The passing of the bill to amend Section 25 of the constitution could very likely be passed based on the numbers of votes required by members of the National Assembly.
Presently Section 25 of our constitution deals with the right to property, limited in that property may only be expropriated under a law of general application (not arbitrarily), for a public purpose and with the payment of compensation.
The EFF’s proposed amendment seeks to remove the part that reads “subject to compensation”, but what is most notable about this particular aspect of the debate is that government has never developed a land reform policy that considers “just and equitable compensation” from any standpoint other than the “willing buyer, willing seller” principle, according to Prof Ruth Hall, of the University of the Western Cape.
So, how likely is it that the bill will be passed?
Section 74 of the Constitution provides that a bill to amend the Constitution can only be passed if at least two-thirds of the members of the National Assembly (that is, at least 267 of the 400 members) vote in favour of it. If the amendment affects provincial powers or boundaries, or if it amends the Bill of Rights, at least six of the nine provinces in the National Council of Provinces must also vote for it. To amend section 1 of the Constitution, which establishes the existence of South Africa as a sovereign, democratic state, and lays out the country’s founding values, would require the support of three-quarters of the members of the National Assembly. There have been seventeen amendments since 1996.
At present the National Assembly is composed of:
African National Congress (ANC) 245 seats (61.7%)
Democratic Alliance (DA) 89 seats (22.4%)
Economic Freedom Fighters (EFF) 25 seats (6.3%)
Inkatha Freedom Party (IFP) 10 seats (2.5%)
National Freedom Party (NFP) 6 seats (1.5%)
Freedom Front + (Vryheidsfront Plus, FF+) 4 seats (1.0%)
United Democratic Movement (UDM) 4 seats (1.0%)
African Christian Democratic Party (ACDP) 3 seats (0.8%)
African Independent Congress (AIC) 3 seats (0.8%)
Congress of the People (COPE) 3 seats (0.8%)
Agang South Africa (AGANG SA) 2 seats (0.5%)
African People’s Convention (APC) 1 seat (0.3%)
Pan Africanist Congress of Azania (PAC) 1 seat (0.3%)
Numbers above as per the People’s Assembly as at 8 July 2018.
Looking at the above one would assume that the ANC, EFF, IFP and PAC would definitely vote for the bill which will give a total of 281 votes – enough to pass the amendment of Section 25 of the Constitution and make land expropriation without compensation part of our constitution.
One has to balance ANC support for the bill based on the looming National Elections and also on whether the ruling ANC will give their whole hearted support to the EFF as the champion of the proposed amendment. By doing so the ANC may be handing bucket loads of power and brownie points to Julius Malema and cronies.
How can we be sure that the IFP will support the bill?
A meeting of a Ministerial Task Team and National House of Traditional Leaders has resolved that the traditional land would not be affected by the proposed amendment of Section 25 of the Constitution.
The Ministerial Task Team was appointed by the Cabinet two weeks ago to engage the leadership of the National House of Traditional Leaders and leaders of provincial houses on their concerns on land expropriation.
Parliament is currently conducting public consultations on the proposed amendment of Section 25 of the Constitution.
Cooperative Governance and Traditional Affairs Minister and task team convener, Dr Zweli Mkhize, said this process did not include land under traditional leaders.
“A wrong impression has been created that the discussion on land expropriation includes land in the hands of traditional leaders. Government wishes to clarify categorically that when government talks about land expropriation, we are referring to the 87 percent of the land not the 13 percent that is under the control of traditional leaders and black people. We wish to emphasise that the 13 percent of the land is not under any dispute,” said Minister Mkhize.
Minister Mkhize also emphasized that President Cyril Ramaphosa had hosted a breakfast of the BRICS Business Council on Friday morning and at its conclusion, he stated without ambiguity and clarified the misunderstanding on land targeted for expropriation.
Government has noted the serious concerns raised by traditional leaders with respect to the report of the High Level Panel appointed by Parliament on the Assessment of Key Legislation and the Acceleration of Fundamental Change, led by Former President Kgalema Motlanthe.
“Government would like to emphasise that the views expressed in that report are not those of government or the governing party but those of the Panel,” said Minister Mkhize.
The task team will comprise Agriculture, Forestry and Fisheries Minister Senzeni Zokwana, Rural Development and Land Reform Minister Maite Nkoana-Mashabane and Communications Minister Nomvula Mokonyane.
The task team is part of a bigger Inter-Ministerial Committee on Land Reform which will be led by Deputy President David Mabuza to coordinate and implement measures to accelerate the redistribution of land, the extension of security of tenure, the provision of agricultural support and the redress of spatial inequality within a broad and comprehensive land redistribution and agricultural development programme.
Mkhize said the task team and the traditional leaders had concurred on the proposal for the expropriation of land without compensation.
The meeting, Mkhize said, had focused on land reform.
“It is also important for us to indicate that while that process is going in parliament, we needed to see confer with the traditional leaders to see what support we can offer as they might need to make their own representations to the parliamentary process where at the moment a number of consultative processes are going on in the various communities,” he said.
He added that all South Africans, including traditional leaders, were expected to review Section 25.
“The issue of land reform and the return of land is an important issue and as always been part of issues traditional leaders have raised. Further to that traditional leaders have raised the question of the security of tenure in the area under traditional leadership. They have raised a proposal that government should be issuing title deeds through the traditional leadership,” he said.
Government, the Minister said, was also considering systems that would ensure that investments were possible and banks accept the nature of the land tenure that would be ultimately be agreed upon.
“We have agreed among ourselves that we will work with the traditional leadership institution to refine the research that is needed so that the correct form of land tenure is achieved for all the areas that have a traditional leadership.
“We have agreed that we would table these issues to Cabinet. We don’t foresee that the two processes should be delayed by the fact that there is a parliamentary process on the other side whereas this other process is something that needs to be worked on with the departments and government to refine it.
“We have agreed that there was a need for a land summit to be convened so that a number of proposals from it can be tabled. We have agreed that there will be a team that will work between the HTL and the various departments to take this matter forward,” the Minister said.