 powers and has now chosen to scapegoat the Constitution,” she said.
The importance of the land reform discussion
Perhaps we need to focus on need and demand for land as a basis for redistribution instead of focusing on proving that dispossession happened. We all know it did. We may start treading in murky waters when we decide to move the date of dispossession to before 1913. It will become a time-consuming, convoluted process that may have courts and policy-makers alike moving in circles.
Hall explained that the Constitutional review Committee public hearings are the perfect opportunity to answer the questions raised in the 1990s regarding transformation and land reform. Land is not only about having a piece of property to call one’s own. It’s also about giving people the dignity that was taken from them by a racist government.
The panel agreed that it is essential that people are engaging in the topic of land reform in order to make the process of land redistribution more transparent. The state needs to be held accountable for the rationale it uses to determine who gets which land and how.
It may be premature to amend the Constitution
It’s important to understand that s25 is a layered provision. It does not give absolute protection for private property ownership. It firstly provides for protection against unnecessary and unjustifiable deprivation of property. This, from the onset, gives the State a considerable amount of power to provide for land reform without causing legal and social havoc.
That being said, certain phrases and provisions in the Constitution need interpretation. Courts need, while giving judgment on a case, to provide for what a phrase means and what consequences need to come from said provision. Despite there being several cases regarding property law adjudicated by the Constitutional Court, there has not been enough interpretation of the whole provision to warrant an amendment of s25. Specifically, “equitable basis” of s25(5) has not been interpreted enough to have a comprehensive, easily understood meaning, creating the possibility of misinterpretation.
The State has the opportunity to put the provision to the test by using its powers and speeding up the process of land reform, based on sound legal principles.
It’s also important to understand that amending the constitution is not going to be the antidote to address centuries long systemic oppression of the majority of South Africa’s population. Siyabulela Manona stressed the importance of a policy that covers all aspects of expropriation: “More than 50 pieces of legislation were created in the 20th century that ensured that black people would remain disenfranchised. With the advent of a democratic SA, they did not magically disappear, many of them lay dormant in the statute books and will until they are brought before the court to be struck down.”
Manona suggested the creation of a database that would allow everyone to access the necessary information regarding all property in South Africa. This would make the process of redistribution more transparent and would prevent collusion.
Discussions we should be having
Mazibuko Jara offered the possibility of alternative methods of compensation. The provision does not compel the state to pay monetary compensation and it does not have to be immediate. Therefore we can explore the possibility of compensating current owners in ways that will ensure that overspending is prevented.
There is a danger of over-judicialising land reform. When that happens, it may slow down the process of redistribution and cost billions more than necessary. We need to be careful of the precedent amending the constitution for political agendas will create. An overarching, general and thorough policy that concretises the process the state follows in order to protect poorer communities needs to be created very soon.
The way in which land is valued is important to the process of redistribution. Market value is not the only way to go about it. It would be tragic to spend so much money making sure the land changes hands and then having none left to ensure the redistribution process is sustainable and benefits generations to come.
The land reform matter is far from over and more complex than politicians claim it is. South Africans cannot be used as pawns in a political battle. The disenfranchised deserve to be given back their birthright. The country deserves to thrive and generations deserve to be protected from elite capture.
But we all deserve to have this discussed carefully and constructively.
By Karabo Baloyi