The 139 farms that the ANC has earmarked to be its "test cases" for possible expropriation without compensation are owned by white farmers who have previously rejected the government's offers for their land.
The government, through the department of rural development & land reform, is now preparing to expropriate the farms using the "just and equitable" compensation clause of existing legislation.
This comes after the ANC national executive committee lekgotla expressed its support for an amendment to section 25 of the constitution to allow for the expropriation of land without compensation.
There are those in the party who believe current legislation already allows for expropriation without compensation. To test this, the party instructed the rural development & land reform department to use the farms as guinea pigs.
The farms are subject to land claims from dispossessed communities.
The government is prepared to compensate the farmers as prescribed by the office of the valuer-general. The farmers have demanded more.
The head of the rural development ministry, Mashile Mokono, told the Sunday Times that the department had received an instruction from the minister to pursue the expropriation of the farms right up to the Constitutional Court.
He said the farms were not arbitrarily selected and would not be "snatched away from the owners". Should the department and the farmers reach agreement on the price, the farms would be bought.Mokono denied claims by some ANC leaders that the ANC lekgotla decided to expropriate those farms without compensation immediately.
"The situation is that government is instructed that in the normal processing of the land reform projects, can you make sure that on the issue of expropriation, those projects you have - whatever number they are - can they be speeded up.
"Can we move to a stage where offers and then expropriation notices are issued, and if there's a disagreement on them they be referred to court, " Mokono said.
He said the directive was to not relent if the farmers take the department to court to object to the valuer-general's valuation so that "once and for all" the Constitutional Court can pronounce on what section 25 (3) of the constitution means.
Mokono said the department was prepared to take these cases to the highest court.
"That really is the instruction. So the Constitutional Court can pronounce and guide all of us," Mokono said.
Lobby group Sakeliga has submitted a Promotion to Access to Information request for a list of the farms to be made public, but the department is adamant that it would be illegal to disclose which farms are on its list.
Agri SA has threatened to take the ANC to court over this.
"We didn't sit with a map and decide to point to which farms we want. It was a thorough process that normally happens in the department. As things stand there are offers made to the landowners already, and the landowners have refused those offers," said Mokono.He said the department had set aside funds for the farms and if there were no disagreements, the department would have gone ahead and bought them.
The department believes the current provision of the constitution may allow for farms to be expropriated with the value of the farm set at zero rands.
"When land is evaluated, we take different things into consideration. If we consider the fact that maybe that land was given to the farmer by the apartheid government, then that farmer got soft loans, and when there was drought he further got more … so the valuation might be that the farmer doesn't get anything. Zero," Mokono said.
The government is expecting that the parliamentary process to amend the constitution will not be concluded by the end of this administration, which is why a Constitutional Court order on the matter is crucial.
A member of the executive said this week that it's likely that once the Constitutional Court proclaims on any of the 139 cases, section 25 may not need to be overhauled...