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Legal battle looms over land-seizure plan

Academics split over threshold needed to change constitution.

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.

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The debate about land ownership is a good populist mechanism to win favour with the masses. The ruling party has slowly been losing their more extreme supporters to the EFF, and could only win them back by pulling this trick out. Sadly this debate has been going on since the late 90’s when the ruling party started buying land from farmers. But the plan has not worked out in all cases as reported in the media and on programs like Carte Blanche. Farms handed over to community trusts often get sold to other farmers or become unproductive. Independent research, some of which was published here showed how ineffective the ruling party has been to implement something that they actually wanted to do. Figures have showed far less than 10% of land changing hands since the project started. I will concede that the land debate is a difficult one, but it is clear to me when I see the informal settlements surrounding large cities that employment and access to services is a far more pressing issue. What ever happened to the National Development Plan? What happened to targeted 5% growth to reduce unemployment? Cyril is currently playing both sides trying preserve his nomination as candidate for the ruling party, I don’t think he will be able to tip-toe around the King Goodwill issue forever.

The ANC must be wary that AGRI SA and SA farmers don’t bring the country to its knees before they, the ANC do. Although agriculture’s contribution to gdp is not much no one knows what they discuss behind closed doors….AGRI SA is definitely not sitting around and wait for better days. No winners either way.

Farmers have been reasonable for a very long time and Agri SA has often said that they will support structured and organised land reform but these requests fell on death ears. I will watch them from the side as they burn everything down to the ground and leave nothing but scorched earth. Then food prices will sky rocket. Malema said that “the EFF stands for the absolute destruction of white privilege”. I hope he can bear the consequences of what he started.

Correct! What people really need is jobs so can buy whatever they want – if a farm then let it be a farm. But crashing the economy (and currency) is stupid. I know of a Zimbabwean who’s whole monthly pension is (almost) enough to buy just 1 bread.

[Cyril is currently playing both sides trying preserve his nomination as candidate for the ruling party, I don’t think he will be able to tip-toe around the King Goodwill issue forever.]

1. Impossible to play the game on both sides, the markets are unforgiving and won’t allow him to do this

2. The King Goodwill issue is going to get blown to pieces in the courts sooner than anyone is expecting

Ramaphosa is out of his depth and he is cow towing to the populists…he’s already lost the game he tried to play

I bet you

<5% of land claimants really want to farm commercially
<1% of land claimants can probably farm properly
About 0% land claimants have access to capital and agri-finance

100% land claimants want freebies even though they don't know what to do with the asset.

We're about to see one of the biggest failures in commerce unfold.

Everybody is missing the point here.

A farm is a business (like any other). If after more than two decades, a certain minority still overwhelmingly dominates a certain business sector (despite draconian AA laws), then the obvious speaks for itself.

I ask (again): has any of those now demanding the constitution be amended to “legalize” theft (despite it then being a crime against International Law – iow a case for the USA Alien Tort Statute) – gone to a bank with a business plan for an agricultural business (iow a farm)?

All said – this is exactly what happened to the Ashkenazi Jews under the Socialist party in Germany in the 1930’s and -40’s. The German majority could simply not compete…

Everybody is missing the point here.

A farm is a business (like any other). If after more than two decades, a certain minority still overwhelmingly dominates a certain business sector (despite draconian AA laws), then the obvious speaks for itself.

I ask (again): has any of those now demanding the constitution be amended to “legalize” theft (despite it then being a crime against International Law – iow a case for the USA Alien Tort Statute) – gone to a bank with a business plan for an agricultural business (iow a farm)?

@Geraldine. I can go to the bank tomorrow with a great business plan, the benefit of a regular monthly income and maybe even my house as part surety for the loan and I doubt if the bank will give me the the R10m minimum required to start a farming operation. The odds of winning the lottery 3 times in a row is 10 times better than some township kid getting that loan. I really fail to see your point. I am afraid that sentiments like yours – bloody blacks are too lazy to do anything – is doing the case against EWC more harm than anything else.

