Land Expropriation - A Legal Perspective


An article by Karien Hunter

Property Lawyer, AMC Hunter Inc.


Our Constitution - the current position:

SECTION 25 of our constitution protects against the arbitrary deprivation of land, and simultaneously allows for the expropriation of land:

Section 25 (1): “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

Section 25 (2): “Property may be expropriated only in terms of law of general application -
(a) For a public purpose or in the public interest; and
(b) Subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected of decided or approved by a court”.

Section 25 of the Constitution thus does not guarantee private property. What it does, is to set out the requirements that must be met when the government interferes with private property rights. Most countries, including South Africa, allows for the expropriation of land - without which the state would not be able to develop infrastructure such as the building of roads and dams.

In terms of the Expropriation Act of 1975 expropriation happens when an expropriation notice is served on a land owner. As long as the state can show that the land has been expropriated for a public purpose (such as the building of a dam, and in certain circumstances, land reform) the expropriation as such cannot be challenged - only the amount of compensation payable can be challenged if such compensation is not ‘just and equitable’ which is a requirement under Section 25.
In terms of our constitution: “The public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources... The state must take reasonable legislative and other measures within its available resources to foster conditions [that] enable citizens to gain access to land on an equitable basis.”


The purpose of land reform in terms of our Constitution is thus to promote land ownership, and not to undermine it. Where a deprivation of land happens in the interest of land reform, such deprivation cannot be arbitrary and must be done in accordance with current legislation (such as the Restitution of Land Rights Act (No. 22 of 1994) which goal is to offer a solution to people who had lost their land as a result of racially discriminatory practices such as forced removals.
The following must be taken into account in determining what is ‘just and equitable’ compensation:
• The current use of the property;
• The history of the acquisition and use of the property;
• The market value of the property;
• The extent of direct state investment and subsidy in the acquisition and improvement of the land;
• The purpose of the expropriation.

The ownership of land has thus never been absolute and can never be. The amount of the compensation however must be “just and equitable”, reflecting a balance between the public interest and the interests of the landowner.


Simbithi - top_pic.jpg

Can the Constitution be amended to allow the State to expropriate land without paying any compensation?

The Constitution must be read as a whole, and the Constitution itself directs the manner in which it must be interpreted If an amendment to the Constitution infringes any of the Rights as set out in the Bill of Rights, our Constitutional Court will have the final say and can declare such amendment or proposed amendment, as unconstitutional – for example, the Bill of Rights stipulate that everyone is equal before the law and has the right to equal protection and benefit of the law, and includes the full and equal enjoyment of all rights and freedom. The state may also not unfairly discriminate on the basis of race or social origin.

In terms of Section 36 of the Constitution, the rights in the Bill of Rights may be limited only in terms of law of general application (that is, laws passed by parliament) to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

Except as provided in subsection (1) above, no law may limit or restrict any right entrenched in the Bill of Rights. 

In interpreting the Bill of Rights, the Court must promote the values that underlie an open and democratic society based on human dignity equality and freedom, and must consider international law. When interpreting any legislation and when developing the common law or customary law the court must promote the spirit and purpose of the Bill of Rights, and must be consistent with the Bill of Rights. Parliament may also not pass legislation which is in conflict with our Bill of Rights.
The Constitution can only be amended by a two-thirds majority in parliament. However, the Constitutional Court will have the final say as they are the supreme authority on any legislative amendments, including amendments to the Constitution once such amendments are challenged in court.

Any amendment to our Constitution must thus affirm the democratic values of human dignity, equality and freedom which is enshrined in our Bill of Rights. A change to the constitution to do away with compensation upon the expropriation of land, cannot be reconciled to such values and therefore cannot succeed the final scrutiny of the Constitutional Court.

Land reform should enhance, rather than detract from private ownership of property. In terms of Section 25 (6) of our Constitution, the State is obliged to pass legislation to enable people whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices, to obtain full title to such land. This makes for an interesting debate in respect of land owned by, for example, the Ingonyama Trust which makes up 32% of land in KwaZulu Natal. 


Disclaimer:
this article is not meant to be exhaustive, and is a summary of the constitutional provisions relating to the protection of property rights and land reform.


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