Return the stolen land – That’s the only real solution!
Sankara Policy and Political School
Submission to the portfolio committee of public works on public hearing on the Expropriation Bill 
What is section 25 of the South African Constitution and what does it serve? This Bill claims to amend section 25 of the Constitution (which is correctly known as the property clause). Section 25 of the constitution is in fact the clause that turns the 1994 political compromise into a constitutional imperative.
What were the terms of the compromise? It was basically that in exchange for political power being handed to black people, land and the economy shall remain in the hands of the white minority settler population. Section 25 legalises land theft and legitimises colonialism. Those who negotiated this compromise at the time said that it was a “tactical” move to gain power without too much bloodshed. The logic was that after power was secured the land would be returned. This section therefore was never about redistributing land but rather about securing a political compromise. Twenty one years after democracy we know that the compromise has been very bad for black people. This section has rendered our people landless in their own land.
Section 25 in its entirety is a yoke around the necks and shackles in the feet and hands of our people. It makes us slaves in our own land.
The argument of how bad section 25 has been for our people is made better by evidence. What is the evidence in the past 21 years to show the negative impact of section 25?
1. In 21 years, only 8% of the land has been bought back at a shocking R50 billion plus.
2. Between 1994-2004 a million farm workers were already evicted from land (this trend continues).
3. It will take 100 years to reach only 30% redistribution of the land.
4. Government has abandoned all targets for land redistributon (the 30% target has been abandoned). Government dumped this modest target as it was impossible to reach due to primarily the limitations of the property clause.
5. 50% of the population (black people) live under the poverty line.
6. Anti black racism is rife (colonial power relations have not changed)
How do we turn this situation around?
There is a need to have the courage to admit the first truth: that South Africa, all of it belongs to Black people; that the land question arises out of the arrival in 1652 of the white settler colonial population, and; that all land in South Africa is stolen property.
South African land Policy perpetuates illegality.
Does this committee have the courage to admit that, the land reform policy of South Africa since 1994 has been the perpetuation of illegality? If you buy stolen property you are as guilty as the thief that sells you stolen goods. In other words each time government pays white farmers for land, it is involved in a criminal activity. We are here to demand that you repeal/delete/remove the whole of section 25 and replace it with something more agreeable to the needs of our people so as to the address the historical injustice of land theft. Section 25 of the Constitution gives with one hand and takes with the other. It says two things at the same time – it protects colonial property relations and at the same time it approves land redistribution. This section plays finder finder with our people.
We have shown what the section was crafted for – political compromise! We cannot try to make it do what it was never intended to do. The section blocks land redistribution and distorts history. Trying to make land redistribution with this section is like trying to turn a cow into a lion. It simple won’t roar!
No we won’t pay for our land!
The real stumbling block of land redistribution to black people in South Africa is the idea of paying for stolen property. The Bill unfortunately in its current form, does not address this fundamental question. In fact it perpetuates the evil idea of paying for land.
If we remove the technical language and legalistic jargon of the Bill we see that it does nothing new. The Bill does not address why must we buy our land back. The Bill does not even assist in giving guidance on how “just and equitable compensation” should be paid (of course we reject paying for our land).
Committee, the drafters of the Bill have lied to you if they say this Bill puts mechanisms in place to end the “willing buyer willing seller” evil policy – it does nothing of that sort! This Bill is the extension of the failed market policy. This Bill is in fact an insult to black people!
What is Just and equitable compensation?
The whole argument on paying for stolen property turns on the phrase “just and equitable compensation”. The compensation section in the Bill does not offer a new solution or an alternative reading. It says, there can be expropriation of land subject to the iron law of the market (of course it lists the other non-market considerations to be taken into account). But we know that, in the final analysis, “just and equitable compensation” is determined by the market value of the land and to this end our courts have strongly indicated in this direction.
The Bill fails to provide a criteria that settles the meaning of “just and equitable compensation” in monetary terms. Ultimately this committee will take the Expropriation Bill to the National Assembly without being able to answer a simple question: in rands and cents what is “just and equitable compensation”? This matter shall in all likelihood be settled by the courts. It must be stated that the courts have historically been disappointing in interpreting compensation in these circumstances. Let us take three examples to illustrate this point:
Firstly, Judge Geldenhys in the land claims court tried to give interpretation to the clause “just and equitable compensation” and came to some complicated calculation that claims to take into consideration the same long list of considerations repeated in the Bill. He however did not solve the problem.
