How the Constitution could be amended for expropriation without compensation

There are currently three proposals on how to amend Section 25 of the Constitution to allow expropriation of land without compensation – two from Parliament’s legal unit and one from the EFF.

The ad hoc committee tasked with amending Section 25 met on Wednesday for what committee chairperson Mathole Motshekga termed a “constitutional dialogue on land ownership”, chaired by former Constitutional Court judge and current inspecting judge of correctional services Johann van der Westhuizen.

Several stakeholders from the public sector had an opportunity to air their views.

Advocate Charmaine van der Merwe of Parliament’s legal services presented two options the unit had drafted on how Section 25 could be amended.

The first option she presented proposed amendments to subsections (2)(b) and (3) of Section 25 to read as follows:

(2)(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: Provided that a court may determine that no compensation is payable in the event of expropriation of land for the purposes of land reform…

(3) Where compensation is payable, 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, having regard to all relevant circumstances.

These subsections currently read as follows:

(2) Property may be expropriated only in terms of a law of general application;

(a) for a public purpose or in the public interest; and 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, having regard to all relevant circumstances, including:

(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 improvement of the property; and the purpose of the expropriation.

The second option involves the inclusion of a further subclause, which read:”(4A) Notwithstanding the requirement for compensation contemplated in subsections (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.”

In both cases, she also recommends that the following subclause be written into Section 25: “National legislation must set out the circumstances under which property may be expropriated without the payment of compensation.”

EFF chief whip Floyd Shivambu proposed the following amendment to Section 25:

“(1) The state, including Parliament, executive and judiciary carry an obligation to redress imbalances of the past through enactment of laws that will achieve redress and equitably redistribute all resources.

(2) Property may be expropriated without compensation (a) only in terms of a law of general application; (b) for a public purpose or in the public interest.

(3) The state should be custodian of all South Africa’s natural resources, inclusive of land, mineral resources and water, and relevant legislation should be passed to clearly define and contextualise state custodianship of natural resources.”

The committee will deliberate on these options next week. It is envisaged that a draft bill will be published by November 27. Thereafter it will go through the normal public participation process.

The committee expects to finish its work by March 31, 2020.

Last year, both houses of Parliament resolved that Section 25 should be amended to make explicit which is implicit in the Constitution to allow expropriation without compensation. This, on the recommendation of the joint constitutional review committee, which went on a vast public participation process.

The question before the ad hoc committee is therefore not whether the Constitution should be amended to allow expropriation without compensation, but to draft a bill that amends the section.

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