Western Cape Government opposes Constitution 18th Amendment Bill | Western Cape Government


Western Cape Government opposes Constitution 18th Amendment Bill

24 August 2021

Today, the Western Cape Government held a digital press conference unpacking the Provincial Government’s decision to oppose the Constitution Eighteenth Amendment Bill, 2021, through its comments submitted to the Ad Hoc Committee on the Amendment of Section 25 of the Constitution.

The amendment Bill seeks to amend the Constitution to expressly allow for expropriation without compensation. It succeeds a previous version of the amendment Bill which was published in 2019 for public comment.

The Premier of the Western Cape, Alan Winde, said: “We have, from the outset, opposed expropriation without compensation. The right to property is an important right that cannot be done away with. The current amendment Bill is also not only confusing and ambiguous but, on one possible reading, also seeks to exclude the important and constitutional role that courts should play in determining the amount of compensation paid. It also aims to further centralise power to the state by introducing the concept of ‘state custodianship’. In a country impacted severely by corruption and maladministration, further centralising powers to that level of government would be detrimental.”

Premier Winde continued: “The amendment Bill refers to national legislation, yet to be developed, and which we understand to be a reference to the Draft Expropriation Bill, 2019, that is proposed to give meaning to the provisions of the amendment Bill. It is problematic that the national legislation has not been developed and published for comment together with the amendment Bill because the two instruments need to be read together. This will create uncertainty on the circumstances in which expropriation without compensation will be applicable and which the national legislation must provide for.”

The Western Cape Government further rejects the amendment Bill because section 25 of the Constitution already allows for the balancing of rights.

“The Constitution doesn’t stop us from pursuing expropriation without compensation, and it doesn’t say that compensation is required. Instead, it balances the right to property against our broader constitutional values. It rightfully asks us to look at the circumstances where expropriation with substantially reduced compensation, or even no compensation, are justifiable and fair. Further amendments to the Constitution and legislation are simply not necessary,” added Premier Winde.

In the Western Cape Government’s submission to the Ad Hoc Committee, it is explained that expropriation without compensation is not the appropriate intervention to address issues of land reform. 

The Minister of Agriculture, Ivan Meyer said: “It is well established that land distribution in South Africa is skewed and that this threatens to destabilise our society. It is not the existing policy that has failed to create meaningful land reform but rather a lack of political will, poor implementation, corruption, and insufficient resources. The amendment Bill or proposed national legislation will not create meaningful land reform but rather risk exposing us to unintended spillover consequences.”

The Western Cape Government has further opposed the amendment Bill because of the economic impact expropriation without compensation will have.

The introduction of expropriation without compensation threatens to undermine the property rights of those who were previously disadvantaged and who have worked tirelessly to own their property. This policy will not address the slow pace of land reform and is unlikely to improve the livelihoods of those previously disadvantaged.

Research shows us that where similar policies were implemented in Portugal, Spain, Romania, Vietnam, Venezuela, Ethiopia, and Zimbabwe, those countries experienced a 13.9% decline in their GDP which led to higher interest rates and public debt, reducing service delivery. This further shows us that the policy will likely worsen the livelihoods of those previously disadvantaged.

To date, the Western Cape Government has submitted its comments to the Ad Hoc Committee, and it will hopefully result in a reconsideration of the amendment Bill. We have also, in previous comments, requested a Socio-Economic Impact Assessment on the potential impacts of the proposed Constitutional and accompanying legislative changes, which should have been undertaken prior to proposing such fundamental legislative changes, given its potential for causing significant harm to the economy and the lives and rights of poor and vulnerable citizens.