BLF’s written submission to parly on review of land clause of constitution – June 2018

The Chairpersons
Hon. LP Nzimande MP
Hon. VG Smith MP
Constitutional Review Committee

C/o: Ms Pat Jayiya
Email [email protected]

BLF SUBMISSIONS TO THE CONSTITUTIONAL REVIEW COMMITTEE ON THE REVIEW OF SECTION 25 OF THE CONSTITUTION

INTRODUCTION

1. I am Andile Mngxitama, the President of Black First Land First (BLF), and I am duly authorised to represent BLF regarding all matters relating to the subject matter of these submissions.

2. BLF is a Black Consciousness, Pan Afrikanist movement which embraces a Sankarist leadership ethos. It was born through its revolutionary call on 13 August 2015 and was launched on 14 May 2016.  It is registered with the Independent Electoral Commission as a political party and is situated at Office 602, Renaissance Building, corner of Main and Elloff Streets, Gandhi Square, Johannesburg.

3. The strategic objective of BLF is the complete destruction of white supremacy and the installation of a system that responds to the total needs of the people. To this end BLF recognizes that the main contradiction is white supremacy which needs black solidarity for it to be destroyed.
Introduction.

4. The resolution of the land question is central to the realization of the black liberation project. These submissions intimate that the only solution is for our people to organise and take back the land by any means necessary without paying for it.

WHOSE LAND ANYWAY?

5. All of the South African land in white hands was stolen from black people. Therefore, all white people who hold land are in possession of stolen property. Justice will only prevail once the land which was stolen from the black majority is returned. However, thieves are not known to be generous people who voluntarily return stolen goods. This places the responsibility of redress and justice on the shoulders of the dispossessed. The battle for land by any means necessary is not only a battle for an important economic commodity (land amounts to more than just its economic value), it’s also about who we are and about those who perished in the many brutal colonial wars in defense of the land. Land return shall heal black people!

WHO MUST FIGHT FOR THIS LAND?

6. It is the sacred duty of all black people to fight for the return of the land. It’s the duty of parents to teach their children about land dispossession and the covenant with our heroines and heroes that we shall fight until the land is returned. It’s the duty of revolutionary teachers to spread the truth that without land we are nothing! Any people that lose their land lose their national sovereignty, their sense of being and their dignity. Right now blacks are a people without roots – landless and floating in the air. The majority of black people live in townships and as sophisticated squatters in the cities where they rent places of impermanent abode from whites who stole the land and wealth.

7. Land is pivotal for black people. The great warrior against British land theft, Prince Maqoma, expressed this truth more succinctly when he said, “(w)e are to have land again….Our land is us. We are our land. You took our land …. Without land we cannot be.” This has been the truth that the principled leaders of the African people have maintained. The land belongs to black people! It was taken illegally from us.

8. In 1955 in Kliptown, the ANC, which became the ruling party in 1994, sold the land rights of blacks to whites with the adoption of the Freedom Charter. The Freedom Charter proclaims that “South Africa belongs to all who live in it both black and white”. How could this be true? Who gave the land rights to whites? Since when did whites stop being settlers and foreigners? How can the country be equally shared amongst the oppressed and the oppressor? Where on earth has this ever been practiced? The Freedom Charter was correctly seen by Robert Sobukwe as “a colossal fraud ever perpetrated upon the oppressed, exploited and degraded people. It clearly bears the stamp of its origin. It is a product of the slave colonial mentality and colonialist orientation”.

9. Maqoma and Sobukwe’s position was endorsed by Steve Biko, who put it squarely that, “(a)bove all, we Black people should keep in mind that South Africa is our country. The arrogance that makes the whites to travel all the way from Europe to come and balkanise our country and shift us around must be destroyed … whereas whites were guests to us on arrival in this country, they have now pushed us to 13% of the land and are acting as bad hosts in the rest of the country. This must be put right”.

10. After more than 350 years of land dispossession and more than 24 years of cowardice by the ruling party, the message of land return has to be clear and uncompromising again. We want our land back simply because it’s ours! What we shall do with it is none of the business of the land thieves and their apologists. Right now only 35 000 white families, including businesses, own up to 80% of the land in SA. We note new pseudo-revolutionary movements have adopted the Freedom Charter and gone ahead and given land rights to whites so long as such land is “in use”. These agents of white supremacy have yet again surrendered the land of African people to the settlers.

11. Black First Land First calls upon the landless to take all necessary steps to reclaim their land without paying for it. The return of the land must be guided by the principle of “by any means necessary”. What must be resisted is “any means” to buy back the land. All the land must be returned without paying a cent. The organising principle of the land revolution is that land in white hands is stolen property and it should therefore be returned to black people. After all, ityala aliboli (a crime/case doesn’t rot away)! From this point of view, the foundations of the South African constitution are anti-black because it gives legitimacy to colonial land theft. The SA Constitution is a document of surrender, not liberation.

Section 25

12. The key section in the constitution that defines state policy on land is Section 25.

13. What is Section 25 of the South African Constitution? Also, what does it serve? These are crucial considerations in this context.

14. Section 25 of the constitution is in fact the clause that turns the 1994 political compromise into a constitutional imperative. It is correctly known as the property clause.

15. What were the terms of the compromise?  It was basically that in exchange for political power being handed to black people, land and the economy shall remain in the hands of the white minority settler population. Section 25 legalises land theft and legitimises colonialism. Those who negotiated this compromise at the time said that it was a “tactical” move to gain power without too much bloodshed. The logic was that after power was secured the land would be returned. This section therefore was never about redistributing land but rather about securing a political compromise. More than twenty four years into democracy, we know that the compromise has been very bad for black people. This section has rendered our people landless in their own land.

