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An amendment to the Constitution will not fix institutional incapacity, says the writer. (iStock)
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A contextual approach (regardless of the reason for the expropriation) with flexible policy guidelines on the calculation of compensation will address the problem more effectively, and prevent litigation that drives up the cost of expropriation exponentially, writes Elmien du Plessis
The Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of the Constitution finalised the wording of the amendment to the Constitution in line with their mandate to amend "[s]ection 25 of the Constitution […] to make explicit that which is implicit in the Constitution, with regards to expropriation of land without compensation, as a legitimate option for land reform".
It will be published in the Government Gazette for comment on Tuesday.
The aim of the amendment is set out in the memorandum, which is audibly silent on the bigger context of the systemic problems in land reform.
Nowhere during this entire process, is it stated why this amendment is needed to address the systemic issues, nor how it would do so.
Legal experts presenting to the previous Ad Hoc committee indicated that the Constitution is not the obstacle to land reform.
The Constitutional Court also recently confirmed that "[i]t is not the Constitution, nor the courts, nor the laws of the country that are at fault in [the Department's failure to practically manage and expedite land reform measures]. It is the institutional incapacity of the Department to do what the statute and the Constitution require of it that lies at the heart of this colossal crisis".
An amendment to the Constitution will not fix institutional incapacity.
Submissions made by a wide variety of interest groups speaking to the systemic failures in land reform were not engaged with by the Constitutional Review Committee, nor any of the two Ad Hoc Committees in Parliament.
We are still awaiting a public platform to engage with these issues and to collaboratively craft solutions. All South Africans have an interest in ensuring successful land reform. Skewed land ownership is manifestly unjust.
We committed ourselves to heal the injustices of the past. And the land issue is part of that.
But the Brexit-like fixation on a simple question of must-the-Constitution-be-amended-yes-or-no, without more in-depth engagement with the "what then" or "will it solve the problem" left people who hoped that this process would be a catalyst for change frustrated.
And now we sit with a draft amendment to the Constitution, devoid of proper context.
From a legal perspective, what are the issues?
The proposed new subsection 3A requires that national legislation should spell out circumstances in which a court may determine the amount of compensation to be nil.
Promulgation of national legislation to do so is possible without an amendment, but 3A places a duty on the State to promulgate such a law.
The legislation must be in line with the Constitution, and is therefore still subject to a compensation standard of "just and equitable".
The amendment places a specific duty on the court to determine nil compensation.
With the compensation standard as "just and equitable", and a contextual approach requiring a balancing of rights, the amendment makes it explicit that there are instances where this balance may fall on nil compensation.
It does not remove the state's duty to compensate (i.e. "without compensation").
An owner that wishes to contest that nil compensation is not "just and equitable" will therefore still be able to do so.
An expropriation is an administrative act, which means that the state must give reasons for the decision to expropriate and show how it calculates compensation.
These decisions can be taken on appeal internally, and on review at the courts. The first part of section 25(2)(b) already allows access to courts. It is not clear why the amendment restricts the power to determine nil compensation to the courts.
A litigious process will drive up the cost of expropriation.
The instances of nil compensation are restricted to cases where the purpose of the expropriation is for land reform.
Clause 12(3) of the Expropriation Bill foresees instances of nil compensation to include abandoned buildings and land held for speculative purposes, presumably in peri-urban areas, for housing.
To date, this was not part of "land reform". A clarification on what will fall under "land reform" is therefore needed.
The Land Claims Court has on occasion said that there should not be discrimination between an owner whose land is expropriated for land reform purposes, and an owner whose land is expropriated for building a road, for instance.
Foreign case law indicates that interference with property rights by offering less than market value for reform purposes is acceptable. Engagement with this is therefore needed.
All that said, a contextual approach (regardless of the reason for the expropriation) with flexible policy guidelines on the calculation of compensation will address the problem more effectively, and prevent litigation that drives up the cost of expropriation exponentially.
When we as civil society engage with the proposed amendment the next two months, it is essential to remember that expropriation is an invasive state power, that expropriation is paid because we cannot expect an individual (or single community) to carry a burden for something that is in the national interest.
It is only a method of acquisition, nothing more. And history has shown that in the hands of a Verwoerdian type leader, this power can lead to devastating, long-lasting effects.
- Professor Elmien du Plessis is an associate-professor at law at the North-West University
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