There is no political will on land redistribution, says expert

With the land debate set to dominate the South African political agenda for some years, an expert yesterday told a two-day conference in Cape Town that expropriation has not effectively been used as a tool to achieve equity.

Addressing the gathering on land, hosted by the Stellenbosch Institute for Advanced Study, South African research chair in property law at the University of Stellenbosch Professor Zsa-Zsa Boggenpoel said the policies and laws to ensure land redistribution are not always clear enough to sufficiently ensure reallocation of property rights in South Africa.

“There is also – in some respects – lack of political will to ensure that expropriation is a serious option in order to effect land redistribution.”

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Her view has confirmed what other land analysts have endorsed: transformative constitutionalism and land reform have failed to bring about redistributive justice substantively and meaningfully.

As public discourse has in recent years been dominated by the land question, there have been debates about the need to amend the property clause, Section 25 of the Constitution, allowing for expropriation of land without compensation.

A new expropriation Bill could “potentially provide greater clarity regarding compensation”, Boggenpoel argued.

“It could do so by providing more indication of how the different factors relate to one another, especially if the Bill is to provide further guidance to the courts, regarding the relative importance of the factors listed in Section 25(3) – when it comes to calculating the amount of the compensation in land reform expropriations.”

She said the Bill could even do more than that.

“It could guide the courts in establishing when zero compensation should be a viable option. It has been argued that the idea behind zero or nil compensation for expropriation is essentially political.”

Boggenpoel said clause 12 of the latest Expropriation Bill aimed to replace Section 12 of the 1975 Expropriation Act.

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“The Bill is not perfect, but it does lay down the principles that must be adhered to when determining compensation – and in this respect, it is certainly more aligned with the constitution than the existing legislation.”

She said of particular interest to her were the examples listed in clause 12(3), which indicate the instances where nil or zero compensation are plausible.

“Is it important to note that there is still some discretion in terms of the Bill to determine when it may be just and equitable for nil compensation to be paid.

“Therefore, clause 12(3) is peremptory, but not exhaustive. This provision leaves the discretion with the expropriating authority to determine whether the compensation will be nil or more.