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Updated Feb 7, 2020

South Africa’s ruling party, the African National Congress (ANC), is likely to take issue with a draft bill to amend the constitution that would grant the courts the power to determine the value of expropriated land. The draft bill is undergoing public comment until the end of February after being passed in December by a parliamentary ad-hoc committee tasked with overseeing an amendment to Section 25 of the South African constitution. As it currently stands, Section 25 stipulates, “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”

Since Cyril Ramaphosa became president in 2018, the question of land expropriation has become an extremely contentious issue in the South African body politic. The ANC and the  Economic Freedom Fighters (EFF) call for expropriation of land without compensation to correct land disparities that are a holdover from South Africa’s institutionalized segregation under apartheid. At a January gathering of the ANC, the party announced its position that the executive should have the power to expropriate land and determine compensation.

The National Executive Committee (NEC) of the ANC argued that the courts lack the capacity to conduct land evaluation, whereas the executive has an Office of the Valuer-General and can thus act proactively on the issue of land reform. Opposition parties such as the Democratic Alliance (DA) and African Christian Democratic Party (ACDP) spoke out against the proposed change on the charge that it would open the way for “corruption and political interference”, in the words of the DA’s parliamentary caucus chairperson, Annelie Lotriet, as quoted by the Mail & Guardian.

South Africa’s executive branch has always held power over land evaluation, but has rarely used this power in the past 25 years except in cases of restitution. A research associate at the Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape, Rosalie Kingwill, speaking with the Mail & Guardian, pointed out that the ANC’s reasoning isn’t technically wrong, but the legal framework governing land expropriation is currently weak in South Africa, and that the judiciary needs to be involved to develop the law. Policy, however, needs to be left to the legislature and executive branches, she said.

The ANC does not have does not have the two-thirds majority they would need to have its amendment to the bill passed and has been talking to other parties to convince them to support the proposed amendment. The EFF, whose members hold some of the most extreme positions on land redistribution, said they will support the bill that is out for public comment.

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