Tackling the hot topic of land expropriation

More than a few eyebrows were raised when Engel and Volkers Dolphin Coast owner and property lawyer Karien Hunter said land ownership could never be absolute.

Followed by plenty of sighs of relief once people realised that this did not mean land could simply be expropriated without justification.

The team from Engel and Volkers KZN Dolphin Coast recently hosted a large crowd at Simbithi, where Hunter tackled the hot topic of land expropriation, taking the time to explore some of the constitutional aspects of this driving issue.

“Section 25 of our constitution protects against the arbitrary deprivation of land, and simultaneously allows for the expropriation of land, subject to compensation,” explained Hunter.

Section 25 states property may be expropriated only for a public purpose or in the public interest and subject to compensation, which has either been agreed to by those affected or approved by a court.

This means that section 25 of the constitution does not guarantee private property. What it does is set out the requirements that must be met when the government interferes with private property rights.

“In terms of the Expropriation Act of 1975, expropriation happens when an expropriation notice is served on a land owner.”

As long as the state can show that the land has been expropriated for a public purpose (such as the building of a dam, and in certain circumstances, land reform) and that they have complied with the Promotion of Administrative Justice Act (PAJA), the expropriation as such cannot be challenged – only the amount of compensation payable can be challenged if such compensation is not ‘just and equitable’ which is a requirement under Section 25.

The PAJA exists to ensure the constitutional requirement that administrative action should be lawful, reasonable and procedurally fair. The following must be taken into account in determining what is ‘just and equitable’ compensation:

• The current use of the property.
• The history of the acquisition and use of the property.
• The market value of the property.
• The extent of direct state investment and subsidy in the acquisition and improvement of the land.
• The purpose of the expropriation.

“The ownership of land has never been absolute and can never be. The amount of the compensation however must be ‘just and equitable’, reflecting a balance between the public interest and the interests of the landowner,” she said.

Hunter also spoke about the possibility of amending the constitution.

The constitution can only be amended by a two-thirds majority in parliament.

However, the constitutional court will have the final say as they are the supreme authority on any legislative amendments, including amendments to the constitution once such amendments are challenged in court.

“Any amendment to our constitution must affirm the democratic values of human dignity, equality and freedom which is enshrined in our Bill of Rights.

“A change to the constitution to do away with compensation upon the expropriation of land, cannot be reconciled to such values and therefore cannot succeed the final scrutiny of the constitutional court.

“Land reform should enhance, rather than detract from private ownership of property.”

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