The enduring saga of Land Reform and Expropriation

In April 2018, the Joint Constitutional Review Committee of Parliament called for written public submissions on the review of Section 25 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and other sections where necessary, to make it possible for the state to expropriate land in the interest of the public without compensation. The due date for these submissions was 30 May 2018, which was soon thereafter extended to mid-June 2018.

According to news broadcasts, Mr Vincent Smith, the chairman of the Constitutional Review Committee, stated that it had received more than 722 000 submissions which evidences the national importance of this issue. He said this would be the first time in more than 20 years in Parliament that 722 000 submissions were received over a single issue. Parliament also extended the deadline for the Committee’s report back on whether to amend Section 25 of the Constitution on property rights, from 30 August to 28 September 2018.

From a legal stand point, a number of academics and legal practitioners have shared their views and insights on the matter. Former Constitutional Court Judge, Albie Sachs J is of the view that there now exists an urgent need for a new Act of Parliament to be promulgated to accommodate land expropriation without compensation. He advises that the proposed new Expropriation Act should include a clause dealing with expropriation without compensation, but that it would have to indicate under which circumstances this should be done.

Be that as it may, based on the Parliamentary debate in February 2018, it appears that the cornerstone issue concerning expropriation without compensation pertains not so much to the compensation aspect of the matter, but is more (if not all) to do with the expediency of land reformation since the dispensation of our constitutional democracy. In this regard, perhaps it can be said that if the issue is the length of the time it is taking to bring about land restitution, then perhaps the exploration of measures to expedite this process should be the focus of the saga and not so much the requirement of compensation and drastic amendment to the Constitution.

Section 25(2)(b) of the Constitution provides that “subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court”. Accordingly, the determination of the amount, time and manner of payment of the compensation may be the elements that would need to be practically investigated and expedited. It has been said that perhaps the implementation of our already existing laws and procedures concerning land reformation and expropriation needs to be addressed as opposed to the laws themselves.

Another point of consideration: Compensation and the reallocation of land has been quite a mammoth task to address over the last 25 plus years. Politicians, academics, the Legislature etcetera are all eligible to canvass theoretical solutions to this issue based on the statics of land reformation in South Africa, in order to ultimately bring about equality and fair land distribution among the previously disadvantaged. However, practically speaking, we may be overlooking a crucial aspect in our endeavours in addressing this issue, being the voices at grass-roots level. After all, the need for land reformation/redistribution arises from this very level, and not from the top the structures of Parliament or the Government for that matter. The effect of hearing from these affected individuals could add an invaluable and meaningful dynamic to search for land reformation solution. Perhaps the grass-roots level population should be encouraged and assisted in making their voices heard and be assisted in participating in this debate.

Now that all written submissions have been received, public hearings on this mooted issue of expropriation without compensation and land reformation will start at the end of June 2018 and will be hosted by the Constitutional Review Committee as they travel to each of the nine Provinces to do so. The tour will be concluded in the Western Cape during the month of August 2018.

The saga continues in anticipation…

Prepared by:

Whitney Maclons | LLB | LLM (Mercantile Law | Litigation Department

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)