Abstracts

40 An EWC constitutional amendment, which would enable the government to take possession of an individual’s land without payment, would be feasible only if it is strictly limited. In September 2018, President Ramaphosa created the Presidential Advisory Panel on Land Reform and Agriculture to advise the Inter-Ministerial Committee on Land Reform and Ramaphosa’s Cabinet about the shortcomings of current land reform policy and comment on proposed solutions. The panel’s 2019 report rejected the position that EWC is currently constitutional (Mahlati et al., 2019). However, the Panel’s position is not widely accepted and directly contrasts the recommendations of the CRC, which in its report recommended “That Section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without Compensation, as a legitimate option for Land Reform” (2018, p. 34). On December 4, 2018, the National Assembly adopted the CRC report, which recommended making EWC an explicitly constitutional method of conducting land reform (CRC, 2018, p. 28). Two days later, the National Assembly appointed the Ad Hoc Committee to Amend Section 25 of the Constitution. After public roundtable discussions and expert consultation, the Committee tabled their report to the National Assembly in March 2019. The report indicated that the proposal of an amendment was not feasible before the expiration of the legislative session, but that the matter should be concluded by the end of the next session: the Sixth Parliament. While the 2018 Committee failed to present an amendment, its work was foundational to its Sixth Parliament successor: the Ad Hoc Committee to Initiate and Introduce Legislation Amending Section 25 of the Constitution (hereafter referred to as the Sixth Parliament Drafting Committee). In December 2019, the Sixth Parliament Drafting Committee released a draft of the Constitution Eighteenth Amendment Bill, which amends Section 25 to allow courts, in land reformcases, to “determine that the amount of compensation is nil” and directs the National Assembly to pass national legislation that “sets out specific circumstances where a court may determine that the amount of compensation is nil” (Constitutional Drafting Committee, 2019). Herein lies a critical problem: the draft Constitution Eighteenth Amendment Bill would have little to no clarity about the scope of EWC implementation. The necessary national legislation would take place in the form of a new expropriation bill to replace the current Expropriation Act No. 63 of 1975, which is still the current South African legal guideline for expropriation matters despite its pre- constitutionality and obsolescence. In the 25 years of the Republic of South Africa, Parliament has never been able to pass legislation replacing the Expropriation Act of 1975. Another critical issue is that it is not clear how large a majority is required for the National Assembly to pass the draft Constitution Eighteenth Amendment Bill. Section 74(1) of the Constitution states that the National Assembly must achieve at least a 75% majority to amend Section 1 of the Constitution. Section 74(2) of the Constitution dictates that the National Assembly must reach a two-thirds majority vote in order to pass a Constitutional amendment with the exception of Section 1 of the Constitution (Constitution, 1996). Paul Hoffman, Director of Accountability Now, has pointed to Section 74(1) in order to argue that an EWC amendment actually should require a 75% vote (Cameron, 2019). Hoffman has argued that almost any EWC amendment the National Assembly drafts will affect Section (1)(c) of the Constitution, which states that the “The Republic of South Africa is one, sovereign, democratic state founded on the following values: the Supremacy of the Constitution and the Rule of Law” (Constitution, 1996). Given the controversial nature of the amendment, President Ramaphosa would be well advised to ask the Constitutional Court to ascertain whether a two-thirds or three-fourths majority is required to pass the bill. Pros of EWC There are some economic advantages to EWC if the government allows it in limited circumstances. The expropriation of non-utilized state-owned land without compensationwould allow for that expropriated