Land Court Bill goes against the founding values of the Constitution – IRR – POLITICS | Policyweb
Land Tribunal Bill Goes Against Founding Constitutional Values - IRR
Gabriel Crouse |
March 01, 2022
Institute says bill will be used to help deprive all South Africans of property rights they already enjoy
A fundamentally flawed bill goes against the founding values of the Constitution – IRR
March 1, 2022
The Land Court Bill runs counter to the founding values of the Constitution, and its ideological premise that private property rights are the problem and state property the solution is fatally flawed.
These key points are at the heart of the oral presentation made today by IRR Policy Research Manager Anthea Jeffery to the Justice and Corrections Portfolio Committee.
Jeffery will argue that instead of being signed into law, the Land Court Bill should be dropped.
One of the main purposes of the Land Tribunals Bill is undoubtedly to facilitate the award of “zero” – or otherwise insufficient – compensation under the Expropriation Bill 2020, currently also before Parliament. The Land Courts Bill will achieve this by removing the jurisdiction of ordinary courts to decide on “just and equitable” compensation guaranteed by Section 25 of the Constitution.
Instead, the Land Court will have exclusive jurisdiction to adjudicate many land disputes, including (once the Expropriation Bill is enacted) compensation due in the event of land expropriation. Appeals from its decisions will have to be taken to a new Court of Land Appeals, rather than to the existing Supreme Court of Appeals. Direct appeals to the Constitutional Court may be excluded by law.
Under the Bill, the Land Court will have the ability to circumvent the normal rules of evidence, appoint land activists as assessors, and give those assessors the power to overrule presiding judges on all questions of fact – including whether the conditions for “nil” compensation under the Expropriation Bill have been met.
The Land Court Bill will be used to help strip all South Africans – including the 8.8 million black people who own homes and the thousands more who have purchased 6 million hectares of rural and urban land since 1991 – the property rights they already enjoy.
The Land Court Bill and the Expropriation Bill assume that the cost of land acquisition is the main reason for land reform failures. However, the government’s High Level Panel on Assessing Key Legislation and Accelerating Fundamental Change rejected this view.
In its 2017 report, the Panel identified the main obstacles to successful land reform as inefficiency, corruption and elite capture. No less important was the government’s determination to confine the beneficiaries of land reform to leasehold rather than freehold: to give them “access” to land, rather than ownership of it.
The importance of property rights is further confirmed by the “Index of Economic Freedom” compiled by the Fraser Institute, a Canadian think tank. Fraser Institute research shows that the countries most successful in upholding private property rights and limiting state power are the “freest” in an economic sense. They are also by far the most successful.
In 2019, for example, countries in the top quartile for economic freedom had an average GDP per capita of $50,600, compared to $5,900 for countries in the bottom quartile (measured in constant PPP US dollars).
Furthermore, the average income of the poorest 10% in the top quartile countries was around $14,400, while the poorest 10% in the bottom quartile had an average income of only $1,500. Furthermore, for countries in the top quartile, only 1% of the population lived in extreme poverty (on less than USD 1.90 a day), compared to 34% in the bottom quartile.
Posted by Gabriel Crouse, IRR Campaigns Manager, March 1, 2022