Land custodianship

In recent weeks South Africa observed numerous developments related to expropriation of property without compensation (EWC) and amending section 25 of the Constitution.

The deliberations in the Parliamentary Ad-Hoc Committee – tasked with considering the text of the constitutional amendment – raised serious alarm bells and included:

The FW de Klerk Foundation has been vociferous in warning South Africans about the serious ramifications of a number of proposals put forward by the ANC and EFF – the most concerning, perhaps, being an EFF proposal that the state should assume custodianship of all land in the country.

President Cyril Ramaphosa has announced that he was opposed to state custodianship over land in South Africa. He said that “state custodianship equals nationalisation, and that is not what the dispossessed want” and added that “the negotiations between the ANC and the EFF were not exclusive and that the ANC remained open to negotiating with other parties”.

He also confirmed that “South Africa is a constitutional democracy, and no one can gainsay the role of the courts.”

However – and concerningly – after the above statements by President Ramaphosa the latest proposed amendment has expanded the principle that ‘the land belongs to and is the common heritage of all South Africans’ to the proposition that “The land is the common heritage of all citizens that the state must safeguard for future generations”.

This effectively proposes that custodianship would apply only to ‘certain (undefined) land’ and now reads as follows: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.

The National Assembly has extended the Ad-Hoc Committee’s term until the end of August – by which time it must present its proposal for the amendment of Section 25.

While effective land reform is mandated by the Constitution most experts – including former Chief Justice Arthur Chaskalson and the ANC’s own High-Level Panel – were of the opinion that land reform could be achieved without amending section 25.

Follow a discussion between the Foundation’s Adv Jacques du Preez and Mr Temba Nolutshungu – a director at the Free Market Foundation – on these developments and matters connected therewith:

Issued by the FW de Klerk Foundation

25 June 2021