Context matters, so let expropriation be tested in courts first


Elmien du Plessis

Whenever I am despondent about the world, I go and sit in the Constitutional Court, my hope giving place. I have a similar feeling here today. Maybe it is because the things that both have in common are the Constitution and democracy-in-action, both very important reasons why we are here today. The very basis that this conversation is built on.

So, I stand here, recognising, and acknowledging, the injustices of our past, and I believe that South Africa belongs to all who live in it, united in our diversity. I stand in front of this committee today, proud to be able to exercise my constitutional right of participating in our constitutional democracy.

But, let me start. In 2008 I finalised my doctorate in Law on "Compensation for Expropriation under the Constitution". My doctorate looked on the tension between ownership protected from government interference in Section 25, and the government's power to expropriate property as sanctioned by the same section, and focussed on the role of compensation in balancing that tension.

My doctorate warned that if we are fixed on a pre-constitutional idea of expropriation, where the compensation standard is "market value", then we might have trouble reaching the post-apartheid transformation in property law in general, and the way it manifests in compensation for expropriation in particular. My question was: how do we deal with this tension? What do we do?

During my study I found that the constitutional democracy, at that time, did not have a great impact on compensation-for-expropriation, since our legal culture of compensation is fixated on market value. Since legal culture is a sort of invisible undercurrent that shapes thoughts and believes, non-transformation cannot be blamed on the Constitution. It needs a critical self-reflection and an acknowledgment of the restraints of participants. It needs a conscious re-thinking and re-imagining of how we can approach compensation.

The study provided some theoretical guidelines for a transformative interpretation and implementation of Section 25 and concluded that what is needed is a series of test cases in the court, where courts will consciously have to grapple with the facts of the case before them, mindful of the new compensation standard of just and equitable. In the absence of that, my doctorate warned, we will be left with a compensation culture fixated on market value and an uncertain future of expropriation law.

Now, I am no prophet, but amongst the euphoria that my research is finally relevant, and I get my day in Parliament to share it, I was grinning the other night when I read that last paragraph again. Apart from the state not really using its expropriation powers to acquire land for land reform, our courts also did not have a proper chance to grapple with the question. And yet, here I stand in front of parliamentary committee to answer one question: should the Constitution be amended in order to establish the future land tenure regime that is needed? Yes, or no?

Section 25 need not be amended

It is my submission that Section 25 need not be amended to facilitate land reform, and that it is not necessary to make changes to the Constitution to achieve just and equitable redistribution of land. I support the finding and suggestions of the High-Level Panel Report, that need not be repeated here, but that I urge Parliament to take seriously and to implement.

We need not change the Constitution, because the Constitution demands an interpretative framework in which the property clause promotes values of an open and democratic society, a balancing of the protectionist Sections 25(1) – (3) and the transformative sections.

This balance seeks to avoid a zero-sum game, and is a creative tension that should be balanced and reconciled as far as possible. This might mean that in some instances the creative tension will balance at R0, but it will avoid a situation where R0 compensation is paid in all circumstances. Context matters.

Expropriation not an end itself

But expropriation is only one tool that the state can use to acquire property, and not an end in itself. And this make the yes/no question a limiting question. The discussion on this should also include a discussion on who should benefit from redistribution.

What land should be targeted? What should it be used for? How must this be done in a constitutional democracy? These are pertinent questions in deciding whether an amendment to Section 25 will really be the panacea to solve the problems of land reform in the past 24 years.

We need to ask what will happen to the urban land question, and how do we deal with tenure upgrades in both the urban and rural areas. In our written submission we discuss a land administration system that can oversee all aspects of land administration. A system that considers a diversity of rights that can be elevated to a form of ownership or strengthened rights.

These rights, like the so-called invisible customary law rights, are already recognised in the Constitution, and should be reflected in a land administration system. And these workable solutions are not dependent on either a yes or a no answer to the question on whether the Constitution must be amended or not. It is dependent on people pulling up sleeves and doing.

Most of what we want done can be done in expropriation legislation

Another aspect that is touched on in our submission is the Expropriation Bill. The bill was withdrawn last week in order to not create a parallel process with this committee, which I think was a wise move.

Most of what wants to be done or clarified can be done in expropriation legislation. Should Parliament want to specify instances in which land can be expropriated with no compensation, or should they want to place conditions on such expropriation, this can be done in terms of legislation.

A constitution is not couched in detailed language, because it is a document that is meant to last, and because it should be flexible to allow for the changing socio and economic circumstances. It is our framework in which things must be done, but it is not the document that does the things. How things should be done is set out in legislation.

Once the Constitution is amended to specify issues such as when property can be expropriated without compensation, this is then fixed and inflexible. So, this is our strongest submission as a bunch of lawyers: leave the Constitution as it is, use it, and let legislation deal with the technicalities.

No perfect solutions, only better solutions

But, there are no perfect solutions for the land question in South Africa. There are only better solutions. And we as a country must figure out what the best option forward is.

For me, this motion, the hearings and these presentations presented us with an ideal opportunity to place the land question in the public discourse, so that we, the people of South Africa, can re-imagine the future of this country.

It resurrected an issue, and it presented us with an opportunity of self-reflection to ask what our role can be in solving the land question. We see ordinary citizens rise to the conversation, we see organised agriculture extending a hand. People line up in the "thuma mina" line.

In a world where we are so concerned with outcomes (must the Constitution be amended or not?) maybe we can ponder the process. This process has had value in itself already. It gave people a voice. It showed us our fault-lines, it highlighted where we have hard work to do as a nation. It put the issues of land in the public.

It showed that, we, the people of South Africa, want land reform to work. We, the people, want this country to belong to all who live in it, united in our diversity.

In this outcome driven world, it is understandable that the committee wants to return to Parliament, indeed it must, in terms of the motion, to report back, to show that it has done something. An outcome. A proposed amendment, even if it is just cosmetic, if I read the mood right.

But I would argue that there already was an outcome, and that that outcome was the process itself. It placed the issue on the table, it made the land question priority, it drew the lines and it has focused multi-role players on finding solutions within the current framework.

It reminds me of the quote by John Schaar: "The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and the destination."

Thank you.

- Elmien du Plessis is associate professor in Law at the North-West University. This was her oral submission to Parliament Constitutional Review Committee on land expropriation without compensation.

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