16. Section 25 in its entirety is a yoke around the necks and shackles on the feet and hands of our people. It makes us slaves in our own land.

17. The argument of how bad section 25 has been for our people is substantiated by evidence. This is the evidence in the past 24 years to show the negative impact of section 25:

a. 35 000 white families own 80% of the land. It will take us 100 years to redistribute only about 30% of the land.
b. Only about 8% of the land has been bought since 1994. We spent more than R50 billion buying stolen land!
c. Blacks own only about 3% of the Johannesburg Stock Exchange (JSE).
d. Blacks control only 5% of the Asset Management Industry.
e. Of the top 50 mining companies, only 4% is black owned.
f. Between 1994-2004 a million farm workers were already evicted from land (this trend continues).
g. Government has abandoned all targets for land redistributon (the 30% target has been abandoned). Government dumped this modest target as it was impossible to reach due primarily to the limitations of the property clause.
h. 50% of the population (black people) live under the poverty line.
i. Anti black racism is rife (colonial power relations have not changed)

18. How do we turn this situation around? There is a need to have the courage to admit the first truth: that South Africa, all of it belongs to Black people; that the land question arises out of the arrival in 1652 of the white settler colonial population, and; that all land in South Africa is stolen property.

SOUTH AFRICAN LAND POLICY PERPETUATES ILLEGALITY

19. The land reform policy of South Africa since 1994 has been the perpetuation of illegality. If you buy stolen property you are as guilty as the thief that sells you stolen goods. In other words, each time government pays white farmers for land, it is involved in a criminal activity. We demand the removal of  the whole of section 25 and replace it with something more agreeable to the needs of our people so as to address the historical injustice of land theft.

20. Section 25 of the Constitution gives with one hand and takes with the other. It says two things at the same time – it protects colonial property relations and at the same time it approves land redistribution. This section plays finder- finder with our people.

21. We have shown what the section was crafted for – political compromise!  We cannot try to make it do what it was never intended to do. The section effectively blocks land redistribution and distorts history.

NO WE WON’T PAY FOR OUR LAND!

22. The real stumbling block of land redistribution to black people in South Africa is the idea of paying for stolen property.

23. The Expropriation Bill  [2015] claims to amend section 25 of the Constitution.  The Expropriation Bill unfortunately does not address this fundamental question. In fact it perpetuates the evil idea of paying for land. But now there is an opportunity to correct this injustice.

24.The key question that renders Section 25 a clause that legitimises land theft is the provision of “just and equitable compensation”, in all instances of land expropriation. Case law shows that in each case of expropriation, market related compensation is to be paid. See the case of
Uys & another v Msiza & others (1222/2016) [2017] ZASCA 130 (29 September 2017) – the Msiza case.

25. At least four matters related to land and compensation has already been decided by the highest courts of the land and Presided over by some of the most “progressive” Judges like Moseneke and the Land Claims Court acting Judge Tembeke Ngcukaitobi.

WHAT IS JUST AND EQUITABLE COMPENSATION?

26. The whole argument on paying for stolen property turns on the phrase “just and equitable compensation”. Defenders of the status qou sell the lie that the Constitution as it stands makes land expropriation without compensation possible. There is no truth to this back hand defence of land theft. As indicated above, the full bench of the Appellate Division has now settled the matter. It overtuned the mild decision of Ngcukaitobi in the Msiza matter and in fact decided that the market value be paid to land thieves. This decision was made in September 2017, and according to information at our disposal no one is challenging it. A precedent has accordingly been set.

27. To be truthful to the demand for land expropriation without compensation, a criteria that clarifies the meaning of “just and equitable compensation” so as to ensure no exchange of monetary compensation to land thieves, is important.

28. The Committee must be aware of at least four instances where the courts have dealt with compensation to see the leanings of the Judges in interpreting “just and equitable” compensation, namely:

– Firstly,  Judge Geldenhys in the Land Claims Court tried to give interpretation to the clause “just and equitable compensation”. To this end he came to some complicated calculation that claims to take into consideration the same long list of considerations repeated in the Expropriation Bill. He however did not solve the problem. At best the Geldenhys Jugdment has left the legal system with “two states” evaluation to arrive at a fair compensation.

–  Secondly, the former Head of the Constitutional Court, Deputy Chief Justice (DCJ) Dikgang Moseneke, has decided to rely on “inflation” to calculate compensation for those who have lost property and who are beneficiaries of the restitution process. DCJ Moseneke’s determination is open to the accusation of racism because white land owners are never confronted with valuation of their property based on the Consumer Price Index (CPI). It is an established principle that property is not evaluated on the CPI. So, what then was the thinking behind this weird logic?

– Thirdly,  firm indication that the phrase “just and equitable compensation” (within the current framework) would  mean  “market value” was expressed in the Zimbabwean land expropriation matter, which was first decided by the SADC Tribunal and then ultimately decided by the South African Constitutional Court. In this case DCJ Moseneke led the bench in concluding that compensation must be paid whenever there is expropriation. This led to a judgement which effectively foreclosed the property of the Zimbabwean state so as to pay compensation to the white farmer who lost property in Zimbabwe.

– Fourthly, the Msiza matter was heard at the Land Claims Court by Acting Judge Tembeka Ngcukaitobi, who applied the two tier method elaborated by Geldenhys. Ngcukaitobi managed to take off only R300 000, form the market valuation of R3.8 million. Even this modest adjustment has been rejected by the full bench when it overturned Ngcukaitobi and instead ruled for the full market value to be paid to beneficiaries of land dispossession.

