The Case Of Land Expropriation Without Compensation: Arguments For And Against

The issue of land expropriation without compensation continues to be hotly debated – having generated unprecedented debate nationally: it is largely polarised between supporters and critics. Two broad views prevail. One is that the current framing of the constitution has not been fully exhausted and the possibilities for expropriation within the context of law have not been fully reckoned with.The other view argues that the constitution’s property clause read together with the limitations of rights clause makes expropriation an extremely burdensome and litigious option.

It’s been nearly ten months since parliament gave the green light to explore a land expropriation without compensation proposal, but how far down the line have we come? After 6 weeks, 32 public hearings and meetings, the Constitutional Review Committee (CRC) returned to parliament, to begin with, the processing of public submissions and to deliberate extensively on the matter. The CRC was mandated to gather the views of South Africans on the review Section 25 of the Constitution and other clauses necessary to make it possible for the state to expropriate land in the public interest without compensation.

On the 15th of November, in its report to Parliament, the Committee adopted a recommendation that the Constitution should be amended to allow for expropriation without compensation. However, this recommendation only set in motion another process that could eventually lead to an amendment of the Constitution. While the country awaits the outcome, in hindsight – let us revisit the arguments raised during public submissions on this motion.

Arguments against:

Critics of land expropriation without compensation argue that this advocacy to amend the Section 25 of the Constitution seeks to assert that Section 25 is the reason for the staggering pace at which land reform is happening. They assert that the perception created about government’s hands being tied by the constitution to expropriate is based on fallacious premise. They argue, in fact, the lack of political will is the major constraint.

They further assert that the government has chosen not to evoke the constitutional provisions to bring about land reform; that it has willingly interpreted the market value as the starting point for compensation of any expropriation ignoring factors listed in Section 25(3).

To further emphasise that land reform has never been of priority for the ruling party, critics argue that the land reform has been happening at a relatively slow pace because the land reform budget has been very small, at less than 1% of the national budget to as little as 0, 4%.With budget declining, the rate of delivering access to land has declined faster, as available funds are diverted to purposes other than acquiring land and securing rights.

Thus, they argue, budget allocations to land reform is generally a severe constraint in acquiring land  especially as land prices are generally determined using the ‘willing-buyer willing-seller’ and the market price approach. These critics argue, that if the formula in the constitution is invoked in determining market value, using ‘just and equitable compensation’ as stated in Section 25(3), this could result in values that are below market value and zero compensation.

To illustrate their view, they raise the Mala Mala court judgement. In this case there was an evaluation difference with a white landholder who insisted on a compensation above a billion rand. However,when the case was set to go to constitutional court for arbitration, the government minister decided to withdraw the case and pay the full amount as asked by the owner. The critics feel that this was a missed opportunity that the state could have utilised to test the constitutional provision and lobby to set a progressive precedent. Therefore, critics argue, the government has actively chosen not to utilise provisions in Section 25 of the Constitution. Instead, they argue, white landowners have benefitted twice: privileged under apartheid and now paid exorbitant amounts by the state when Section 25 has guarded against, considering past subsidy and support.

Arguments for:

Proponents of land expropriation without compensation move from the premise that the constitution, as a by-product of a negotiated settlement, exists as a political instrument for people to use in order to wage socio-economic struggles. They are concerned that the jurisprudence around property rights and the constitution’s framework is leaning towards a market friendly approach as evidenced by its entrenchment of the right to private property.

Contrasting the view around the lack of political will by the governing party, proponents of an amendment, argue that it is a deliberate political decision which underpins the current wording legal wording and interpretation of the Constitution with regards property and expropriation. They argue that the constitution’s property clause read together with the limitations of rights clause currently deliberately makes expropriation an extremely burdensome and litigious option. Essentially, the constitution, it is argued by these critics, entitles existing landowners to defend their private property against governments attempts to balance their rights with social welfare and equity needs.

Proponents of this view further argue that the adoption of the ‘willing-buyer willing sell’ model of land reform was not an aberration. They argue that it rests very comfortable with the constitution, especially with respect to its provisions for compensation. To demonstrate how the legal and the political dimensions are intertwined and also reveal the limits of a legalistic emphasis and approach to reform, proponents refer to the case of the Dikwanye community. This community is scattered around the country and they were claiming their land back under the restitution programme of the democratic government.

The law prescribes that the negotiations between the property owner and the Land Restitution Commission be held. However, with the Dikwanye community, proponents argue that the valuations were faulty and based on inadequate evidence. Then, when negotiating parties failed to reach an agreement about the value and the price of the farm – the state issued an expropriation order which it later withdrew under legal pressure from the landowner. Proponents argue that this demonstrates that the right to property, understood by many as an exclusive domain, is firmly entrenched both in the constitution and in the general legal framework of the state.

Moreover, proponents argue that current constitution is flawed at conceptual level as well. In terms of restitution, they argue that if land reform is intended to redress past land dispossessions, then limiting people to claiming for land they were dispossessed of only from 1913 legitimises pre-1913 land dispossessions.

Those are some of the arguments the critics and proponents of land expropriation without compensation put forward.

Towards conclusion:

The committee to parliament report recommended that “section 25 of the Constitution must be amended to make explicit that which is implicit in the Constitution with regards to expropriation of land without compensation as a legitimate option for land reform so as to address the historic wrongs caused by the arbitrary dispossession of land and, in so doing, ensure equitable access to land and further empower the majority of South Africans to be productive participants in ownership, food security and agricultural reform programmes”.

On the 4th of December, National Assembly has voted in favour of adopting the report by the Constitutional Review Committee which recommends the amendment of Section 25 of the Constitution to allow for the expropriation of land without compensation.

Currently section 25 of the Constitution says the following must be taken into consideration in determining “just and equitable” payment which reflects “an equitable balance between the public interest and the interests of those affected”: 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 beneficial capital improvement of the property and the purpose of the expropriation.

Apart from the cry of inadequate public consultation by AfriForum, the report by the Committee has also been criticised for not attending to the Parliament’s High Level Panel Report. The HLP looked into areas of legislation since 1994, and assessed the degree to which the executive has actually implemented those laws. It is argued by critics of land expropriation without compensation that this HLP report should serve as South Africa’s best guide to what should be done about land reform.

This panel was chaired by the former president Kgalema Mothlanthe. It commissioned multiple studies across the country. It heard evidence from experts and conducted hearings from ordinary people in every province. It said the problem with land reform was not the Constitution. However, there has been no policy direction, no political leadership, almost no budgetary allocation, massive mismanagement, institutional incapacity, and corruption. The panel further suggested that there should be a new piece of legislation stating what justice is and what equity is across all categories: redistribution, restitution, tenure reform.

As things stand, provisions in the constitution will be expanded to include that land can be expropriated without compensation. However, further legislation will first have to be enacted – going through the whole parliamentary process – to effect to the constitutional amendment.