LATE struggle icon and former president Nelson Mandela’s foundation is taking the battle over his unfinished business to the Western Cape High Court in its bid to achieve equitable land access for all.
The Nelson Mandela Foundation (NMF) has launched a Western Cape High Court application to force the government to discharge its obligations diligently and without delay and take reasonable legislative and other measures, within its available resources, to foster conditions to enable citizens to gain access to land on an equitable basis.
The NMF, which Mandela—who died 11 years ago—established after leaving office in 1999, wants National Assembly speaker Thoko Didiza, National Council of Provinces (NCOP) chairperson Refilwe Mtsweni-Tsipane, President Cyril Ramaphosa, and Land Reform and Rural Development Minister Mzwanele Nyhontso to be directed to ensure that the reasonable national legislation is enacted within 18 months of a ruling in its favour.
According to the foundation, the national legislation should address the definition of equitable access to land, how land is to be identified and acquired as well as how beneficiaries are to be selected and supported.
The national legislation, the NMF states before the high court, should also deal with multiple land uses and integration with other elements of land reform.
Additionally, Parliament and national government should be directed to report to the high court every three months regarding the steps taken to pass such legislation.
The NMF has asked that to the extent, if any, that the Provision of Land and Assistance Act and the Spatial Planning and Land Use Management Act constitute national legislation passed pursuant to section 25(5) of the Constitution, they should be declared to be inconsistent with the Constitution, unconstitutional and invalid to the extent that they fail to address the issues it lists in its application.
Section 25(5) of the Constitution requires the state to take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.
If successful, the NMF wants the order granted by the high court to be referred to the Constitutional Court for confirmation in accordance with the Constitution.
In his founding affidavit, the foundation’s chief executive Dr. Mbongiseni Buthelezi explains that the constitutional challenge is against the government’s failure to comply, diligently and without delay, with the provisions of the Constitution to enable citizens to gain access to land on an equitable basis.
The NMF’s contention is that nearly three decades later the state has failed to enact such legislation.
“We consider realising the right to equitable access to land, and more broadly the advancement of land reform, as unfinished business of Madiba. As such, this forms part of the foundation’s responsibility to take up,” Buthelezi told the high court.
He explained that 30 years since democracy and over a decade since Mandela’s passing the foundation believes that it is urgently critical that the Constitution becomes a more lived reality for all who live in the country.
“The mere existence of the Constitution is not what will make the lives of people better but rather the actions taken to give expression to the contents thereof,” added Buthelezi in his affidavit.
He continued: “The persistence of racialised unequal land relations means that, for the majority of South Africans, the legacy of dispossession live on, and the past is very much the present.”
In its court papers, the foundation also expresses its unhappiness with the Expropriation Bill, which awaits Ramaphosa's assent after being approved by both the National Assembly and the NCOP in March this year.
The NMF believes that while the bill makes provision for the expropriation of land without compensation in the public interest including for land reform purposes it is unlikely to be the tool that accelerates the pace of the provision of equitable access to land as required by section 25(5) of the Constitution.
“The Expropriation Bill says nothing about the process or terms of land redistribution to beneficiaries or how it will foster equitable access to land. In short, it is not the legislation required by section 25(5) of the Constitution,” the foundation maintained.
Buthelezi told the Sunday Independent this week that papers were served on Ramaphosa last Thursday (December 12) while Didiza and Mtsweni-Tsipane received theirs on Tuesday (December 17).
He said none of the respondents (Didiza, Mtsweni-Tsipane, Ramaphosa and Nyhontso) had filed in response to the NMF’s application, to which the government may choose to abide by the order, seek a settlement or oppose the matter.
“We strongly encourage Parliament and the (national) executive to abide by the order that we are seeking, and to give effect to section 25(5) within the requested period, in the best interests of the public. We are yet to hear from the relevant parties regarding what course of action they will take,” Buthelezi added.