Trevor Manuel: On the question of land expropriation and Section 25

Ujuh Reporter

Trevor Manuel’s views on the question of land expropriation in South Africa would have loomed large over ANC’s land summit held over the weekend.

Manuel reiterated the Freedom Charter’s guidance on the land question saying:  “The land shall be shared among those who work it!” and “There shall be houses, security and comfort.” He seemed to suggest that this provision is catered for in the current version of the constitution which might suggest that there is no need to amend the constitution to effect land expropriation.

Theoretically, said Manuel, expropriation without compensation is permitted as the Constitution now stands, provided that, as provided for in Section 25 (9), “Parliament must enact the legislation referred to in subclause (6)”. “In 24 years of democracy, parliament has not been able to enact such legislation. The Constitutional Court cannot draft the legislation, that is the role of parliament.”

Manuel expressed these views during his address of the the Archbishop Thabo Makgoba Development Trust lecture at the University of the Western Cape last week. 

Here follows extract from the speech dealing with the land question:

 It would be remiss of me not to touch on the issue of land that has become as necessarily topical as it has. Much of the focus is on Section 25 of the Constitution, the so-called “property clause”. In the context of drawing on the lessons of Nelson Mandela, the Freedom Charter is an important guide. The Charter splits the matter thus – the fourth clause is titled, “The land shall be shared among those who work it!”, and then deals with the racial basis of ownership and the redivision of the land to prevent famine and hunger. The ninth clause is titled, “There shall be houses, security and comfort.”

And says, “All people shall have the right to live where they choose, to be decently housed and to bring up their families in comfort and security.” Actually the Constitution makes a similar split. Clause 26 says “Everyone has the right to have access to adequate housing.” The Constitutional Court has opined on this matter in the “Grootboom” case, confirmed the right and required of government to conduct itself appropriately. Some years after that judgment, then Deputy Chief Justice Moseneke expressed concern that government had not acted appropriately. My sense is that this still remains the case. I am of the view that in the urban environment we are faced with a “Houses, Security and Comfort” matter, but there appears little desire to deal with this in the arena of protest since the onus is on the state to explain why they are not upholding the Constitution. In many instances of land occupation, the protesters believe that it is their right to occupy and expropriate without compensation.

The rural arrangement ought to lend itself differently to access to land for agricultural use. Again, Section 25 appears abundantly clear on a whole range of property rights issues. Theoretically, “expropriation without compensation is permitted as the Constitution now stands, provided that, as provided for in Section 25 (9), “Parliament must enact the legislation referred to in subclause (6)”. In 24 years of democracy, parliament has not been able to enact such legislation. The Constitutional Court cannot draft the legislation, that is the role of parliament.

I raise these questions because it is important that we engage with facts and figures to deal with the gaps and omissions, because as Madiba’s life of active struggle reminds us we, we must come together and focus on the task at hand – address poverty, inequality and unemployment. I reflected earlier on what I term the seven stages of the life and times of the formidable Nelson Mandela, and througout every stage, he demonstrated values of love, respect, integrity, service, transformation, dedication and perseverance.

In conclusion, as the author Tony Judt reminds us

Something is profoundly wrong with the way we live today. For thirty years we have made a virtue out of the pursuit of material self-interest: indeed, this very pursuit now constitutes whatever remains of our collective purpose. We know what things cost but have no idea what they are worth. We no longer ask of a judicial ruling or a legislative act: is it good? Is it fair? Is it just? Is it right? Will it help bring about a better society or a better world? These used to be the political questions, even if they invited no easy answers. We must learn to once again pose them.

In the spirit of Madiba, let us lead the people towards finding solutions.

news@ujuh.co.za

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