ANC president Cyril Ramaphosa knows the expropriation of property without “just and equitable” compensation, as specified in section 25 of the Bill of Rights, is “nonsense”.
So says human rights and public interest attorney Richard Spoor, who is well versed in the history of land restitution and land reform in South Africa post-1994.
Spoor has labelled the ANC resolution to amend the constitution to enable the widespread expropriation of land without compensation, as advocated by the EFF, as “wild and loose talk driven by crass populism”.
For more than 20 years, Spoor has been among the lawyers who have fought legal and administrative battles to restore land ownership to black communities and thousands of people dispossessed during the apartheid era.
“This call - expropriation without compensation - is just like that other slogan, “radical economic transformation”. People imagine it means something, but on interrogation they have no idea what they are actually calling for,” he said.
The law already provides for expropriation without compensation in circumstances where it would be just and equitable to do so, he said.
This call cannot be reconciled with the rule of law. “No court could possibly uphold a law intended to have that effect. So it cannot happen.”
Given that Section 25 of the constitution relates to not only fixed property, Spoor reckons removing the “just and equitable” clause would in effect “give licence to the state to go into any area, take your home, grab what they like”.
“Once the state is allowed to do that, you will never have the rule of law and I don’t think there is anyone calling for that - asking permission for the state to act illegally,” he said.
Spoor argues most legitimate land restitution claims have been settled. The fact that there are unsettled claims relates more to bureaucratic bungling, a lack of merit in the claims themselves and a lack of skills and capacity in the Department of Rural Development and Land Reform.
The greatest pressure for land is in urban areas to which people are flocking for work and other opportunities, Spoor said. This is where the state should be focusing its efforts.
He argues if the government was serious about the legitimate objective of getting land ownership to be more representative of the demographics of the country, it would put more money into land reform.
“But the budget for land redistribution is less than R5billion a year, which is a fairly small amount compared to other budgets.”
So what is the real story beyond the ANC’s resolution to amend the constitution?
In the absence of any answers - or any policy framework - Spoor believes it is about creeping nationalisation, with the government wanting to take ownership and control of all land and then lease it.
“Expropriate means the state acquires the land, so if people think expropriation without compensation means that they will get land, they are deluding themselves.”
As things stand, there are no clear policies on what the state should do with land that is expropriated.
“There is no openness or transparency about what is happening with land acquired by the state for redistribution. There are no regulations or controls. It really amounts to the exercise of unfettered discretion by officials in a way that can’t be checked, measured, controlled or regulated.
“The real questions are: Who is it going to be taken from? What is to be done with it? Who is it to be allocated to? And how is it to be allocated?
“There is no clarity. There is not even a proposed policy beyond some obscure white paper documents that waffle this way and that. Quite frankly, (it’s) a profoundly empty and ignorant demand, nothing more than a slogan.”
And if it were to happen, it would certainly not be about redistributing land to the poor but would most likely result in valuable farming land ending up in the hands of corrupt political elite groups as has happened in Zimbabwe.
Expropriation without compensation “is a non-negotiable, cardinal pillar No 1” of the EFF’s founding manifesto,” said general secretary Godrich Gardee, who is predicting its victory in next year's elections.
“An EFF government will be bold and interventionist. It will take back land and give it people who were dispossessed of it during the apartheid and the colonial eras,” said Gardee.
“People need land to plough and build houses and to farm.
“We will provide seed, equipment and capital to work the land - and promote commercial farming in a way that it belongs to all the people of South Africa."