The current talks about land expropriation without compensation has been on everyone’s lips over the past year, but what does it actually mean? How can it be implemented? Can it be implemented?

Let’s take a look at the South African structures and legislation:

Application of the Constitution

The South African Constitution can be applied vertically. It enables a trias politica which divides the Judiciary, Executive and Legislature spheres. This means that the government must perform its separate powers distinctly from one another but on a system of checks and balances. The Constitution comprises of a set of social and economic rights, which places a positive duty on the State to take reasonable steps to provide more housing and expand access to housing for the citizens who are most in need.

Furthermore, the Constitution applies on a horizontal level. This is where it places a duty on businesses, institutions and private individuals to act within the ambit of the Constitution. In such an application, the rights provided to private individuals and the like can be weighed up against one another (as provided for in section 36), limiting the right of an individual who is the “least infringed” of the two. Therefore, the application of the Constitution, vertically or horizontally, means that the human rights of an individual can be imposed on by the state as well as other individuals.^[1]

Land Expropriation in terms of the Constitution

Section 25 of the Constitution^[2] deals with land expropriation.

Section 25 (2) provides that property may be expropriated according to the law of general application— (a) for a public purpose or in the public interest; and

(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

Section 25(3) further provides that the amount of the compensation and the time and manner of payment must be just and equitable.

Interpretation

The central tenet of this section is found in the wording “payment must be just and equitable”. On first inspection of the wording, “just and equitable” could be interpreted to mean that expropriation must take place in accordance with compensation that is equivalent to the market value of the property at the time of expropriation.

The above wording has led to those in favour of land expropriation without compensation interpreting “just and equitable” to include instances where land is expropriated and the value of such land could amount to zero. This valuation is not determined by the actual market value, but is rather determined by comparing the historical injustices of the past against the compensation due to the owner of the expropriated land. Furthermore, section 36 of the Constitution^[3] can also be an aid in determining whether expropriation may be made with or without compensation. A person’s right to housing is weighed up against an owner’s right to payment that is just and equitable, and the person whose right is more adversely affected will take preference.

This view seems to be subjective and results in the interpretation of this section being in favour of those who interpret it. It cannot be proven that in every situation where land is expropriated, that the valuation of such land will always amount to zero.

Amending the Constitution

When it comes to amending the Constitution, each amendment will be based on its merits. If an amendment is proposed that protects members of the government at the expense of national citizens, then it goes against the democratic values imbedded in the Constitution itself.

The Constitution applies on such an expansive scale; it is often challenging to determine which provisions of the Constitution actually hinder social and economic growth. Those wishing to amend the Constitution to enable land expropriation without compensation have raised the argument that it’s grounded on social and economic transformation. As much as this is a concrete reason, the matter in which the Constitution is to be amended is vague and there is not sufficient evidence to prove that section 25 is a “stumbling block” to the effective governance of South Africa. The property clause does not require a “willing buyer or willing seller” for the land reform process. Furthermore, it can also exclude payment for the market value of land expropriated for reform purposes. The grounds for amending section 25 will need to be based on findings that prove that this section is contrary to the values of the Constitution or that is objectionable to the Constitution itself.^[4]

Will the ANC Amend the Constitution to Include Land Expropriation without Compensation?

It is the goal of the EFF to amend section 25 of the Constitution and specifically provide that the State is to own all land.

Section 25 allows for land expropriation if it is in the interest of the public. Expropriation is subject to the compensation for the land but provision can be made that for land to be expropriated without payment of the market value. Furthermore, compensation can be agreed upon by those affected or can be approved or disallowed by a court of law. As mentioned above, those wishing to change section 25 needs to provide substantial reasons that this section hinders economic and social transformation. However, it is difficult to prove that section 25 is objectionable as it is has a wide application and it does provide circumstances for expropriation without payment of the market value.

The land summit held over the 18^th and 19^th of May 2018, discussed the issue of land expropriation without Compensation. Jeremy Cronin, the Deputy Public Works Minister, had previously spoken out on behalf of the ANC and stated that, “While the ANC has not consolidated its position in this respect, the emerging view within is that the Constitution does not require an amendment.”

The ANC is still continuing with an action that will see land expropriation without compensation being implemented in the future. They aim to do it in a way that does not require an amendment of section 25 of the Constitution, but will rather be implemented by the updated Expropriation Bill. The party has returned the Bill to parliament and has included special circumstances that will give effect to land expropriation without compensation.

Such circumstances include but are not limited to:

1. Vacant land;
2. Land that is occupied by tenants but these tenants are working in the absence of the owner; and
3. Land that is owned purely for speculation.

This Bill enables an alternative to accommodating land expropriation without requiring an amendment of the Constitution. It can be implemented by way of legislative process, statute or applying the limitation clause set out in section 36.

Cronin also warned against changing the Bill of Rights as chapter 2 is the fundamental essence of the Constitution and has higher importance than the rest of the chapters. There have been amendments made to the Constitution in the past but there has to be substantial and implicating reasons to amend Bill of Rights. “It is the foundational social compact of 1996,” Cronin said.^[5]

Where Are We Now?

The EFF has put forward the proposal for the amendment of section 25 of the Constitution and Parliament has approved this motion. However, The ANC has put through the proposal of the Land Bill to a Joint Constitutional Review Committee. This process includes public consultation and it will only be finalized in August.^[6]

The outcome of the process could mean that the Bill is implemented as legislation to be read in light of the constitutional principles relating to the property clause. One must always remember that the Constitution is the most powerful law to be applied in South Africa and it trumps any other form of legislation that is contrary to it. This means that certain sections in the Land Bill relating to expropriation without compensation can apply to some land but not all land where it will result in infringement of constitutional provisions. The best solution will be to weigh up human rights of individuals contained in the Constitution against the social and economic transformation objectives and rights of the previously disadvantaged obtained in the Bill.

Currently, AfriForum has made it public that they are considering legal action against the procedure in which land expropriation without compensation is being instituted. The group maintains that the public consultation process, as mentioned above, has been manipulated by the ANC to have an outcome that will be favourable to the leading party.^[7]

If the Bill is rejected and the EFF gains 75% approval by the National Assembly for their motion to amend the Constitution, it could have devastating consequences. All land will become state owned and it will not only be the successors in title (land passed by way of inheritance) being stripped of their title deeds, but also the expropriation of land belonging to new found land owners who had been previously disadvantaged.^[8]

^[1] Pierre de Vos, Constitutionally Speaking, 23 March 2012.

^[2] The Constitution of the Republic of South Africa, 1996.

^[3] The Constitution of the Republic of South Africa, 1996.

^[4] Pierre de Vos, Constitutionally Speaking, 23 March 2012; Pierre de Vos is of the view that unclear proposals made to amend provisions of the Constitution can be treated as a “scapegoat for those wishing to avoid accountability for governance failures over the past 18 years”.

^[5] Mahlatse Mahlase, Cronin: ANC won’t amend Constitution on land expropriation, Mail & Guardian 28 March 2018

^[6] Mahlatse Mahlase, Cronin: ANC won’t amend Constitution on land expropriation, Mail & Guardian 28 March 2018

^[7] Shamiela Fisher AfriForum ‘Considers” Legal Action over Land Expropriation without Compensation, Eye Witness News 10 June 2018

^[8] Mahlatse Mahlase, Cronin: ANC won’t amend Constitution on land expropriation, Mail & Guardian 28 March 2018

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.