29. The Committee therefore, can not leave the landless at the mercy of the courts.

30. The CRC must locate the land question in history and in the logic of land theft so that land expropriation is undertaken within a framework that would ensure decolonization and redress.

31. It is doubful if this Constitutional Review Committee (CRC), will have the courage to confront history and redress the injustices of the past.

BLF’S ANTI RACISM BILL OF 2017 AND ITS RELEVANCE FOR LAND REFORM

32. On 31 January 2017 BLF submitted the Anti-Racism Bill of 2017 – which is its response to the “Prevention and Combating of Hate Crimes and Hate Speech Bill” published in the Government Gazette (No 40367) on 24 October 2016 (“Hate Crimes Bill”) – to the Department of Justice and Constitutional Development. It is for consideration ultimately by the National Assembly and the people of South Africa. We pointed out amongst other things that:

33. We pointed out in the BLF Anti-Racism Bill of 2017 that the guiding principles to ending racism are as follows:

“a. Land return as the pre-condition towards ending racism.

b. Blacks can’t be racist.

c. Anti-racism struggle to be led by blacks only”.

34. The first principle of “Land return as the pre-condition towards ending racism” which has already been elaborated on above, provides further that:

” … South Africa belongs to black people; that the land question arises out of the arrival in 1652 of the white settler colonial population, and; that all land in South Africa is stolen property. To this end racism arises from and is built on colonial land theft.”.

35. In terms of the second principle of “Blacks can’t be racist” the definitions of the terms blacks, racism and racist as indicated in the Anti-Racism Bill of 2017 are instructive. Also significant are the following provisions of the said Bill:

“Black people are not responsible for imposing racial prejudice and racism and to this end are not beneficiaries of racism. The struggles of blacks to reclaim stolen land, to end oppression, exploitation and systematic dehumanisation as a response to white supremacy, is not racist but on the contrary a quest to end racism.

The black struggle to obliterate white supremacy is a struggle for the truth, real justice and freedom to self-determination. Consequently, blacks can’t be racist for seeking restoration of their land and property as well as human dignity. Blacks can’t be criminalized for retaliating against the ills of white supremacy and when faced with racist oppression and deception. It is right for blacks to resist being patronized into complicity by white privilege which thrives on dispossession and exploitation – lest giving whites space to continue to prescribe to blacks how to respond to the individual or combined ills of racism that colonialist, apartheid and now neo-liberal and neo colonial regimes have legitimized. To this end; these regimes have in addition to legitimizing injustices, maintained the protection of white privilege and its ill-gotten gains. Blacks are not the architects nor are they the beneficiaries of the racism. Blacks can’t therefore be racist for standing up against racism.”

36. The third principle that the “Anti-racism struggle (is) to be led by blacks only” pointedly indicates that:

“South Africa (SA) is a white supremacist, anti black, racist, patriarchal, capitalist country. It therefore makes sense for blacks to organize themselves around their blackness – on their own terms and free of white supervision – while prohibiting the inclusion in the black struggle of the forces who continue to perpetuate black suffering. It makes no sense and is actually self-defeating for blacks who are victims of racism to put their trust in the perpetrators of racism to struggle to end racism. The presence of whites in black spaces of struggle leads to the dilution of the black liberation project as well as black silence and subsequent erasure. Steve Biko’s call to reject fragmentation of black resistance so as to maintain black solidarity is accordingly instructive”.

OTHER APPLICABLE PROVISIONS OF THE BLF ANTI RACISM BILL OF 2017

37. Chapter 3 of the BLF Anti Racism Bill deals with prohibitions regarding two categories:

– actions by public servants
– actions by private institutions

38. Without land we can’t have wealth, employment, access and ownership of the minerals below the land and everything on it.   These prohibitory actions will be canvassed below in so far as they relate the provision of land and public service regarding land.

39. The following racist or discriminatory actions by public servants, which also relates to the subject matter of these submissions (being land reform), shall be penalized:

– “[u]nequal housing provisions
– “[u]nequal services in terms of quality and frequency between townships and suburbs”
– denying of land return to blacks without compensation;
– denying adequate health care;
– denial of public service(s);
– denying adequate housing,
– denying clean running water,
– denying electricity and sanitation,
– denying adequate land, and
– denying a living wage and basic income.

40. The Bill also provides that the internal regulations of Public Agencies must serve to prohibit the above actions. Also these agencies “must accept complaints about such acts and refer those employees who are criminally culpable for prosecution”.

41. The following racist or discriminatory actions by private institutions which here too relates to the topic of the current submissions (being land reform), shall be penalized:

– denying occupational safety

– denying a living wage and basic income

– denigrating (offensive, contemptuous) actions

42. The internal regulations of private institutions must serve to prohibit the above actions.
Also these agencies “must refer those employees who are criminally culpable for prosecution.”

43. The issue of entry to establishments and other spaces serving the public is also applicable to the topic of land reform. To this end the BLF Anti Racism Bill indicates that discrimination that amounts to the denial of the right of entry of any person or entity to a space meant to serve the public is prohibited. Also this norm shall be enforced by the municipalities.

44. Other provisions of the BLF Anti Racism Bill that are also applicable to the question of land reform relates to Public Education, Anti Racism Courts, Anti Racism Barometer, and Reparations. To this end the following is important:

a. On Public Education

The said Bill provides as follows:

“Ending racism requires multiple points of engagements. In the main it is land redress that shall curb the power of white supremacy. However, there is also the urgent need to re-educate society so as to establish an anti-racist ethos and behavior”.

