A legal battle may be looming over plans by the ANC to change the constitution to make it easier to expropriate land without paying for it, with widely divergent views over the process that needs to be followed.
Land seizures could violate the founding provision in section 1 of the constitution, which guarantees human dignity, rights and freedoms, outlaws racism and ensures the supremacy of the rule of law, according to Robert Vivian, a professor of finance and insurance at the University of the Witwatersrand’s school of economic and business sciences. It can only be amended with the backing of 75% of lawmakers in the National Assembly, he said.
“I can’t see an argument anyone could put up against this,” Vivian said at a function hosted by the Free Market Foundation in Johannesburg on Wednesday.
Pierre de Vos, a law professor at the University of Cape Town, disagrees. He argues that section 25 of the constitution, which deals with land rights, can be changed by two-thirds of lawmakers without violating any other provisions on condition there isn’t arbitrary expropriation and correct procedures are followed.
Government data shows more than two-thirds of farmland is owned by whites, who constitute 7.8% of the country’s 57.7 million people — a status quo rooted in colonial and white-minority rule. The ANC decided in December that the situation is untenable and tasked a parliamentary committee to review the constitution to address it. The panel has yet to propose amendments.
The ANC controls 62% of the seats in the National Assembly, while the Economic Freedom Fighters, which wants all land nationalized, has 6%. The Democratic Alliance, which favours leaving the constitution unchanged, has 23% of the seats.
Agri SA, the nation’s biggest farming industry lobby group, said last month it will go to the country’s highest court to protect property rights.