Proposed laws to allow the seizure of land and property to redress the imbalance of ownership between black and white South Africans, could be unconstitutional and subject to the whims of ministers, rights groups told parliament on Tuesday.
Land remains a highly emotive issue in South Africa, where 300 years of colonial rule and white-minority government have left the vast majority of farmland in the hands of a small, mainly white, group of people.
The prospect of expropriation has drawn comparisons with neighbour Zimbabwe, where state-sponsored land grabs spooked investors and contributed to the country’s economic ruin.
Phephelaphi Dube, legal officer at the Centre for Constitutional Rights, a unit attached to former President FW de Klerk’s foundation, said the definition of “public interest” to justify the seizures in the proposed laws lacked clarity.
“(It) opens the door to arbitrary expropriation which is based on the essential whims of the minister,” said Dube at the first day of public hearings on the land laws.
Since the end of apartheid in 1994, the ruling African National Congress party has tried to redress the balance through a “willing seller, willing buyer” scheme, but has fallen well short of its target of transferring a third of farmland to black people by last year.
The revised Expropriation Bill is back at parliament after being withdrawn in 2013 due to the impending election in Africa’s second largest economy. The first draft was withdrawn in 2008 amid criticism from commercial farmers and other land owners over concerns it was unconstitutional.
Those concerns were echoed again in parliament on Tuesday.
“An expropriation may not be arbitrary, it must be in the public interest and there must be just and equitable compensation,” Anthea Jeffery, head of policy research at the South African Institute of Race Relations, said at the hearings.
“If the expropriation does not in fact meet these tests, it is unconstitutional and invalid,” she said.
South Africa wants to accelerate land transfers and access to mineral resources by the expropriation, and distributing land to the black majority is a key pillar of the economic transformation being championed by the ruling party.
Deputy minister of public works, Jeremy Cronin, expressed confidence in the proposed legislation, saying it would pass constitutional scrutiny and had broad support from business, labour and government.
South Africa’s power utility Eskom told parliament it backed the expropriation proposal as it was experiencing significant delays in acquiring land for the construction of electricity transmission and distribution lines.
Cronin said expropriation of land for use by utilities, such as Eskom, should be allowed in exchange for suitable compensation.
Besides a lack of clarity over definitions, concern was also raised at the hearings on what constituted fair and equitable compensation during the expropriation process.