No need to amend Constitution to expropriate
The South African Parliament has recently entertained a motion that land expropriation without compensation should be considered, by way of an amendment to section 25 of the Constitution of the Republic of South Africa, Act 108 of 1996.
Section 25 of the Constitution reads as follows:
(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of 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.
(3) The amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including –
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purpose of this section –
(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and
(b) property is not limited to land.
(5) The state must 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.
(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
(7) A person or community dispossessed of property after June 19, 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an
Act of Parliament, either to restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection (6).
It is not necessary to amend the Constitution to make provision for land expropriation without compensation. The Constitution already makes provision for expropriation without compensation in exceptional circumstances, with reference to the factors set out in section 25(3) of the Constitution. The law should therefore remain exactly as it is and it should simply be applied.
Sections 25(3), (4) and (5) of the Constitution make it clear that the amount of compensation referred to in section 25(2) of the Constitution may be determined as set out in section 25(3), which could, under given circumstances, yield a result of expropriation without compensation.
Section 25 of the Constitution was inserted into the final Constitution by way of negotiation between all the relevant parties who were responsible for the drafting of the final Constitution of the Republic of South Africa, Act 108 of 1996.
When the Constitution was certified by the Constitutional Court, the Court dealt with section 25.
In that discussion of the Court, reference was made to the fact that the Constitution does not stipulate that compensation should be calculated only on the basis of market value. The approach should be that expropriation should take place only where the use to which the expropriated land would be put is in the interests of a broad section of the public.
The Court considered international conventions and foreign constitutions, and came to the conclusion that a wide range of criteria for expropriation and the payment of compensation exists. Various words are used for purposes thereof, namely “fair”, “adequate”, “full”, “equitable”, “appropriate” and “just”.
The Court found that there is no consistency with regard to the criteria for expropriation itself and therefore the approach in section 25 cannot be said to flout any universally accepted approach to the question.
It is clear that the Court was not prepared to lay down a principle that compensation must be paid in all instances, or that compensation in the form of market value must be paid in all instances, and that the Court was satisfied that section 25 makes provision for lower or no compensation to be determined in certain circumstances, with reference to the criteria set out in section 25(3).
Section 25(3) has already been applied in certain circumstances by the Land Claims Court by adjusting market value with reference to the factors set out in section 25(3) and has expropriation occurred without any compensation having been paid or awarded by the Court. Furthermore the Constitutional Court has already recognised the possibility of expropriation without compensation.
It is therefore possible that in suitable cases expropriation may be just and equitable without any compensation. This may especially be the case when the property was for example acquired in an inequitable manner in the first place, or where the State funded or subsidised the acquisition and development of the property to such an extent that it would inequitable to require compensation.
It follows therefore that the Constitution currently makes provision for land expropriation without compensation, in certain given and exceptional circumstances.
Various pieces of legislation have also been enacted for purposes of restitution of land and redistribution of property, namely inter alia the Communal Land Rights Act, Labour Tenants Act, The Restitution of Land Rights Act, the Interim Protection of
Informal Land Rights Act, the Extension of Security of Tenure Act, Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, and the Communal Property Associations Act.
In terms of this legislation, various disputes are currently being dealt with through the mechanism of those Acts, and it cannot simply be undone, for example, by a unilateral determination of the expropriation of all land in South Africa. Any such action or legislation will undermine the rights and duties of the parties that have been created in respect of disputes that have been lodged in terms of that legislation.
Any legislation that will interfere with the rights and obligations that have been created in respect of the abovementioned legislation will be unfair, unjust, inequitable and contrary to various protected constitutional rights enshrined in the Constitution.
The Restitution of Land Rights Act, makes provision for restitution of rights in land of persons who were dispossessed of such rights after June 19, 1913 as a result of past racially, discriminatory laws or practices.
The application of this Act up to now has created rights for different parties and legitimate expectations, which cannot simply be arbitrarily taken away through different legislation, simply providing for blanket expropriation of land, subject to land claims, without compensation. That would be unconstitutional in itself.
It follows therefore that expropriation of land without compensation can and should be applied only in exceptional circumstances, where the payment of less compensation or no compensation is warranted in terms of section 25 of the
Constitution, and only in respect of a specific piece of land.
It is therefore submitted that section 25(3) of the Constitution makes provision for expropriation without compensation in certain specific exceptional instances, which is in accordance with international law and practice.
Amendments to section 25 are therefore not necessary nor justified and any statutory provisions that may attempt to justify expropriation without compensation, that allows across the board expropriation of certain categories of property, without having regard to the specific attributes of each separate property, will be contrary to section 25 of the Constitution, and contrary to international law.
Expropriation should be dealt with on a case-by-case basis, in terms of section 25 of the Constitution, with reference to the attributes of each separate property and the application of section 25(3) of the Constitution.
The law should therefore remain exactly as it is and it should simply be applied.
Compiled by Arnoldt Cilliers in collaboration with Adv Roelof du Plessis SC
DU TOIT-SMUTS & PARTNERS ATTORNEYS is a well-established Law Practice situated in Nelspruit (Mbombela), the capital of Mpumalanga Province. We provide highly specialised legal services in all legal fields, and we have been serving the community for more than 40 years.
Contact us: 013-755-2455
