Trump’s promises might leave Afrikaners in legal limbo
Before Afrikaners start packing their bags for a new trek to the Land of the Free, they might want to get some sage legal advice.
This is the advice from Prof Rodney Uphoff from the University of Missouri, who is also an Extraordinary Professor in the Law Faculty at the University of the Western Cape (UWC).
Prof Rodney Uphoff Image: Shelley Christians/UWC
US President Donald Trump’s recent Executive Order, inviting Afrikaners to America, ostensibly because their human rights are being violated following the enactment of the Expropriation Act, has caused a diplomatic back-and-forth between the South African government and the Trump administration. This as the South African government insisted that Trump’s order, which followed an earlier edict cutting aid to the country, had been fuelled by disinformation, particularly from the likes of one of the world’s richest men, Elon Musk.
“If you look at the language in his executive order (pertaining to Afrikaners), he also says there are no rights or responsibilities, no legal basis so that a South African can’t essentially come over and say ‘Wait, you promised that you were going to do certain things’,” said Prof Uphoff.
He said those taking up Trump’s offer will be “completely on their own” and likely face a legal maze should their status face scrutiny from the American courts.
“It’s not even clear if they apply (for resettlement) that at the end of the day they’ll be accepted. Even though he’s got this order, the language of the order includes this sentence at the end which essentially says ‘no-one can legally rely on this’,” he continued.
Prof Uphoff said Trump’s sweeping executive orders, since being inaugurated on January 20, have been unprecedented.
“No president has issued the kind of sweeping executive orders that Donald Trump issued in the first month of his presidency. The number and the sweeping nature of these executive orders is beyond compare with any other President,” said Prof Uphoff.
He said Trump’s executive orders regarding South Africa were based on “completely erroneous” information about the Expropriation Act and the process leading up to its passage in January.
“There haven’t been land grabs without compensation. His (Trump’s) claim that white farmers are being deprived of their land, illegally and without compensation, is wholly without any factual basis at all,” he said.
He said a consensus of American legal scholars would agree that most of Trump’s executive orders, including the one pertaining to Afrikaners, would be unconstitutional.
“He has no legal basis to fire, for example, some of the independent examiners who are appointed by Congress (not the President) and so he can’t simply override Congress and fire people.
“That’s being challenged in court as many of his executive orders are being challenged in court, but Trump at this point doesn’t seem to care; he seems to think that he has the power to do whatever he wants to do, as he was quoted in the New York Times, in order to ‘save the country’,” said Uphoff.
He said Trump’s argument that his actions were to save America was “completely bogus” and that it violated the separation of powers.
“He’s acting like a king, he’s acting like a sovereign which is completely inconsistent with the constitutional requirements and structure of separation of powers, just like in South Africa, just like in every other democracy that I’m aware of around the world,” said Prof Uphoff.
Expropriation Act could support equitable land redistribution in SA
South Africa’s land reform process has recently made headlines due to the recent enactment of the Expropriation Act. A leading academic at the University of the Western Cape (UWC), Prof Ruth Hall, emphasised that South Africa still needs to embark on meaningful redistribution of rural and urban land, and the Expropriation Act is necessary to align the country’s laws with the constitutional mandate for equitable land redistribution.
This comes as US President Donald Trump issued an executive order, in which he cut off aid to South Africa and offered to resettle Afrikaners because the South African government would use the legislation “to seize ethnic minority Afrikaners’ agricultural property without compensation.”
Prof Ruth Hall Image: Ruvan Boshoff/UWC
Prof Hall, who heads the Institute for Poverty, Land and Agrarian Studies (PLAAS), said issues around equitable land reform had been delayed for too long and the Expropriation Act is one tool available to the government to finally bring justice to those who have been dispossessed. The question remains whether the government actually wishes to use these powers in favour of the poor and landless.
The Act fulfills the political deal which had been struck in 1995 which came about during the negotiations over South Africa’s new constitution, specifically the content of the “property clause”.
“At the time, the ANC, like the PAC and others, didn’t want a property clause in the constitution. They didn’t want to entrench existing property rights and freeze them in time,” said Prof Hall.
The ultimate deal which was struck was that there would be a property clause, but it would not insulate existing property relations. But Prof Hall emphasised that the "property clause" sets out rights for landless people and was “meant to be a mandate for change.”
The ultimate deal which had been struck was that there would be a property clause but it would not insulate existing property relations. But Prof Hall emphasised that this was “meant to be a mandate for change.”
The property clause ensured that there were certain guarantees about people not arbitrarily being dispossessed, but still charged that there must be land reform. She said between the compromise in 1995, until the enactment of the Expropriation Act, there has been no law to give effect to the spirit of the constitution's property clause.
Prof Hall explained that over the past three decades, without a legal framework to expropriate land, it resulted in a “willing buyer, willing seller” approach which was not in the constitution.
“So we still had an old Act, from 1975, which required market-related compensation. It only allowed the State to expropriate for public infrastructure - not for land reform.
“So there’s been a discrepancy for 30 years between the constitution’s mandate and the law of the land. That’s why it was always essential to have a new expropriation law. In fact, the Cabinet gave the mandate for us to replace the old Act with a new expropriation act,” said Prof Hall, who served as a member of President Cyril Ramaphosa's Advisory Panel on Land Reform and Agriculture.
The draft Expropriation Bill, sent to Parliament in 2008, had to be withdrawn because “certain political parties, property owners associations, and various other groups argued that it gave unfettered powers to the State”.
“This Bill that was finally passed was the fourth bill, and each time it was taken to Parliament it was withdrawn, revised, and so on,” she revealed.
After the Bill was revised, following consultations, the requirements on what the State needed to do in order to expropriate (land) became more onerous.
