South Africa is covered by a cloud of confusion on whether section 25 of the Constitution should be amended to allow for expropriation on land without compensation or whether it already permits such. There are proponents and opponents of constitutional amendment.
The preamble of the Constitution provides that the Constitution is adopted to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. Section 237 of the Constitution orders that all constitutional obligations must be performed diligently and without delay.
Importantly, section 7 of the Constitution instructs that “the state must respect, promote and fulfil the rights in the Bill of Rights”. Section 9 provides that “everyone is equal before the law and has the right to equal protection and benefit of the law, and that equality includes the full and equal enjoyment of all rights and freedoms”. To fulfil this right, this section further empowers the state to take legislative and other measures to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination to promote the achievement of equality.
Section 25 of the Constitution stipulates that “no one may be deprived of property except in terms of the law of general application, and no law may permit arbitrary deprivation of property”. This means that people will not be denied property (land and that colonial and apartheid arbitrary dispossession is proscribed. Section 25 permits expropriation of property (land) for a public purpose or in public interest subject to compensation agreed to by affected parties or as decided or approved by a court. The compensation amount must have regard to all circumstances of the property including current use, history of acquisition and use, subsidy in acquisition, improvements and market value. Public interest includes the nation’s commitment to land reform, and bring about equitable access to all resources. Section 25 directs that “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 equitable basis”. It also provides for security of tenure and restitution of property.
Reaffirming the significance of land reform, expropriation, restitution (restoration), security of tenure and access to land, the Constitution underlines that “no provision of section 25 may impede the state from taking legislative or other measures to achieve land, water and related reform, in order to redress the results of past discrimination, provided departure from the provisions of this section is in accordance with section 36(1)”.
In this context, section 36(1) prevents arbitrary deprivation of land by the state and on the other hand estops unjust enrichment by those in possession of land taking into considering the circumstances such as history of acquisition, use of property and improvements.
The above constitutional provisions show that the state is empowered to take measures to expropriate land with or without compensation guided by the relevant circumstances. Therefore there is no need to amend the Constitution.
To complicate things even more, some citizens demand access to land and also that the state arbitrarily take all land without compensation. It should be remembered that departure from providing compensation, if any, can only be guided by the certain circumstances to avert arbitrariness.
To heal past divisions, achieve social justice and fulfil human rights, the state must, by passing legislation, foster conditions that enable citizens to gain access to land on an equitable basis; redress results of past racial discrimination; and advance persons disadvantaged by unfair discrimination to acquire land.
The questions are whether the state, diligently and without delay, performed its constitutional obligation, to redress results of past racial discrimination, and foster conditions for citizen to gain access to land? Does failure by the state to pass legislation warrant amendment of the Constitution? Did relevant Chapter 9 institutions, in their individual capacity, effectively exercise their powers to recommend to the appropriate functionaries to diligently and without delay pass legislation to redress results of past racial discrimination and for citizens to gain access to land? If so, what has been the impact?
Relevant Chapter 9s need to jointly deal with the issue of land as a focus right to ensure that all remedies provided by section 25 are exhausted. And have a joint education programme on land.
South Africa needs well-drafted legislation to address the issues of access to land; redress results of past racial discrimination; distribution of land in urban and rural areas; determine the amount of land to be owned by a citizen(s) for residential, agricultural, cultural/religious, leisure, and other purposes; elaborate on and define the conditions/circumstances for expropriation of land with and without compensation; the role of traditional leaders on land acquisition; answer the question of sale of communal land traditional leadership to community members.
• Kgositoi Aubrey Sedupane is an advocate of the high court of South Africa