13 MARCH 2019
Advocate Wim Trengove’s proposals to the ad hoc parliamentary committee charged with crafting a constitutional amendment to allow expropriation without compensation (EWC) are damaging, naive and often mistaken on the law. (State must focus on redistribution in the land-expropriation issue, lawyers say, March 8.)
HOEVEEL VAN DIE ARMOEDE, WAAROOR GEPRAAT WORD, IS IMMIGRANTE??? MILJOENE WORD INGEVOER EN WORD AAN ONS VOORGEHOU AS “BURGERS” EN ONS MOET HULLE SORG EN INNEEM. WAT VAN B-BBEE – SWART BEMAGTIGING IS RASSISME
Law and Poverty: Perspectives from South Africa and Beyond Book Launch: Adv Wim Trengove
The charge by the government that the courts obstruct transformation has been rejected by Adv Wim Trengove, SC, a leading constitutional law lawyer. Delivering the keynote address at the launch of a new book, Law and Poverty: Perspectives from South Africa and Beyond (Juta & Co), in Stellenbosch on Thursday evening (31 May 2012), Trengove said the “responsibility for transformation rests squarely on the government” and the “courts do not in any way inhibit it in doing so.”
Trengove is reported as proposing new legislation stipulating that “white” land ownership should be presumed the result of historical “privilege” – and thus liable to redistribution – unless the owner can prove otherwise. He suggests this rule be confined to farmland, leaving residential property, pensions, and other property rights untouched.
But most farmers have bought their land, many since 1994 (roughly 5% of farms change hands annually). Most farmers also plough major amounts of working capital into their land each year.
It is absurd to “presume” all white farmers have acquired their land through “privilege”. It is also naive to think this presumption would be confined to farmland, rather than more widely deployed in the ANC-SACP’s determined march towards a “socialised” economy.
Trengove also suggests redistribution can be achieved without a constitutional amendment – and without compensation being paid – provided the state does not “take possession for itself” but passes land directly to beneficiaries.
Here he misquotes the Constitutional Court’s majority judgment in the 2013 Agri SA case. Chief Justice Mogoeng Mogoeng indicated that the state’s acquisition of “ownership” (not “possession”) is the hallmark of expropriation. Mogoeng thus found the state’s “assumption of custodianship” over an unused coal-mining right did not amount to expropriation.
Mogoeng also made it clear he was dealing solely with the facts before him – not laying down a general rule, as Trengove assumes. Three judges in the case cautioned against any such rule. Two also warned that Mogoeng’s approach was inconsistent with international law and could lead to the uncompensated “abolition” of private property rights.
Trengove overlooks the massive failure rate (at least 70%) of land-reform projects, the low demand for farmland among rapidly urbanising black South Africans, and the upsurge in poverty and hunger that followed land redistribution in Zimbabwe and Venezuela. Triggering an equivalent economic meltdown in SA will do nothing to overcome past injustice.
Dr Anthea Jeffery
Head of policy research, IRR
Parliament, Monday, 11 March 2019 – The Ad Hoc Committee to Amend Section 25 of the Constitution continued with hearings with experts on the question of land reform, which will assist with drafting the necessary constitutional amendment to make it possible for the state to expropriate land without compensation, in the public interest.
The committee heard on Friday from experts such as Adv Tembeka Ngcukaitobi, Adv Wim Trengove, the Office of the Valuer-General and a private valuer, Mr Peter Meakin. Committee Chairperson Ms Thoko Didiza thanked presenters, as the committee will benefit from their expert knowledge in what is possible when amending the Constitution.
Adv Tembeka Ngcukaitobi cautioned the committee not to combine the time and manner of compensation with expropriation. He referred to Section 25 (3) of the Constitution, which indicates that where compensation is payable, the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.
“Where land is expropriated, the owners must get off the land. The time and compensation can be discussed in courts. Surely such matters cannot go on for 10 years before the state finally gets its hand on the land?” he asked.
He further raised questions about non-owners, such as banks, who have a financial interest in farms. “We have heard that since the land debate started, many have mortgaged and re-mortgaged their farms in order to make it more difficult to expropriate. If the Constitution is amended to say don’t compensate the owner, Parliament should not open the door for compensation to be paid to banks.”
Adv Ngcukaitobi said it is farfetched that South Africa can operate on no compensation regarding land expropriation. He suggested judges should be the ones to decide on when “null” compensation should be paid.
Adv Trengove clarified that redress of unequal access to land should not be in dispute. His presentation highlighted the fact that according to a recent court judgement, expropriation of land does not address redistribution of land. The court judgement is clear that if the state takes the land and gives it to someone else, it is not expropriation. It is expropriation if the state takes the land and keeps it, and then leases it to communities or individuals.
The committee heard that currently there is room for Parliament to legislate on redistribution. If government takes the land and leases it, it would constitute expropriation. In response to a question, Adv Trengove said that where land is in white hands, from an historical point of view it must be seen as the product of privilege, unless proven otherwise. He went further to say the current hindrance is the “just and equitable” clause in the Expropriation Act, which is currently seen as market value or in line with “willing buyer and willing seller” concept. He suggested a balance should rather be struck between what the owner wants and that of the broader project of land reform.
The Office of the Valuer-General (OVG) said making expropriation without compensation more explicit in the Constitution would assist their work. As the Constitution is currently, some things are implied or ambiguous, and making it more explicit would be beneficial. Land and property is central to accessing capital in South Africa.
Ms Didiza, said “South Africa needs an effective system that takes the country forward.” The committee will now apply its mind before considering a draft interim report later this week.
ISSUED BY THE PARLIAMENTARY COMMUNICATION SERVICES ON BEHALF OF THE CHAIRPERSON OF THE AD HOC COMMITTEE TO AMEND SECTION 25 OF THE CONSTITUTION, MS THOKO DIDIZA.
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