1. Introduction
Thank you Mr Suhr, for your introduction and the perspective of KAS on our important conference. Former President De Klerk has set the scene further by his astute analysis and comments about the possible change of section 25 of the Constitution.
My task is to take that further and proverbially lay the table for our conference, its speakers and its audience. I will do this by, firstly, reiterating the position of the Foundation on property rights and land reform, and secondly, by pointing to three conditions for constitutional land reform and extending property rights to all South Africans.
In today’s first session, we will hear from a range of experts on the crucial importance of property rights for any economy and democracy. In the following sessions we have asked experts to share with us their views on what needs to be done to extend property rights to all South Africans, using accelerated land reform. We focus on three areas: agricultural land, urban land and communal land. In the last session we also asked a member of the High Level Panel led by former President Motlanthe to share with us what that Report says should be done. We will have two panel discussions with ample time for the audience to become involved in the discussion.
2. The Position of the Foundation on Property Rights and Land Reform
In general, it is the Foundation’s view that changing section 25 is not necessary to achieve effective land reform. In this, we agree with the Motlanthe Report. Effective and accelerated land reform is possible with the present wording of section 25.
We also believe strongly that changing section 25 to allow expropriation without compensation (EWC) is very dangerous and will have extremely negative political, economic and legal-constitutional consequences. Among the political consequences are that it would lead to political instability and even anarchy. It would be a free for all. It would also all but break the national accord that we as a nation agreed on in 1994.
In terms of the economic consequences, we believe – with many others – that it is impossible to implement EWC in any form without causing irreparable harm to the agricultural sector, food security, other sectors of the economy and future investment in the economy. And these four conditions are those specifically mentioned in the ANC’s Nasrec resolution. To quote a self-acknowledged communist, Deputy Minister Jeremy Cronin, it would be like fitting a square peg into a round hole. In addition, the test for economic harm is not an objective one, determined by Parliament or politicians. It is a highly subjective one, decided by farmers, business people and property owners. It is actually quite simple: if they perceive EWC as harmful, it will be harmful – because they will stop farming, investing and buying and selling.
May I also point out that business people and investors hate and fear nothing more than uncertainty. With the section 25 process in progress and its end not in sight, we can already see that the economy is being hurt by economic actors (including many farmers) playing a waiting game and not committing to new investment. This should be a lesson to all concerned.
The legal-constitutional implications would be as serious. In changing section 25 to allow EWC, and targeting a specific group of South Africa’s population, the law no longer becomes a law of general application and would be running contrary to the values of section 36. In allowing EWC, the section 25 reference to just and equitable compensation would have to be removed, detracting from the principles of legality, which undergird the Rule of Law. And finally, taking out the jurisdiction of the court to approve the compensation, would transgress all known legal principles and run contrary to established legal norms.
But having stated all of that strongly, the FW de Klerk Foundation is also fully supportive of extending property rights to all South Africans and of accelerated land reform as section 25 stipulates. In our parliamentary submission we therefore went beyond saying “no” to a change; we actually made constructive proposals how to achieve effective land reform and extend property rights to all South Africans. We support this, as we do an effective state addressing the triple issues of poverty, inequality and unemployment, as well as other important issues such as quality education and healthcare.
I will now deal with what we believe to be three conditions for constitutional land reform and extending property rights to all South Africans.
Speech by Executive Director, Dr Theuns Eloff
4 July 2018