LAND EXPROPRIATION WITHOUT COMPENSATION: LAND REFORM OR LAND GRAB?

The above question proves very topical in South Africa currently. The perceptions are that land expropriation is not good for the economy, amongst others. What we need to remember is that land expropriation without compensation is (and should always be) regarded as part and parcel of the government’s commitment to land reform in order to achieve food security, agricultural security and security of land.

It is important to note that the government’s policy on land reform is not focussed on land per se, but is, actually, in support of the restitution of property.

Sections 25 and 26 of the Constitution, Act 108 of 1996 is of importance when discussion land reform. Both of these clauses are contained in the Bills of Rights and are therefore rights bestowed on all of us.

Section 25 (Property) should always be read in conjunction with section 26 (Housing) in any discussion relating to expropriation without compensation. Section 25(1) sets out the constitutional parameters of the constitutional right to property:

“25(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.”

In unpacking section 25(1), it is important to note that the state may not expropriate property unless it is in terms of a statutory framework (law of general application) and only if in the public interest (as confirmed in section 25(2)). Land reform most certainly serves a public purpose.

Compensation is regulated in terms of section 25(3). The state should consider all relevant factors encompassing justiciability and equitability in furtherance of section 25(1).

Section 25(4) makes it clear that property is not limited to land. This is where section 26 (the right to housing) plays a pivotal role.  Section 26(2) reads:

“26(2): The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.”

This imposes positive action from the state to address the issue of land reform. The question beckons: how will this be achieved? This will be achieved either through security of tenure, land re-distribution or land restitution, the latter being the government’s focus.

There are, however, certain stumble blocks in the way of land reform. These are:

1. Institutional failures regarding the Land Claims Court. This court mainly focusses on evictions and labour tenants. Very little land reform has taken place;
2. Corruption;
3. The “market related” standard as a measure to determine the amount of compensation; and
4. The notion of land restitution as tool for land reform which requires proof of dispossession.

Systematic institutional changes are therefore required. The focus should be shifted from a judicial system to an administrative system based on the need for land.

Compensation should not matter in addressing land reform. The rule of law, which provides for clear procedures and remedies as well as to protect the vulnerable, should always be applied. This is to ensure that there would be no “capture” or “land grab” by the elite and wealthy.

In conclusion it is clear that no policy of land reform will amount to a so-called “land grab”. Land may only be expropriated in cases where this falls within the parameters on the Constitution to ensure compliance with public interest in terms of a law of general application.