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.