Recently, Head of the Constitutional Court, Deputy Chief Justice (DCJ) Dikgang Moseneke, has decided to rely on“inflation” to calculate compensation for those who have lost property and who are beneficiaries of the restitution process. DCJ Moseneke’s determination is open to the accusation of racism because white land owners are never confronted with valuation of their property based on the Consumer Price Index (CPI). It is an established principle that property is not evaluated on the CPI. So, as to what then was the thinking behind this weird logic, only God knows!
The third firm indication that the phrase “just and equitable compensation” within the current framework would mean “market value” was expressed in the Zimbabwean land expropriation matter which was first decided by the SADC Tribunal and then ultimately decided by the South African Constitutional Court. In this case DCJ Moseneke led the bench in concluding that compensation must be paid whenever there is expropriation. This led to a judgement which effectively foreclosed the property of the Zimbabwean state so as to pay compensation to the white farmer who lost property in Zimbabwe.
This Bill unfortunately leaves the landless at the mercy of courts. It fails four important tests:
1. Does the Bill end the “willing buyer willing seller” policy and practice? The answer is a No!
2. Does the Bill ensure that land will be in hands of the landless black majority? Again, NO!
3. Does the Bill resolve the meaning and criteria of “just and equitable compensation”? NO!
4. Does the Bill set targets as constitutional imperative for land redistribution? Yet another NO!
The Bill is timid, vague and repeats what we already know. The conditions for expropriation repeated in the Bill are covered in the existing section 25 of the Constitution (what is new or different?). The Bill does not take forward the process as defined by the section and, as we already know, is highly compromised. The Bill does not even seek to put emphasis on the reading of the section so as to ensure that historical redress trumps any other consideration. Worse, the Bill does not locate the land question in history and in the logic of land theft so that land expropriation is undertaken within a framework that would ensure decolonization and redress.
This Bill is a piece of paper to avoid doing what is right. It is a retreat from the truth. It is another mechanism to appear to be doing something when in actual fact doing nothing! This Bill is in essence a Bill of cowardice. This committee has to turn into an instrument of courage to achieve land redress.
What do we propose?
1. The whole existing section 25 be expunged/removed from the Constitution and be replaced by a section that explicitly recognises that land in South Africa is stolen property and that the primary purpose of redistribution of land to the black majority is for historical redress.
2. That ALL black people have a right to land in South Africa.
3. That a new subsection be inserted that legalises the occupation of land by the landless.
4. That eviction of farm workers and poor people from land be declared illegal and in this regard an end to the strange distinction between legal and illegal evictions.
5. That constitutionally determined targets be set and the responsible Minister be held accountable. To this end we propose that in the next five years 80% of the total land be redistributed to black people.
6. That the section give effect to a new department which shall be called the Department of Land Redistribution and it’s sole mandate be the redistribution of land and nothing else. Right now South Africa does not have a department that solely focuses on land redistribution.
6.That the section furthermore outlines a process where land ceilings shall be effected in accordance with the soil capacity of each of the regions and provinces..
7. That the values of mortgages (bonds) be adjusted to a value that excludes land in determining housing price because land must be offered to all for free.
Can these proposals be realised and are they within the prism of the law? The answer in both instances is yes! Amending the Constitution is a legal exercise. All you need is 2/3rds majority which the National Assembly already has given the fact that EFF has offered the ruling party its 6% to amend the Constitution so as to effect land return without compensation.
We appeal to the committee to be brave and to give this nation the long awaited justice. Committee, the decision is in your hands: to continue with colonialism and landlessness or to be bold and end the suffering of our people. Our people are ready for a new dispensation on land, a dispensation that puts Black First! For Land First! If you lack the courage, the people have lots of courage! If you cannot decide, let the people decide! Call a referendum! Ask the people of this country a simple but profound question: Do you want to buy back your stolen land? Vote YES or NO!
Let us assure you, if you fail to address the land question, then the people shall address it themselves! Failure to amend section 25 so as to bring it in line with the needs of the people would serve only to delay the inevitability. We are going to take this land. It is ours! Land First!
Andile Mngxitama and Ncedisa Mpemnyama
4 August 2015