The South African government has shown obligation and action to eliminate the inequalities and injustices that find their origins in the historical periods by initiating a wide-ranging land reform programmes with a strong constitutional back up.276 A programme consisting of three pillars namely: restitution, land redistribution and tenure security.277 This was backed up by the provisions of section 25 of the Constitution278 which provides that, the state is under the constitutional duty to take "reasonable and other legislative measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis" and thus land redistribution.279
275 Mashele Rapatsa, Transformative Constitutionalism in South Africa: 20 Years of
Democracy. Mediterranean Journal of Social Sciences, 5(27 P2), 887, 2014. Retrieved from https://www.richtmann.org/journal/index.php/mjss/article/view/5158.
276 Kloppers et al. (n18).
277 Ibid note 276.
278 Constitution(n33).
279 Kloppers et al. (n18).
Whilst Section 25(1) of the Constitution provides that “no one may be deprived of property except in terms of the law of general application (this refers to policies and Acts promulgated for purposes for protecting land held by state for the benefit of the public), and no law may permit arbitrary deprivation of property” (this refers to unjust denial of access to land, therefore the law of general application cannot unjustly deprive people access to land).
These subsections (1) and (2) read together clearly highlight the state’s intentions to equal redistribution of land to the previously dispossessed owners. In instances where the land in question or claimed land is held for a better purpose or public interest, restitution in a form of monetary compensation will be given to the claimant, because the land in question is used for public interest and or the developments on such land serve a better purpose.
However, that does not mean the rights of people to have their land returned or restored is superseded by the developments made on the land. However, it means that such developments are positively contributing to sustainable development needed to better the lives of Black people.
It further entails that property may be expropriated only in terms of the law of general application and that such expropriation must be for the purposes of public interest. The aim for expropriation is to ensure that land is retrieved from the white minority and made available to the previously dispossessed owners and the public as a whole. The said public interest includes among others the nations commitment to land reform, which will bring into existence an impartial access to all South African’s natural resources. Although the provisions of these sections are under parliament’s debate for purposes of amendment in a way that expropriation would not be subject to compensation, such amendments would not have any effect on the initial purpose of expropriation and that means expropriation will still be for the purposes of public interest, that is making land available to everyone and that includes land reform (redistribution, restitution and land tenure) ensuring that everyone has access to land.
Moreover, it will inevitably ensure that the provisions of Section 25(7) as provided for in the Constitution are actively achieved. This will however be achieved as a result of state making land available for redistribution to the people through expropriation without compensation and without incurring any expenses. Therefore, the provision of Section 25(5) that provides that “the state must take reasonable and other legislative measures within its available resources, to foster conditions which will enable citizens to gain access to land on equitable
basis”, would be effectively implemented by the proposed amendment of section 25 of the Constitution. By ensuring that land is made available to historically disadvantaged people without incurring unnecessary costs of compensating land holders for land that was illegally taken away from black people. This will consequently ensure that funds and resources that are set aside for compensation be saved for only compensating developments not the value of land to be expropriated. As a result, the state can be at a better position to increase funds aimed for redistribution process and providing adequate post-settlement support services to land reform beneficiaries. Therefore, in this fashion the state resources will be optimally used for the purposes of ensuring productive use of redistributed land and consequently alleviate poverty amongst beneficiaries. This will not change the status of land reform in the Constitution but will ensure that land for redistribution is made available in order to achieve the objectives of land reform. And further ensures that there are enough resources to fund support services of land reform beneficiaries to embark on projects that will generate income and consequently contribute to the economy.