All said – this is exactly what happened to the Ashkenazi Jews under the Socialist party in Germany in the 1930’s and -40’s. The German majority could simply not compete…

The real issue here is that Africa is still learning the game of capitalism and wealth generation. That takes many years with education and patience.

Capitalism isn’t an even playing field and white’s do have a huge head start- there are solutions to level the playing field, even after 24 years of failed policy but..

ANC has got a restless electorate to appease and are going for a quick fix. It will fail.. ANC knows it, all South African’s know it, the world knows it.

This is 100% about ANC maintaining power and nothing else.

The irony is, nobody in South Africa knows exactly who owns what land. The studies that have been done by various entities over the years are without exception, inaccurate, since the Deeds Office does not record a purchaser’s race. In the rest of the world, they would have ascertained the facts first before embarking on a huge land reform program. In South Africa however, we know better and will not be bogged down by facts and figures. When in doubt, shout EWC.

It All Appears to be as Clear as Mud .A country in limbo !

Welcome to Zimbabwe boys! It’s 1998 and the next 20 years will be fun! Prepare for the Rand to halve in the first few weeks of attempts to change the constitution.

It would be nice if somebody rational can have a look at the stats such as 72% white owned to calm this hysterics. I know it helps eyeballs, but a responsible journalist should drop the “without compensation” from expropriation as that is NOT the case.

1. A 25000 hectare farm in the kalahari is a lot of nothing comlared to 50 hectares in the winelands

2. I flat out do not believe the number as (1) how was tribal lands classified (2) what color is government land (3) how does one see through company owned land (4) we have no race register – I can introduce the researchers to many black van der merwes and potgieters.

I expect that underutilized farm land should be tageted. I also expect land with good coal / mineral reserves not being extracted will be targeted, not should be.

It is so easy, and even logical, for people to support the concept of redistribution of land. Land has a different meaning for every participant in the debate. Most people just want a place to build a house, and they should be supported. It is when politicians want to readjust the means of production that the logic in the debate starts to derail. There is only one workable way to “address the wrongs of the past”. The only way to redistribute assets successfully and sustainably, is by means of employment opportunities. The populist redistribution of the means of production is the guaranteed way to destroy employment opportunities and to sink the economy.

Our problem in South Africa is the same as in the rest of the free world. It is inevitable in any free market that the means of production will belong to the most intelligent and hardworking people. If it is possible to identify that group along racial lines in South Africa, it is a mere coincidence. After 25 years of equality before the law, all race groups in South Africa own property.

After all is said and done, we have to realize that the attack on property rights is an attack on intelligence, diligence, hard work, ethical behaviour, human rights and delayed gratification. The race issue is a scapegoat, a lame excuse to win the sympathy of lazy minds.

Cannot help but think that those against EWC walked right into the EFFs trap and responded emotionally to arguments put forward in favour of LAND REFORM. Land reform is however not what the current debate is about. The constitution already mandates the government to conduct land reform. So all the arguments about ownership patterns, the history of black disposesion, the failure of resettled farmers etc etc is redundant. We should have focussed on one issue solely namely why expropriation without compensation. If we made reasonable dispassionate arguments without racist overtones we could have held the moral higher ground. We ended up wrestling in the mud of populist hyped up emotion with the EFF.

Agree 100%…

Its not about the land… If it was about the land, there would be zero issue in paying for it. Its about racists pulling in the popular vote.

They have been building momentum towards this point for years. I doubt it gets handled in a clam and rational manner.

Anecdotal evidence: Afri-forum getting shouted at and having racial abuse flung at them when presenting to the commission.

It doesnt matter if you dont agree with what they saying, have a modicum of an intellect and argue a point. Character assassinations, points of order and derailment, thats where EFF have taken us… Its a sad state of affairs…. You cannot voice a different opinion in public or you are labelled a racist and will have a mob of angry militants coming to destroy your business and family business… The end of rationale debate is the first sign of irreparable damage to our society…

All the hassles could have been avoided if the ANC simply removed the “without compensation” from the equation.
Very few will deny the opportunity to any “previously disadvantaged” to own and work the land – do not try a pseudo legal process of changing the law to make theft legal.
Transform and compensate the current owners equitably.

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