Briefing to the Parliamentary Constitutional Review Committee Does §25 of the South African Constitution Require Amendment? Presentation by Roelf Meyer and Malcolm Ferguson September 5th 2018

Briefing to the Parliamentary Constitutional Review Committee The South African Constitution establishes the fundamental principles of governance in South Africa §25 (the so-called Property Clause) of the South African Constitution contains a clear mandate for the transformation of property rights to fulfil the imperatives of “fairness, equity and justice in access to land.” To this end, as it stands, §25 of the South African Constitution provides for circumstances under which it can be “just and equitable” to undertake Expropriation of property without Compensation

Briefing to the Parliamentary Constitutional Review Committee A broad consensus exists that this enabling constitutional mandate for transformation has not been tested by government to determine whether Expropriation without Compensation is achievable without amendment of the constitution. This begs the question as to whether constitutional amendment is therefore necessary? It is the view of ITI, that amendment of the constitution is not necessary to achieve this objective!

Briefing to the Parliamentary Constitutional Review Committee 8 months of intense and emotional debate about this issue demonstrates conclusively that the racially skewed land ownership structure in South Africa is the most abiding symbol of the second class status assigned to black South Africans by our long history of colonial and apartheid dispossession That this situation continues almost a generation after South Africa became a democracy, is firmly and widely assigned to government failure.

Briefing to the Parliamentary Constitutional Review Committee There is however, enough blame to go around, as the bulk of South Africa’s farmers could certainly have done more to address this festering wound of injustice a great deal earlier by sharing their expertise and assets in the manner which is now starting to happen. Finger pointing at this late stage achieves nothing as the challenge remains – what do we do now? There have to be practical solutions to the issue of access to land on a basis which is just and equitable – ITI’s written submission of 14th June, 2018 to this committee makes some suggestions!

Briefing to the Parliamentary Constitutional Review Committee Lastly, if the constitution is to be changed it is the ITI view that this process should seek to provide clarity in respect of the circumstances under which Expropriation without Compensation is envisaged the conditions under which it will be just and equitable for Expropriation to be undertaken without Compensation and amendment of the constitution is undertaken in a manner which ensures a defined legal process which is always subject to judicial review

Briefing to the Parliamentary Constitutional Review Committee