The Council for the Advancement of the South African Constitution (CASAC) has made a written submission to the National Assembly’s Ad Hoc Committee to Initiate and Introduce Legislation Amending s. 25 of the Constitution.

CASAC confirms its supports for land reform to alter the skewed land holding patterns in South Africa. CASAC is of the view that the assumption behind the proposed amendment is that the Constitution presently does not allow for expropriation with no compensation. This is an incorrect interpretation of the Constitution, and we illustrate why this is so. The second part of the submission focusses specifically on the proposed amendment, and illustrates why, without fundamental institutional changes, these amendments will not likely bring about sustainable land reform underpinned by the rule of law.

The areas of focus for land reform should accordingly be:

• The institutional re-organisation. The Commission responsible for restoration and restitution of land rights needs a new mandate, and additional resources. It has failed to provide a proper institutional base for land reform.
• Focus on corruption and looting in land reform. There are many indications that land has also become a site of corruption. Capture of the land reform programme by the elite presents a danger as great the failure to distribute land to those who need it the most.
• The resolution of existing land claims in accordance with the order of the Constitutional Court in the matter of Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others (CCT40/15) [2019] ZACC 10; 2019 (5) BCLR 619 (CC); 2019 (6) SA 568 (CC).
• A clear policy decision to focus on redistribution of land to those in need. While the restitution of land to those who were dispossessed remains important, it is now plain that land restitution will not resolve the shortage of land to those who need it. The central challenge of the state is to shift its focus towards a framework for the redistribution of land based on need.
• To affirm the centrality of the rule of law. No land reform programme can succeed if it is not based on the rule of law. There is a risk of elite capture of the land reform programme to benefit state officials, politicians and those with access to funds. However, land reform should prioritise the needs of the landless.

We emphasise that because of the centrality of land dispossession in our history, section 25 is the primary instrument for the transformation of land rights. Private property rights of the racial groups that were privileged under apartheid are not the focus of section 25. Quite the contrary. It is the transformation of those relations that is the focus of the section. That transformation, in turn, aims at protecting and advancing the property interests of the previously dispossessed.

We point out that the State’s failure to properly implement the existing legislation has hampered progress on land reform, and this will not be resolved by merely amending s.25. The rights of occupiers of land – labour tenants and people living in the former homelands – must also be addressed as part of a comprehensive land reform programme.