Taku's Legal Shabeen

Land dispossession during the colonial era and the decades of apartheid rule have produced a highly unequal pattern of land ownership and widespread rural poverty in South Africa. The Constitution of the Republic of South Africa, 1996 (the Constitution) is identified as a transformative Constitution that seeks to reform the country from a past characterized by conflict, inequality, and injustice, to a future founded on the recognition of human rights, substantive justice in social, economic, and political realities and the development opportunities for all South African citizens.Expropriation of land is one of the mechanisms that the Constitution provides to facilitate land redistribution. Expropriation is defined as the power of the state to expropriate, take away, or acquire property for a particular public purpose.  Expropriation is also an original mode of acquiring property.  However, it is the interference with the use, enjoyment, or exploitation of property in respect of the person having title or right to or in the property. Section 25(2) of the Constitution provides that “Property may be expropriated only in terms of a law of general application (a) for public purposes or public interest and (b) subject to compensation, the amount of which and the time and manner of payment of which either have been agreed to by those affected or decided or approved by the court. Therefore, land expropriation is legitimate if the requirements in section 25(2) have been satisfied. Below  I will shed light on these requirements. 

 (a) Law of general application This means that expropriation in South Africa is lawfully valid if it is expressly authorised by legislation that specifically empowers a minister or to expropriate particular property for a specific purpose. This requirement must be read with section 25(5) of the Constitution which states that “the state must take reasonable legislative measures, within the available resources, to foster conditions which enable citizens to gain access to land on an equitable basis” Therefore,  for a valid expropriation for land redistribution the state must enact legislation that gives effect to such. This requirement prevents disqualifies discriminatory laws, the limitation of property rights s must be both procedurally fair and not arbitrary in its substance. 

(b)Public Purpose or Public Interest
Expropriation of land must be for a public purpose or public interest, meaning that land may be expropriated for the construction of roads, hospitals, schools, etc. At this requirement, the Constitution of South Africa unveils its transformative nature by stating in section 25(4) public interest includes the nation’s commitment to land reform to bring equitable access to all South Africa’s natural resources. Therefore, land in South Africa can be expropriated to provide access to land to most black people who were deprived of land during colonisation and apartheid.

(c)Compensation
Section25(2)(b) of the Constitution provides that for a valid expropriation there must be compensation. Therefore, expropriation without compensation is not permissible. The Constitution provides that “just and equitable” compensation must be paid to the affected party considering (a) the current use of the property, (b) the history of the acquisition and use of the property, (c) the market value of the property, (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvements of the property, and (e) the purpose of the expropriation. This is where the debate whether the South African Constitution allows for expropriation without compensation. Some authors argue that considering that the Constitution aims for transformation based on substantive equality to archive an egalitarian society, there “just and equitable” compensation as stipulated may allow for zero compensation special cases such as for land redistribution considering the injustice which took place during colonisation and apartheid. On the other hand, some scholars argue that compensation must be paid, it must be paid based on the market value of the property then later consider other factors such as land reform to adjust the market value, but nil compensation is not permissible.

This issue of expropriation without compensation has been heard by the courts of law. The Supreme Court of Appeal in Uys NO v Msiza agreed that market value is the amount of compensation, therefore compensation below the market value is invalid. The court ruled that compensation based on the market value determined by the property value was valid and the valuer had already considered other factors when determining the market value. This decision is criticised because it places market value at a vantage over other factors listed in section 25, the constitution provides that all factors must be considered equally were applicable. I think the court was wrong, it should have considered again the market value of the property, the history of property acquisition, and the redistribution purpose of the expropriation. By automatically accepting the property valuer’s findings, the court failed to oversee the matter. Judicial oversight is a prerequisite in matters of expropriation. In Mhlanganisweni Community v Minister of Rural Development and Land Reform where the Mhlanganisweni community claimed the land on which the Mala Mala game lodge was built. It was proved that land was lost through colonial dispossession. The court agreed with the decision in Uys NO v Msiza, it held that it was not “feasible” to allow zero compensation, market value must be paid. The court emphasised that the fact the expropriation was for land reform did not warrant the reduction of the amount of compensation to be reduced from a market value.

Therefore,  with the cases above it is clear that the current South African legal system does not allow expropriation without compensation even in special cases of land reform. I criticise the Constitution its wording is ambiguous. The words “just and equitable” compensation is debatable. Zero compensation may be “just and equitable” especially where land was taken through violence and discriminatory laws which violated human rights. On the other hand, I advocate that “just and equitable” compensation should also consider the rights of the affected party. As a remedy, I agree with the courts that start by calculating the market value of the property since it is easily quantifiable then consider the colonial and apartheid history of how the property was acquired. If the property is proved to have been acquired unjustly, there must be a reduction of the compensation amount from the market value. This method may facilitate equal access to land at the same time protecting the current landowner’s rights. Currently, the state is using the issue of compensation as an excuse for not providing land to its citizens stating that it does not have resources to compensate expropriated land.
By Takudzwa MatekweLLB (cum laude), University of Pretoria