The Bill further provides for anti-racism education in the schools from primary to tertiary level education.

b. On Anti Racism Courts

Provision is made in the Bill for the establishment of special anti racism courts.

c. On Anti Racism Barometer

The Bill provides as follows:

“A special Annual Anti Racism Barometer, which reports acts of racism and the measures taken to address them, is provided for in the BLF Anti Racism Bill. The Barometer shall be the function of an Anti Racism Council – which is an equivalent of a Chapter 9 Institution – with the specific responsibility of intervening and monitoring acts of racism and reporting to Parliament on an annual basis”

d. On Reparations

A reparations process is provided for in the BLF Anti Racism Bill. To this end the said process shall address the historical and contemporary injustices suffered by black people. Also the process shall be led by the Anti Racism Council. The reparations process shall strive “to measure the extent of black loss as a result of colonialism focusing on land, labour and the destruction of the African way of life”. Furthermore, “the process shall seek to measure the benefits accrued to the settler population resulting from colonialism and apartheid, as expressions of historical points of the oppression of black people”.

WHAT DO WE AS BLF PROPOSE REGARDING SECTION 25 OF THE CONSTITUTION?

45. “CHAPTER 2” of the BLF Anti Racism Bill makes the following provisions relating to the amendment of the SA Constitution and the new Land Clause, so as to realize land return without compensation to the black majority:

“2. Repeal of Section 25 of the Constitution and the new land clause

2.1 Section 25 of the Constitution shall be repealed in its entirety and the following shall be used instead:

a.  All the land held by whites in South Africa is stolen property.

b.  The primary purpose of the redistribution of land to the black majority is for historical redress.

c. All black people have a right to land in South Africa without any payment.

d. The eviction of farm workers and poor people from land is illegal (in this regard there must be an end to the strange distinction between legal and illegal evictions)

e. A new department, which shall be called the Department of Land Redistribution, must be established. It’s sole mandate shall be the redistribution of land. (Right now South Africa does not have a department that solely focuses on land redistribution).

f. A process must be outlined where land ceilings shall be effected in accordance with the soil capacity of each of the regions and provinces.

h. The value of mortgage bonds must be adjusted to a value that excludes land in determining housing price because land must be offered to all for free.

i. Land occupation by the landless is lawful”.

46. A further point that should be added is:

“j. That constitutionally determined targets be set and the responsible Minister be held accountable. To this end we propose that in the next five years 80% of the total land be redistributed to black people”.

CAN THESE PROPOSALS REGARDING THE AMENDMENT TO SECTION 25 OF THE CONSTITUTION BE REALISED AND ARE THEY WITHIN THE PRISM OF THE LAW?

47. The answer in both instances is yes! Amending the Constitution is a legal exercise. All you need is a 2/3rds majority which the National Assembly already has, as per the motion that set in place this process.

48. We appeal to the CRC to be brave and to give this nation the long awaited justice. The decision is in your hands: to continue with colonialism and landlessness or to be bold and end the suffering of our people.

49. We urge the CRC to recommend that the existing Expropriation Bill be brought in line with the motion to Expropriate Land Without Compensation.

FURTHER MATTERS FOR CONSIDERATION

50. The following additional matters need consideration:

a. The CRC has to ensure the actual amendment of the Constitution before the 2019 elections.

b. What is the meaning of the reactionary discourse, namely  “[u]nused land, unproductive land; vacant land”, by the sponsors of the “Land Expropriation Without Compensation” motion?

c. The objective of “Land Expropriation Without Compensation”, is NOT to dispossess black people further such as is threatened with the Ingonyama Trust. Land in the hands of blacks must be excluded from expropriation.

d. Land belongs to the people – the state and traditional authorities are merely holding the land in trust for the people.

e. Once the draft Bill for expropriation is introduced, would it require another round of “public participation”? Clarity is needed.

WE HAVE BEEN DUPED BY THE EFF’s MOTION ON LEWC

51. It takes 410 days from the introduction to commencement of a Bill. The introduction of the bill itself is generally not in its final form. It goes through a process of “public consultation, line by line scrutiny and consideration by both the National Assembly and National Council of Provinces, resulting in amendments”. Furthermore, the time it takes to go through the required stages is dependent inter alia on “the length of the Bill, its importance, costing, complexity and how controversial it is”.

52. To this end the Protection of State Information Bill, because of its controversy resulted in Parliament taking 1344 days to pass it into law. However a bill can be fast tracked. In this context a Bill which is urgent or introduced as a result of a crisis “may be passed in a matter of days”. To this end as pointed out by the Parliamentary Monitoring Group (PMG) on its website, the “National Assembly and the NCOP amended the Sexual Offences Act in three days (in 2012) in response to a Western Cape High Court ruling which deemed some sections of the Act unconstitutional”.

53. The signing of the Bill by the President into law is not automatic. In this regard he “has the opportunity to assess the constitutionality of a bill and can refer it back to Parliament for reconsideration if he has any reservations”. Also “[w]hen exercising this right, the President seeks counsel and considers submissions and petitions made to him” and this sometimes “includes listening to concerns from beyond the country such as foreign governments and international bodies”.

54. Once a bill is signed it is triggered into force but it generally “takes some time for it to come into operation”. Moreover, “most provisions in an Act will either come into operation within a set period after assent or at a time fixed by the government” which in turn “gives the government and those stakeholders who are directly affected by the Act time to plan accordingly”. In some instances “an Act may require certain actions to be taken by the Department” prior to it being implemented. In this context, for example, “subordinate legislation (regulations, determinations, rules) may have to be prepared, approved and gazetted”.

