Land reform must be constitutional

Restitution of land concerns the painful and emotive subject of colonial and apartheid era land dispossession.  And it is understandable, because of the socio-economic impacts of this action: the ejection from homes; the forcible loss of properties; severing from kin, friends and neighbours; the wrenching of those affected from their beloved connection to place and community; immeasurable emotional and psychological trauma; and the searing bitterness of it all.  Concomitant to this was an untold assault upon the dignity of those at the receiving end of this distressing treatment. 

There have been several significant discussions about expropriation without compensation.  The President also authorised the Specail Investigation Unit to investigate allegations of corruption and misappropriations of funds related to land distribution in the Department of Rural Development and Land Reform. 

Section 25 of the Constitution, better known as the property clause, underlines the need for the redress and transformation of the legacy of grossly unequal distribution of land.  The property clause is found in the Bill of Rights.  The relevant sections are:

(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.

(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 or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected…”

In the Certification of the Constitution Case (1996), the Concourt certified that the property clause complies with the test of “universally accepted fundamental rights” set by Constitutional Principle II.  It further stated that several recognised democracies provide no express protection of property in their constitutions or bills of rights.  Some constitutions formulate the right to property simply in a negative way, restraining the state from interfering with property rights.  Other constitutions express the right in a positive way, entrenching the right to acquire and dispose of property.  The property clause, although phrased in a negative formulation, appears to be widely accepted as an appropriate formulation of the right to property.  Protection for the holding of property is implicit in section 25. 

In Government’s efforts to redress land, the Restitution of Land Rights Act came into effect in 1994.  The main object of the Act was the restitution of land rights or equitable redress.  Citizens could lodge land claims only up to 31 December 1998.  The Restitution of Land Rights Amendment Act was signed into law in 2014. The Act re-opens the window for the lodgement of land claims to 30 June 2019. 

In the Concourt Case, of the Land Access Movement of South Africa vs the National Council of Provinces (2016), the applicants claimed that that there was insufficient consultation with the public on the legislative process of the Restitution of Land Rights Amendment Act.  The Concourt declared the Act invalid as the public participation in the provincial sphere did not pass constitutional muster.  Parliament comprises of two Houses, namely: National Assembly (NA) and National Council of Provinces (NCOP).  Both the NA and NCOP has to involve the public in its law-making process.  The NA committee held a thorough three‑month public consultation tour to discuss the Bill in all the provinces, whereas, the NCOP completed public participation through the Provincial Legislatures in one calendar month.  The Concourt highlighted that public participation is central to representative and participatory democracy.  The re-opening of the land claims process is of paramount importance and public interest.  It was crucial that there be reasonable public participation in the legislative process.  The Provincial Legislatures are closer to and more in touch with the people and better placed to reach the nooks and crannies of the country.

The Expropriation of Land Act (1975) governs expropriation of land presently.  The Act predates the Constitution and is therefore not in line with the constitutional requirements of expropriation.  However, government has to build infrastructure and in doing so, has continued to expropriate property.  There are several case laws as to how the Concourt interpreted the current but out of date Expropriation Act and the property clause. 

In the case of Hafferjee Family Trust v Ethekwini Municipality Case (2011), the Concourt noted that the historical context must be used in interpreting of the property clause.  That is, the protection of property as an individual right is not absolute but subject to societal considerations.  The Constitution provides for safeguards to ensure equitable compensation.  The Concourt concluded that the property clause does not require that the amount of compensation and the time and manner of payment must always be determined by agreement or by a court before expropriation.  It further concluded that, generally, the determination of compensation before expropriation will be just and equitable.

As the present Expropriation Act is not in line with the constitution, the Department of Public Works published the Expropriation Bill in November 2007 for public comments.  The Bill was referred to Parliament in 2008.  One of the contentions was how the value of property will be determined.  The Bill was not finalised and would have lapsed at the end of the third Parliament.  The Department of Public Works again published the Expropriation Bill for public comment in January 2015 and referred the Bill to Parliament in early 2016.  The Bill is more comprehensive as to how the value of the property is to be determined.  Parliament finalised the Bill in May 2016 and referred it to the President for assent.  The President referred the Bill back to the Parliament and highlighted the issues raised around public participation on the NCOP.  The President further pointed out that the Bill may impact land under traditional leaders and therefore recommended that Parliament refer the Bill to the National House of Traditional Leaders.  The Bill is presently with the National House of Traditional Leaders.

Many statements have been about expropriating property without compensation and that the Constitution must be amended to make provision for this.  An amendment to the property clause will be an amendment to the Bill of Rights.  Such an amendment will require at least two thirds majority.  The Concourt will have the final say as to the constitutionality of a constitutional amendment and it will examine the amendment against the Constitutional Principles.

The mood around land reform is becoming more and more impatient.  Given our history of land dispossessions, much emotion is attached to the discussion around land reform.  Threats of constitutional challenges seems to have protracted the finalisation of legal instruments aimed at bringing about land reform.  Yes, land reform must be expedited but it must be constitutional.