However, Sihlobo and Kirsten are of the view that expropriation without compensation which includes land for housing, retail and industrial use will not only impact food and agricultural production but, will destroy the asset value of a large portion of South African land.280 With regard to food and agricultural production expropriation without compensation can both have positives and negatives. The positives are that the state can save resources from acquiring land and divert such resources to assist land reform beneficiaries to farm productively. Whilst the negatives could be that the expropriation without compensation can threaten investors’ confidence and further negatively impact production of food crops by changing farmers from experienced white minority to inexperienced land reform beneficiaries. Sihlobo et al further assets that about 70 per cent of residential property transactions in South Africa involves freehold property (property that is inheritable, transferable and there are no restrictions on the rights of property).281 This generally means that majority of housing transactions include direct acquisition of private land. Therefore, the proposal of state acquiring ownership rights of all land without compensation would mean that consumers will lose the land component of the acquisition, while retaining ownership of the building structures.282 However, this is impractical considering the current property law
280 Wandile Sihlobo and Johann Kirsten, Economic Freedom Fighters strategy will destroy the asset value of a large portion of South Africa’s land, 30 July 2018 (Finding common ground,2020).
281 Ibid note 280.
282 Sihlobo et al. (280).
which provides that the land portion cannot be separated from the immovable asset such as building or a house, hence even the immovable property’s value is depended on the appreciation value of the land. In essence the implementation of expropriation without compensation will not only disrupt the asset value but will also create fragmentation in current existing property laws, particularly the provision of attaching immovable property to the land which the structure or building is situated on. Moreover, immovable property represents a largest investment for an average house hold in South Africa of which wealth is derived from.283 In as much as the state wants to speedily acquire and redistribute land to land reform beneficiaries, expropriation without compensation could remedy certain challenges such as limited resources aimed at acquiring land for redistribution but can also create more challenges such as disruption of asset value, if not properly legislated. Hence the need to invest in legislative drafting of policies that can merge a gap between the posed threats of food security, agricultural production and disruption of asset value in South Africa’s land reform.
Pieterse asserts that the inclusion of land reform programme in the Constitution necessitated an assortment of obligations upon the state regarding the essential and justifiable procedures it observes to effectively activate/set in motion land reform.284 Pieterse further alluded that the state cannot abandon land reform as it is constitutionally obliged to meticulously attend to it. He further made a notable reference that Constitution does not only provide responsibilities but also make provision of broad parameters of various programme’s necessary for the attainment of a holistic land reform.285 Consequently this implies that the adjustment and changes to land reform cannot take place outside the broad parameters of the Constitution. Hence, the proposed changes of expropriation without compensation have to start by the amendment of the Constitution (Section 25 of the constitution) before the said notion can be applied as a change within the land reform programme.
Expropriation of land requires that state must compensate the landowner for expropriating the land. This requires that state must advance monetary compensation in exchange of land to make available for the public. The compensation element limits the extent in which the state can make land available for redistribution, due to limited resources. Consequently, this
283 Ibid note 282.
284 Pienaar (n206).
285 Ibid note 284.
leads to slow pace of redistributing land and failure to implement support services to the few land beneficiaries who have received land. In order to accelerate delivery of land and ensure that there are enough resources to assist land reform beneficiaries with support services to aid them to use land productively, the state must cut down some costs. The state can start by reducing costs of compensating land holders when expropriating land. This can be actualized by ensuring that costs of compensating land holders when land is expropriated is clearly outlined in detail as to what exactly is the state compensating for. This can be achieved by ensuring that provision of compensation in Section 25 of the Constitution is amended first to give effect to new policies that will be drafted in line with the amendment to ensure that land is expropriated at no costs. Whereby compensation will be aimed at the improvements made on the land in question, not for the land that was forcefully taken from the indigenous owners.
Pieterse further asserts that having land reform embedded in the Constitution underscores or connects the links between Section 25 (property clause) and other related rights. He pointed out in detail that in this manner Section 9 (equality clause), Section 10 (right to dignity), Section 26 (right to adequate housing) and Section 30 and 31 (the right to culture and the right to belong in a cultural community) they also reverberate with actual operation of land reform programme. Thus, the realisation of these rights solely depends on successful implementation and enforcement of land reform programme.286 Therefore, it is of paramount importance that in application of land reform programme the provisions of the Constitution be upheld as they embed the core objectives of the initial purpose of the land reform programme and that is to redress the historical injustices and inequalities amongst Black people and restore their dispossessed land.