Property owners and political lobbies were instead pushing for greater protections for property owners, leading to more opportunities for dispute and contest. According to Prof Hall, the “willing buyer, willing seller” method has been the default land reform method, serving as more of a carrot to landowners.
“This becomes a problem for several reasons, it is not only a question of price; it is also a matter that most of the land being offered for sale was in marginal areas. By far, the most land which has been bought for redistribution has been in the Northern Cape.”
Before Afrikaners start packing their bags for a new trek to the Land of the Free, they might want to get some sage legal advice.
This is the advice from Prof Rodney Uphoff from the University of Missouri, who is also an Extraordinary Professor in the Law Faculty at the University of the Western Cape (UWC).
Prof Rodney Uphoff Image: Shelley Christians/UWC“If you look at the language in his executive order (pertaining to Afrikaners), he also says there are no rights or responsibilities, no legal basis so that a South African can’t essentially come over and say ‘Wait, you promised that you were going to do certain things’,” said Prof Uphoff.
He said those taking up Trump’s offer will be “completely on their own” and likely face a legal maze should their status face scrutiny from the American courts.
“It’s not even clear if they apply (for resettlement) that at the end of the day they’ll be accepted. Even though he’s got this order, the language of the order includes this sentence at the end which essentially says ‘no-one can legally rely on this’,” he continued.
Prof Uphoff said Trump’s sweeping executive orders, since being inaugurated on January 20, have been unprecedented.
“No president has issued the kind of sweeping executive orders that Donald Trump issued in the first month of his presidency. The number and the sweeping nature of these executive orders is beyond compare with any other President,” said Prof Uphoff.
He said Trump’s executive orders regarding South Africa were based on “completely erroneous” information about the Expropriation Act and the process leading up to its passage in January.
“There haven’t been land grabs without compensation. His (Trump’s) claim that white farmers are being deprived of their land, illegally and without compensation, is wholly without any factual basis at all,” he said.
He said a consensus of American legal scholars would agree that most of Trump’s executive orders, including the one pertaining to Afrikaners, would be unconstitutional.
“He has no legal basis to fire, for example, some of the independent examiners who are appointed by Congress (not the President) and so he can’t simply override Congress and fire people.
“That’s being challenged in court as many of his executive orders are being challenged in court, but Trump at this point doesn’t seem to care; he seems to think that he has the power to do whatever he wants to do, as he was quoted in the New York Times, in order to ‘save the country’,” said Uphoff.
He said Trump’s argument that his actions were to save America was “completely bogus” and that it violated the separation of powers.
“He’s acting like a king, he’s acting like a sovereign which is completely inconsistent with the constitutional requirements and structure of separation of powers, just like in South Africa, just like in every other democracy that I’m aware of around the world,” said Prof Uphoff.
Expropriation Act could support equitable land redistribution in SA
South Africa’s land reform process has recently made headlines due to the recent enactment of the Expropriation Act. A leading academic at the University of the Western Cape (UWC), Prof Ruth Hall, emphasised that South Africa still needs to embark on meaningful redistribution of rural and urban land, and the Expropriation Act is necessary to align the country’s laws with the constitutional mandate for equitable land redistribution.
This comes as US President Donald Trump issued an executive order, in which he cut off aid to South Africa and offered to resettle Afrikaners because the South African government would use the legislation “to seize ethnic minority Afrikaners’ agricultural property without compensation.”
Prof Ruth Hall Image: Ruvan Boshoff/UWCThe Act fulfills the political deal which had been struck in 1995 which came about during the negotiations over South Africa’s new constitution, specifically the content of the “property clause”.
“At the time, the ANC, like the PAC and others, didn’t want a property clause in the constitution. They didn’t want to entrench existing property rights and freeze them in time,” said Prof Hall.
The ultimate deal which was struck was that there would be a property clause, but it would not insulate existing property relations. But Prof Hall emphasised that the "property clause" sets out rights for landless people and was “meant to be a mandate for change.”
The ultimate deal which had been struck was that there would be a property clause but it would not insulate existing property relations. But Prof Hall emphasised that this was “meant to be a mandate for change.”
The property clause ensured that there were certain guarantees about people not arbitrarily being dispossessed, but still charged that there must be land reform. She said between the compromise in 1995, until the enactment of the Expropriation Act, there has been no law to give effect to the spirit of the constitution's property clause.
Prof Hall explained that over the past three decades, without a legal framework to expropriate land, it resulted in a “willing buyer, willing seller” approach which was not in the constitution.
“So we still had an old Act, from 1975, which required market-related compensation. It only allowed the State to expropriate for public infrastructure - not for land reform.
“So there’s been a discrepancy for 30 years between the constitution’s mandate and the law of the land. That’s why it was always essential to have a new expropriation law. In fact, the Cabinet gave the mandate for us to replace the old Act with a new expropriation act,” said Prof Hall, who served as a member of President Cyril Ramaphosa's Advisory Panel on Land Reform and Agriculture.
The draft Expropriation Bill, sent to Parliament in 2008, had to be withdrawn because “certain political parties, property owners associations, and various other groups argued that it gave unfettered powers to the State”.
“This Bill that was finally passed was the fourth bill, and each time it was taken to Parliament it was withdrawn, revised, and so on,” she revealed.
After the Bill was revised, following consultations, the requirements on what the State needed to do in order to expropriate (land) became more onerous.
Property owners and political lobbies were instead pushing for greater protections for property owners, leading to more opportunities for dispute and contest. According to Prof Hall, the “willing buyer, willing seller” method has been the default land reform method, serving as more of a carrot to landowners.
“This becomes a problem for several reasons, it is not only a question of price; it is also a matter that most of the land being offered for sale was in marginal areas. By far, the most land which has been bought for redistribution has been in the Northern Cape.”