55. Here’s an historical account of the time periods involved with some of the Bills:

Shortest time: introduction to commencement

“21 days: Special Adjustments Appropriation Bill 2007

27 days: Criminal Law (Sexual Offences and Related Matters Amendment Act Amendment Bill 2012

30 days: Regulation of Interception of Communications-Related Information Amendment Bill 2010”

Longest time: introduction and commencement

2812 days: Immigration Amendment Bill 2006

2227 days: Mineral and Petroleum Resource Development Amendment Bill 2007

2094 days: Firearms Control Amendment Bill 2006

56. The recent parliamentary motion by the EFF for Land Expropriation without Compensation (LEWC) which was passed in the National Assembly on 27 February 2018 with the majority vote of the ANC and which referred the issue for review to the Constitutional Review Committee is an event that is located at the very beginning of the above process. Hence it will take at least 410 days before the Bill is enacted for commencement. This effectively takes commencement of the Bill beyond the date of the 2019 General Elections.

57. Moreover both the ANC’s and EFF’s post parliamentary motion clarifications can be summed up in the declaration by EFF leader Julius Malema in allying white fears. To this end Malema says that all land must be expropriated by the state, no-one will own any land – everyone will be allocated land for use. Land from those who are farming and using land productively must not be taken from them. So basically all land (which is all productive land) in the hands of whites must remain in white hands. This further suggests that while ownership of all land will vest in the state, the use and enjoyment patterns will remain in favour of whites. What this effectively means is that for whites to lose ownership of land makes no difference – they will still dominate and hence have hegemony of this means of production by virtue of their use and enjoyment thereof. Ownership by the state is accordingly a fiction!

58. All this suggests that the EFF, ANC and others who adopted the LEWC motion, have no intention of fast tracking the process – including setting aside the current adopted motion on LEWC and finalising in its place the Expropriation Bill that President Zuma returned to the National Assembly in 2016 for further action. The referred Expropriation Bill can be finalised in two months as opposed to the current motion which if realized into a bill will take at least 410 days for commencement.

59. Furthermore those adopting the motion acted in bad faith knowing full well that:

– the content of the motion does not mean return all land to the black majority without compensation. It means blacks will get reject unproductive land while whites retain all the productive land; and

– the time it will take for the adopted motion to be processed into a Bill and then passed into law will take us well beyond the 2019 General Elections by which time blacks would have already been duped into voting them back into power and it will be too late to reverse their votes.

60. In all of the above circumstances it is clear that there will be no actual LEWC via the motion referred to the Constitutional Review Committee for review – note review doesn’t mean amendment.

LAND EXPROPRIATION WITHOUT COMPENSATION IS NOT HAPPENING VIA PARLIAMENT

61. BLF had warned the landless people of South Africa (SA) against the parliamentary fraud on land. The mainstream media has greatly assisted politicians to advance the lie that LEWC will be achieved any time soon. The truth as pointed out above is that the Constitution won’t be amended before the 2019 general elections. Politicians are playing political games for votes.

62. The Committee tasked with “reviewing” section 25 of the Constitution has explained its mandate. The Committee says it will call for “public participation” from May 8th, 2018 starting in the Limpopo Province. The hearings are to gauge the “necessity” and “mechanism” for LEWC. In other words, the Committee will not be putting amendments before parliament in August this year but will be submitting recommendations from the “public hearings”.

63. The landless have been lied to. The whole parliamentary motion was a stunt to garner support in the 2019 elections – it was not for land return without payment. It was an act of propaganda to deceive our people into thinking that an agreement has been reached to amend the Constitution. Now the Committee is going back to seek the opinions of the public on a matter where national consensus has long been achieved. This is a delaying tactic.

64. BLF wishes to remind the landless majority again that there has already been public hearings on land expropriation – hence a Bill to this effect is with the Public Works Portfolio Committee in parliament. To reiterate,  all that was needed was to amend that Bill so as to bring it in line with the proposed constitutional amendments and if necessary test the enhanced Bill via public hearings. This would have ensured that the Constitution is amended before the 2019 elections.

65. BLF calls on our people to make it clear to all the political parties in parliament that if no amendment of section 25 of the Constitution is realized before the 2019 elections, then they will not vote for liars. Lets stop politicians from lying and making empty promises.

66. Land expropriation without compensation NOW – is possible! BLF won’t wait for parliament and liars. We shall continue with people-driven LEWC. The land is ours!

Land or death!

Submitted 15 June 2018 by:

Black First Land First President, Andile Mngxitama

Contact Details:

Black First Land First Email: [email protected]

See the oral submission of BLF on this subject delivered by BLF President, Andile Mngxitama, to the Constitutional Review Committee on 05 September 2018 in Cape Town here

Land without expropriation fraud – BLF oral submission to parly on September 5, 2018

Land without expropriation fraud – BLF oral submission to parly on September 5, 2018

The following is the oral submission of Black First Land First (BLF) on the review of section 25 of the South African constitution delivered by its President, Andile Mngxitama, to the Constitutional Review Committee on 05 September 2018 in Cape Town:

This submission is limited to highlights of the written comprehensive submission made by Black First Land First  (BLF) to this committee.  For clarity, the presentation is divided into three segments: what’s the problem? what are we proposing as solutions? and why we say that this process is the biggest fraud since the CODESA sell-out.BLF supports the call to amend section 25 of the constitution so as to the ensure that ALL the land is returned to the people without paying the land thieves a cent.

Who must own the land?

The land is not a commodity expressed in title deeds nor does it belong to the state. The land belongs to black people!

This committee must reject the notion that the Constitution as it stands allows for land expropriation without compensation. Its a terrible lie told by opponents of land expropriation.

There are four important court decisions including one as recent as last September where  the Appeal Court overtuned a mild decision of the Acting Judge Tembeka Ngqukaotobi. The court insisted that the starting point of just and equitable compensation starting is market value.

