Does expropriation without compensation impair or undermine property rights?

Feb - 06
2019

Does expropriation without compensation impair or undermine property rights?

What does land expropriation without compensation mean in South Africa? Is land an object, created for common use to all humanity, or property? What is property?

Where shall wisdom be found and where does understanding reside on what land is and should be in the affairs of mankind?

Against this backdrop, a visit was organized as part of the Banking on Africa’s Future (BOAF) project to Afriforum for the purpose of negotiating a better understanding of the land question and how best it can be handled on a win-win basis.

Ms. Miriam Mutizwa, a human rights activist based in the United Kingdom, was part of the BOAF delegation that visited Afriforum.

Below is her record of what was discussed:

“I agreed to meet with Mr. Kallie, the CEO of Afriforum, based on Mr. Mutumwa Mawere’s suggestion that it may be prudent and beneficial to broaden the scope and space for the literacy campaign that I am passionate about especially in respect of the centrality of the rule of law in nation-building.

On this basis, I took the decision to share some background information about my own work in the UK aimed at raising awareness that at the core of the Zimbabwean problem is not legitimacy but the absence of active citizenship on issues that matter to all.

I was also mindful that the approach of Afriforum to issues is also partly influenced by the experiences of Zimbabwe in handling the land reform.

I was also curious to understand the implications and consequences of the constitutional judgment in respect of the SADC Tribunal matter in which the SA Constitutional Court found in favour of the Zimbabwean farmers whose land was expropriated without compensation.

So I was apprehensive that Afriforum as projected in the media was an organization that is primarily concerned about the race-factor on any issue that they may seek to advance.

I was pleasantly surprised to learn that Afriforum’s approach is broader than what I had been made to understand. I learned that the organisation is also primarily concerned about promoting and protecting the rule of law within the context of a unitary state.

The meeting was educational and productive to say the least. On the issue of expropriation without compensation, Mr. Kriel said that as an organization, Afriforum’s position is that this policy, notwithstanding the fact that the ANC and the EFF may have the necessary numbers to amend s 25 of the Constitution, is inherently unconstitutional and, therefore, would do more harm than good.

Coming from my perspective, I had no problem understanding the constitutional issues inherent in the policy premised on land as a property of the generality of blacks.

We discussed the relationship between land and blacks, land and government, and government and blacks.

I have had the opportunity of sharing the content and context of our meeting with former Vice President of Zimbabwe, Hon. Joyce Mujuru, who holds the view that expropriation is and ought to be a viable policy option especially having regard to the fact that the willing buyer and willing seller policy has failed to deliver the promise of the land to the majority.

Her proviso, however, is that improvements on land, that she believes inherently belongs to blacks, should be compensated for.

This approach departs from the position held by Afriforum that any dispossession of poverty without paying the market value is inherently unjust and, therefore, cannot pass any constitutional muster.

I have appreciated both sides of the argument and believe that we need to invest in literacy on what property is and whether land can be alienated from improvements to allow for land to be valued separately from the improvements added by man.

I am convinced that a shared understanding on what property is would go a long way towards reducing the differences of approaches in regards to the resolution of the land dispute that is not only limited to SA but to perhaps many countries in Africa where the inequality in access to land has a colonial legacy.