Adjudicating land compensation falls squarely in judicial realm

2020-02-03 16:49
ANC MP's Stan Maila, Lewis Nzimande and Vincent Smith addressing the media on the expropriation issue. (Jan Gerber, News24, file)

ANC MP's Stan Maila, Lewis Nzimande and Vincent Smith addressing the media on the expropriation issue. (Jan Gerber, News24, file)

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The week before last, the ANC proposed that the crucial task of deciding on "nil" (or other) compensation on expropriation should be taken from the courts and given to the executive.

Against this background, columnist Mpumelelo Mkhabela claims that "it would be foolhardy to give judges a role in administrative decisions such as determining land prices. It is simply not their job. It would be unconstitutional to require them to perform such tasks". 

READ: Expropriation: less emotion, more rationality needed

This claim is wrong in every respect.

The primary role of judges is to adjudicate on disputes - including disputes as to how much compensation should be paid on expropriation.

In keeping with this fundamental principle, Section 25 of the Constitution already expressly states that the courts must "decide" the "just and equitable" compensation to be paid if no agreement has been reached between the state and an owner facing expropriation.

Market value is a key factor in deciding on such compensation.

So judges do need to ascertain what comparable "land prices" would be.

But this does not mean, as Mr Mkhabela seems to suggest, that they have to start taking on the role of land valuation experts.

Under our adversarial legal system, judges rely on the relevant evidence put before them by both parties, which they must sift through and evaluate in making their rulings.

The evidence relevant to compensation on expropriation extends from the market value of the property to all other important factors, including those listed in Section 25(3) (the value of any prior state subsidy, for instance).

To claim that adjudicating on compensation is nothing but "administrative decision-making" on the part of judges is absurd.

The best way to ensure informed and impartial decisions on compensation is to leave the power to decide with judges, who have guaranteed institutional independence and should also have a strong personal commitment to objectivity.

Confining the courts to administrative review of bureaucratic decisions on the "quantum" of compensation, as the ANC has proposed, will not suffice.

The power to review is more limited than the power to decide, and is likely to leave many expropriated home (and other) owners without any effective remedy against the self-serving decisions of ANC cadres.

As I wrote in recent days, effective land reform is necessary in South Africa, but the Draft Constitution Eighteenth Amendment Bill of 2019 will needlessly undermine the property rights of all South Africans: from the 1 million whites with home ownership to the 8.5 million black, "coloured" and Indian families who own houses too.

It will also hurt the 17.5m black people with customary plots, and the thousands of black South Africans who have bought more than 6 million hectares of urban and rural land since 1991.

If the corruption and elite capture that already so taints land redistribution is to be curbed rather than further encouraged, it is vital that the courts retain the adjudicative role they already have under Section 25.

 - Dr Anthea Jeffery is head of policy research at the Institute of Race Relations.  

Read more on:    land  |  expropriation without compensation
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