The problem

National consensus has long been reached that land must be returned to its rightful owners. This consensus is already in the very foundation of the problem. The problem is the theft of black people’s land by white people who arrived here in 1652.

The consensus is both historical and contemporary. After the fall of the Bambatha rebellion and in the short six years thereafter the African Natives National Congress was founded to fight for land. Another sixty years or so saw the formation of the Pan Afrikanist Congress to resolve the land question followed by Biko’s emergence for the same reason with his black consciousness.

1994 didn’t correct the injustice of land theft!

The 24 years of ANC rule has left the problem unanswered. As we speak in a country of 58 million people, only about 35 000 whites own close to 80% of the land. Just about 8% has been bought back since 1994.

Our people on farms are slaves who are abused and even murderered without any consequences.

We are called baboons and worse because we are vulnerable as a consequence of landlessness. Racism and poverty won’t end until  the land has been returned

SA land policy amounts to  perpetuation of a crime

The land reform policy of South Africa since 1994 has amounted to the perpetuation of illegality. If you buy stolen property, you are as guilty as the thief that sells you stolen goods.

BLF proposals

1. Remove the whole of section 25 of the Constitution.

2. Replace section 25 of the constitution with the following:

a. All the land held by whites in South Africa is stolen property.

b. All black people have a right to land in South Africa without any payment.

c. The eviction of farm workers and poor people from land is illegal (we are saying the constitution must make it illegal for whites to evict us)

3. Land occupation by the landless blacks must be made lawful.

4. We reject the notion of “unused land, vacant land, unproductive land”.  All the land, in particular the productive land which is now in the hands of whites, must be returned

5. This Committee has to ensure that the actual amendment of the Constitution is realised before the 2019 elections.

6. “Land Expropriation Without Compensation”, means taking land from whites and giving it to blacks (the victims of crime). Land in the hands of blacks must be excluded from expropriation (hands off the Ingonyama Trust!)

7. Declare any economic activities calculated to subvert the land return program as treason.

8. If the constitution is not amended before the next elections then both the ANC and the EFF are sell-out organisations that defend land thieves!

This is a political fraud 

This process is the biggest political fraud since the CODESA SELL OUT!

There will be no amendment to the constitution before the 2019 elections.

This process is part of a scheme to deceive the people for their votes.

Why is the EFF and ANC sending you to ask us to justify why we must get back our land?

Julius Malema and Cyril Ramaphosa you are urged to serve the interests of the people – we say their lands must be expropriated.

This committee is being used to legitimise this colossal  fraud. There are issues that the committee must clarify or risk being seen as part of the fraud, namely:

1. There was no need for the current so called “public participation”.  Together the ANC and EFF have the two thirds majority to have introduced a Bill or improved on the withdrawn Expropriation Bill.

2. After your recommendations, if the parties still want land expropriation parliament will introduce a new bill.

3. Another round of “public participation” as per the constitution will have to be undertaken. This waste of time is deliberate. Again we ask, why didn’t the parties just use their majority to amend the constitution?

4. These delays are deliberate and are meant to give land thieves like AfriForum enough room to sabotage the whole process through economic terrorism. Moreover, Donald Trump, the father of Afriforum, is breathing down our necks and the recession is step one of the economic terrorism.

5. The EFF and ANC have the two thirds, why the delays?

5. If parliament doesn’t amend the constitution before December 2018, then BLF will lead the peoples Land Expropriation Without Compensation, starting with Johan Rupert’s farms.

6. If parliament was to amend the constitution before the 2019 elections I will personally come and apologise to each of you, and i will shave my beard and hair. But until then, you are all part of a fraud to delay land expropriation without compensation.

izwelethu!

See BLF’s written submission made to parly on review of land clause of constitution on 15 June 2018 here.

The Land and all in it are ours!

BLACK FIRST LAND FIRST (BLF) SUBMISSIONS TO THE SELECT COMMITTEE ON LAND AND MINERAL RESOURCES ON THE MINERAL AND PETROLEUM RESOURCES DEVELOPMENT AMENDMENT BILL [B15D-2013]

Who are we?

1. Black First Land First (BLF) is a Pan Afrikanist and Black Consciousness Revolutionary organisation registered with the Independent Electoral Commission. BLF holds that the primary contradiction in South Africa was created in 1652 with the arrival of the settler colonialists from Europe. This contradiction today is White
Supremacy which in the economic sphere manifests as White Monopoly Capital. The organising logic of White Supremacy is land theft.

2. Notice of “Invitation for Written Comments on the Mineral and Petroleum Resources Development Amendment Bill [B15D-2013]” which is published on the parliament website (https://www.parliament.gov.za/committee-notice-details/12)
bears reference.

Land and justice

3. The resolution of the question of “Mineral and Petroleum Resources Development” is dependent on the resolution of the land question which in turn is central to the realization of black liberation. The necessary precondition to this end is to ensure that the land is returned by any means necessary without paying for it. Without land there is no freedom or dignity. Land is the basis of the freedom, identity, spiritual well-being, economic development and culture of black people.

4. The call for land expropriation without compensation made by President Zuma is a critically important step in the right direction and the committee has to adopt this as the primary principle to realise the transformation of the minerals and petroleum sector. We can’t talk about minerals and petroleum without addressing the land
question first.

5. All of the land in South African in white hands was stolen from black people. Therefore, all white people who hold land including, in this case, the mines are in possession of stolen property. This stolen land includes all of its endowments on its surface, together with all the fortunes underground as well as the sky – all of it belongs to black people.

