Land-expropriation amendment could herald ‘Zimbabwe-style’ decline

TALI FEINBERG

This Jewish lawyer is by nature not alarmist, but he feels strongly that the African National Congress’s (ANC’s) approach to land reform and its latest announcement to have the process run by the executive instead of the courts could herald a Zimbabwe-style descent for South Africa.

The Sunday Times reports that the amendment will effectively remove the courts as the “decider” on whether the state will pay for land expropriation, and will instead give that power to a minister of land reform.

The proposal was reportedly adopted by the party at its National Executive Committee lekgotla earlier this month, and is expected to be voted on by ANC MPs in parliament in coming weeks.

“This is unprecedented. Remember, we have never before changed the Bill of Rights,” says Oppenheimer. He is sounding the alarm because he thinks people should be fighting “tooth and nail” to stop expropriation without compensation in its tracks. He has called on members of the public to write submissions to parliament to oppose the constitutional amendment. However, several people have received ‘block notifications’ from parliament advising them that their submissions contain inappropriate content. Oppenheimer has since advised people to make their voices heard through the ‘Dear South Africa’ submissions page.

Oppenheimer notes that since the ANC adopted land expropriation without compensation as an official policy in 2017, “property prices have been in a downward spiral”. He predicts that destabilising property rights could lead to the economy collapsing like Zimbabwe and Venezuela.

He points out that changing the Constitution is very difficult because it needs a two-thirds majority. However, if it does go through, more “draconian” legislation could follow, and that would need only a 50+1 majority. “It may start out with an initial bill that is not that contentious, but this could easily be changed in, say, an Ace Magashule or David Mabuza regime.”

He says expropriation without compensation targets land and improvements, which includes homes, factories and business premises. This can affect anyone living in urban and rural areas. Addressing the ANC’s latest proposed change of allowing an “executive” to have power over these decisions, he says the chance of expropriation on a whim becomes enormous. “‘Executive’ is a vague term. Does it mean the president, a cabinet minister, or the mayor of your municipality? Imagine if it’s up to the mayor of a small town, who expropriates your property without compensation because he doesn’t like you? It also opens the door to corrupt officials using expropriation powers for their own benefit.”

Retired Constitutional Court Judge Albie Sachs told the SA Jewish Report that with regards to this latest amendment, “The ANC is presenting the matter in a very clumsy way. My understanding is that the Constitution and the law currently allow for the executive to make the initial determination, and the court to approve. As long as the court has a free hand to make the ultimate determination, this isn’t problematic. I’m not sure that the court itself is well-suited to doing valuations, though it’s best suited to deciding on how to balance the different constitutional factors to be taken into account. The answer might be to create an independent compensation determination body, similar to a Chapter 9 institution … containing lawyers, historians, and people who know about land values, to make the initial determinations fairly speedily, with well-defined rights of speedy recourse to the courts.”

Paul Wisenberg, a partner at Maurice Phillips Wisenberg Attorneys, Notaries and Conveyancers, who has extensive experience in property-related disputes, says, “I don’t believe the alarm should be limited to just the Jewish community. All communities should be concerned including those communities that might benefit from the arbitrary decision process, as I have little doubt that the South African economy as a whole will suffer.”

He fears this amendment will go ahead “unless sense prevails, which it hasn’t up till now. Particularly if you consider the way this was introduced – it was underhand, and crafted with a view to elicit the least possible objection. The only possible light is that it seems that the Economic Freedom Fighters (EFF) won’t go along with it, and as the ANC in parliament requires a two-thirds majority to pass the legislation which it doesn’t have without the EFF, maybe it will be watered down somewhat.”

Wisenberg says that property in both urban and rural areas may be affected. “All areas are exposed, but I’m of the opinion that it will affect rural areas more. I believe that urban, abandoned properties – for example in Hillbrow – will be affected, and that will probably be a positive consequence.”

He is unsure how urban property owners can protect their properties. “With rural properties, some farmers have given their workers a share in the properties, and so on. This may stave off government intervention.”

Wisenberg believes “the aim of the ANC to bypass the courts will surely invite court action on the part of opposition parties and other organisations. This will surely delay its implementation, which again will create more uncertainty which creates an even greater anti-investment climate.”

Says Isaac Jocum, a cattle farmer near Vryburg, “When the ANC writes this new bill into law, by the stroke of that pen, it will not only devalue all property across the country, but will simultaneously remove more than 100 years of farming and agricultural experience and expertise from the agricultural sector and the country. This loss of experience and expertise cannot be obtained from books and learning institutions without the addition of a hands-on approach.

“The agricultural sector doesn’t function in economic isolation, it’s intricately linked to every part of the national economy,” he says. “By devaluing this large asset base, the economic consequences known and unknown will be far-reaching and devastating to an already fragile and failing economy with an ever depreciating currency. The last and only hope, which has not proven very successful in history, is in the hands of the international community to do whatever is necessary to prevent the bill going into law.”

But affordable housing advocate and Cape Town resident Gavin Silber, who has a Masters in urban planning from New York University, believes that it’s vital to speed up land reform, even if it means placing it in the hands of one person. “The longer we fail to support action on spatial justice in our cities – and the legal and policy framework already exists to do this – the greater the likelihood of extreme legislation being implemented in the near-future.

“Much of this can be achieved with the legislation that already exists,” says Silber. “Ministers, premiers, and mayors already have significant powers over land-use decisions that they aren’t tapping into. They could announce tomorrow that thousands of acres of well-located public land will be used for public good – affordable housing, land restitution, social services, and so on. This wouldn’t require amending the Constitution or going through lengthy court processes. The problem is political will.”