What prevents expropriation without compensation in SA?

Cape Town - As long as section 25 remains part of the South African Constitution, expropriation without compensation is not possible, Agri SA said on Tuesday.

The agricultural industry association is looking into the matter of expropriation and compensation in light of the current political debate surrounding these issues.

In practice, it would mean that a two-thirds majority in the National Assembly must vote in favour removing or amending section 25 and that six of the nine provinces would also have to do so.

According to Annelize Crosby, Agri SA’s adviser – legal and land affairs, parliamentary liaison, said widespread concern has been raised among members regarding political statements in favour of expropriation without compensation.

"Many irresponsible statements regarding expropriation without compensation have been made recently, also by senior politicians. The truth, however, is that our Constitution does not make provision for expropriation without compensation," said Crosby.

In March President Jacob Zuma reiterated that there are weaknesses in SA’s willing-buyer, willing-seller principle which delay land reforms and that land restitution without compensation is under way. In his view, the willing-buyer, willing-seller situation causes the state to be a price taker in an unfair process.

In Zuma's view, there are also too many laws dealing with land reform, which cause confusion and delays.

'Land hunger is real'

“The fact remains that land hunger is real. This is not surprising as this was the fundamental question at the centre of the liberation struggle,” Zuma said at the time, addressing the official opening of the House of Traditional Leaders at Parliament.

He added that government is considering a pre-colonial audit of land ownership, use and occupation patterns should be undertaken.

"Once the audit has been completed, a single law should be developed to address the issue of land restitution without compensation. The necessary constitutional amendments would then be undertaken to implement this process,” said Zuma.

Also in March, ANC spokesperson Zizi Kodwa said the party will accelerate the transfer of land to the black majority to help reduce inequality and avert future protests.

READ: Zuma repeats call for land expropriation without compensation

Section 25 of the Constitution requires just and equitable compensation to be paid in the event of expropriation. Currently the Valuer-General’s regulations that will be applied in respect of land acquisition by the state in SA are being awaited.

Crosby explained that in many countries compensation is also payable where the state does not acquire the property, but the owner's rights are undermined in such a way that the value of the property is reduced or the owner loses rights in respect thereof.

Breach of rights

"Any deprivation of property without compensation constitutes a very serious breach of an individual’s rights," said Crosby.

"However, there remains some uncertainty as to how exactly our courts will deal with the concept of just and equitable compensation."

She pointed out that in 2009, the Food and Agricultural Organisation (FAO) of the United Nations published a guide on international best practice for expropriation. It stated that forced acquisition of property could be abused and that measures should be in place to prevent this.

The UN guide requires, among others, clear and transparent procedures for forced acquisition of property and compensation that will ensure that the affected persons are not worse off after expropriation than they were before.

It further states that affected persons must not only be compensated for the loss of land, but also for improvements made and for the disruption that accompanies expropriation.

Crosby said international authority and best practice dictate that people who are expropriated may not be worse off after expropriation than they were before.

At the same time, deprivation without compensation is currently possible, but Crosby explained that regulatory steps will usually be utilised and it will only be constitutional if it is not arbitrary. This is because the Constitution prohibits arbitrary deprivation.

A new bill that will set out unique land ceilings for various districts in the country was published in the Government Gazette for public comment in March. Specific criteria will be used to determine unique land ceilings for various districts. The bill also makes provision for the establishment of a land commission.

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