6. Justice will only prevail once the stolen land is returned to the black majority. Since thieves are not known to be generous people who voluntarily return stolen goods, this places the responsibility of redress and justice on the shoulders of the dispossessed. The battle for land by any means necessary is not only a battle for an important economic commodity (land amounts to more than just its economic value), it’s also about who we are and about those who perished in the many brutal colonial wars in defense of the land. Land return shall heal black people!

Nationalisation and socialization of the mineral and natural resources

7. On the subject matter of the Mineral and Petroleum Resources Development Amendment Bill [B15D-2013], BLF calls for the nationalisation and socialization of the mineral and natural resources. This in turn entails the democratization of the economy through nationalizing 100% of its commanding heights.

8. Ownership, control and management of all mineral wealth shall translate into direct ownership by the people and state protection of people’s rights.

What is to be done?

Broad based meaningful economic empowerment

9. In line with achieving the main goals of ensuring the radical transformation of the economy, eradicating poverty, creating jobs and other means of livelihood, maintaining macroeconomic stability and developing, enhancing and sustaining the economy’s capacity to produce goods and services – ideological guidelines and policy to inform the achievement of these goals must be devised and implemented.

10. To this end the issue of Mineral and Petroleum Resources Development shall focus on Broad Based Meaningful Economic Empowerment to ensure that the majority of South Africans are integrated, through the State, into the mainstream economy and that the people become drivers and beneficiaries of the economic activities in the country.

11. More specifically, ideological guidelines and policy must be devised to elaborate on inter alia the following as a means to achieve Broad Based Meaningful Economic Empowerment:

a. Community Share Ownership Schemes so as to:

i) counter the culture of the patronizing Corporate Social Responsibility concessionary programs that has traditionally characterised big mining businesses;

ii) secure for the community a proportion (at least 20%) of the equity in the mining businesses;

iii) secure for the community meaningful proportional representation in the official control and management structure of the scheme;

iv) enable communities to benefit from the natural resources of the country, and;

v) reinforce the role of the communities in economic development by enabling them to make the right decisions in terms their empowerment priorities.

b. Worker and State Share Ownership schemes so as to:

i) ensure that workers participate through the medium of having direct equity stake in the mining enterprise they are working in;

ii) secure for the workers a significant proportion (at least 20%) of the equity in the mining enterprises;

iii. secure for the workers meaningful proportional representation in the official control and management structures of schemes;

iv) secure for the workers sufficient all round job satisfaction and stable employment, and;

v) reinforce the role of workers in the development and increase of industrialization for import substitution by enabling them to make the right decisions in terms their empowerment priorities.

c. Direct Equity Participation schemes so as to:

i) ensure black majority shareholding in all strategic economic actions;

ii) ensure all mergers, restructurings, unbundling of business, de-mergers, relinquishment of a controlling interest shall comply with the black majority shareholding requirement, and;

iii) ensure that any direct equity achieved from c (i) and (ii) as well as from the Worker Share Ownership Schemes and Community Share ownership schemes shall serve the sole purpose of ensuring that participation and ownership in the economic activities of the country maintain and perpetuate the total nationalization of the commanding heights of the economy so as to facilitate the rectification of past injustices including poverty eradication and economic growth along black socialist lines.

d) Procurement of goods so as to:

i) facilitate import substitution through supporting the procurement of goods from indigenous South Africans.

ii) ensure that at least 70% of the goods procured by all enterprises should be procured from the indigenous population;

iii) put legislation in place to ensure that commercial contracts are concluded with indigenous entrepreneurs so as to guarantee the development of indigenous businesses, the enhancement of livelihoods and the ultimate growth of the economy of South Africa.

e. National Sovereign Wealth Development Fund so as to:

i) reduce the wide gap between the rich and the poor and ensure economic growth;

ii) filter the income from the nations natural resources towards the rectification of past injustices including poverty eradication and economic growth;

iii) address the finite status of mineral resources by developing secondary industries as alternative bases of development after the mineral resources have been depleted, and;

iv) finance development programs across the country so as to stimulate the growth of the country’s economy.

f. Strategic Sector Specific Frameworks so as to:

i) ensure that the indigenous black majority participates in the various strategic sectors such as mining, education, agriculture, manufacturing, communication, finance, tourism etc so as to facilitate the rectification of past injustices including poverty eradication and economic growth.

Strategic objective

12. The Black Agenda shall devise and recommend Ideological guidelines to elaborate on:

i) the mechanisms to be put in place to ensure that the system of state monopoly capitalism, that Direct Equity Participation schemes will tend to feed into and perpetuate, is made to serve the interests of the whole people so as to cease to be state capitalism;

ii) the need for the reorganization and higher development of industry and to that end its adjustment to the needs of the black majority as a crucial aspect of the realization of economic freedom along socialist lines to replace racial capitalism;

iii) the mechanisms to be put in place to ensure that the above Direct Equity Participation schemes do not serve to create and promote (as a reactionary strategic objective) an indigenous anti-black bourgeoisie coexisting with or replacing the current one, and;

iv) the mechanisms to be put in place to ensure that the above Direct Equity Participation schemes serve to destroy the current anti-black neo colonial economic order and replace it with one that is responsive to people’s needs.

13. BLF notes that the Mineral and Petroleum Resources Development Amendment Bill will vest in the minerals department the power to promote as well as oversee mining. In this context mines can transgress environmental issues with impunity as the minerals department is unlikely to shut them down and give up its income.

14. The amendments would further promote and entrench inequality between the owners of mines and the black majority. To this end it ensures that mining companies would not respond to the environmental and water affairs that are integrally related to mineral affairs. By extension, mining companies would not respond to the needs of black local communities.

On penal provisions

15. The penalties attached to the infringement of environmental laws carry much heavier sentences for offenders than those attached to the infringement of mining laws where the environment is found to have been harmed.

16. To this end, for a first time offender regarding environmental law a fine of R5 million or five years term of imprisonment may be imposed whereas for a first time offender regarding mining legislation, a fine of R100 000 and or a term of two years imprisonment may be imposed. It must be pointed out that both these penal provisions are shockingly lenient.

17. Penalties must equate to 50% of the annual turn over for the guilty party or a term of of imprisonment of 10 years.

Silence on Zama Zamas

18. The Amedment Act is silent on the so called Zama Zama’s. These are the real miners and owners of the land. BLF calls for the legal recognition of the artisanal or small scale miners known as Zama Zamas. These are the real owners of the minerals in our country. They are not a foreign force here to exploit and murder like the British Lonmin Mining which, with the help of the Deputy President Mr
Ramaphosa, conducted the Marikana Massacre. These white owned mines continue to terrorise our people and even murder them.

19. BLF advices that the Amendment Bill incorporates provisions for formal recognition of the Zama Zama miners (decriminalisation). Also that the state and mining houses be tasked with ensuring the safety of the Zama Zama miners. Furthermore, that the state be the official buyer from the Zama Zama miners. This will end the criminality encouraged by WMC which robs the Zama Zama miners through illegal buying of their products.

20. The Amendment Act should include provisions for freeing all currently arrested Zama Zamas and for an annual evaluation of the Artisanal mining sector.

BLF Supports the Mining Charter of 2017

21. The proposal is that the Amendment Bill should be brought in line with the provisions of Mining Charter. Only defenders of white monopoly capital and those who are controlled by British imperialism would oppose the Mining Charter. It’s the most radical and revolutionary policy directive since 1994.

22. Who can, in their right minds, oppose these provisions?

i. Ownership

•​Minimum 30% BEE for all mining rights to be apportioned as follows:

– 8% employees
– 8% mining communities
– 14% black entrepreneurs

• Right-holders who are already at 30% black shareholding are not required to
apportion
• Minimum 50% plus 1 Black Person shareholding for all new prospecting rights; must include voting rights.
• Right-holder to pay 1% of annual turnover to the 30% BEE prior to any distributions to its shareholders. Provisions of Companies Act 71, 2008 will apply
• A right holder who claims a Historical BEE Transaction (transaction that achieved 26% prior to 2017 Charter) must top up to 30% within 12 months. This applies even where the black person shareholding is no longer 26% due to either a BEE partner exiting or the contract with the BEE partner lapsing or the transfer of shares by the BEE partner to non-BEE persons.
• A right holder who has maintained 26% black person shareholding is required to top up its black person shareholding to 30% within 12 months of the 2017 Mining Charter coming into effect.

ii. ​Employment equity

• Board level: 50% black; 25% to be women
• Executive/Top management: 50% black; 25% to be women
• Senior management: 60% black; 30% to be women
• Middle management: 75% black; 38% to be women
• Junior management: 88% black; 44% to be women

iii.​ Procurement

• 70% of all mining goods to be from BEE entities
• 80% of all services to be from BEE entities
• 100% of mineral samples to be analysed by SA-based firms
• Foreign suppliers to pay 1% of their annual turnover to the Mining Transformation and Development Agency.

iv.​ Beneficiation

• A maximum offsetting of 11% against BEE shareholding; must meet the following criteria:

– invested in beneficiation since 2004;
– the beneficiation must be in line with the definition of beneficiation contained in the MPRDA;
– the Department of Mineral Resources must approve such beneficiation;
-11% offsetting will not apply to beneficiation that started after 2004 but has since ceased or that has been terminated; and
-11% offsetting can only be claimed if the beneficiation is still ongoing.

v.​ Housing and living conditions

• Principles as set out in the Housing and Living Conditions Standards for the Mining and Minerals Industry developed in terms of section 100(1)(a) of the MPRDA which includes:

– decent standards of housing;
– centrality of home ownership;
– provision for social, physical and economic integrated human settlements;
– ​involvement of employees in the housing administrative system;
– affordable, equitable and sustainable health system; and
– proper nutrition requirements and standards.

vi. Human resource development

• 5% investment of the Leviable Amount on skills development, apportioned as follows:

– 2% on essential skills development activities such as artisanal training, bursaries, literacy and numeracy skills for employees and non-employees (community members);
– 1% towards South African Historically Black Academic Institutions; and
– 2% towards the Mining Transformation and Development Agency.

23. BLF calls on this Committee to make the Mining Charter an intergral part of the Amendment Act and to strengthen the monitoring and evaluation responsibility – for instance, the Mining Charter makes provision for 30% black owners in 12 months. It’s up to the committee to make it a legislative imperative to report on a quarterly basis the progress being made.

Transform the banking system now!

24. The important reforms of the mining sector are going to be sabotaged by the colonial, racist and corrupt banking sector. There is no point in allocating these important percentages of ownership in the mining sector to blacks when white monopoly capital has total control over the financial sector, specifically banking.

25. This Committee must of necessity in the interests of wholistic Radical Economic Transformation, act in tandem with in particular the Treasury. It has to be impressed upon Minister Malusi Gigaba that his reluctance to move with great speed in licencing black banks and a State bank is an act of self sabotage.

26. Treasury must be employed to immediately fully licence the banks that are black or State owned (but are treated like second class citizens) – such as the Ithala Bank; the Venda Building Society (VBS), Postbank – and assist private black banks. All this must happen immediately or blacks are going to be at the mercy of rogue banks like ABSA.

27. We can’t afford half measures if we want Radical Economic Transformation!

20 June 2017
Andile Mngxitama
BLF President