Author: Hopewell Sathekge – Senior Associate
The public was invited to make written submissions on the review of section 25 ("property clause"), and other sections where necessary, of the Constitution to make it possible for the state to expropriate land, in the public interest, without compensation.
Essentially, the fundamental issue to be decided is from whom and how will land in South Africa be legally expropriated, and to whom?
There are many emotions involved in the discussion of land reform and as such, it can be argued that legal processes are not always the best avenue to achieve land reform. However, we need to first retrace our history and ultimately bring in legal processes to manage the emotions attached to this issue.
In ancient times, ownership of land was maintained only by force. As time progressed, conditions developed which necessitated methods of establishing proof of ownership where there was a dispute. Land surveying is one such method which can be traced back to the Egyptians. The system for the transfer of ownership of land, like our system today, already existed in 300BC. Interestingly, this system is also recorded in the Old Testament of the Bible in Jeremiah 32:9-14.
Our system of ownership of land was foreign to the indigenous population of South Africa. The population then were nomadic tribes whose custom dictated that land vested in the tribe and not in its individual members. Colonisation and expansion northwards in South Africa changed this and determined the underlying principles of our system of registration, which is centred on private individual ownership of land. It was the earliest colonialists who brought the Dutch version of the European legal tradition to South Africa which recognised and upheld private individual ownership of land.
Separate elements of Roman law and Germanic customary law within the Dutch legal tradition gave effect to the publicity principle underlying ownership and the subsequent transfer of land. In Holland, a law was issued by its Emperor in 1529 requiring every sale or hypothecation of land to take place before a judge. Any sale of land that did not take place before a judge was considered null and void. These laws wereincorporated into the laws of the Cape through the enactment of ordinances.
While you could sell and hypothecate land before a judge, an efficient system of registration of ownership was impossible unless each registered land parcel was surveyed and represented on a diagram or general plan for identification purposes.
Under British rule, the cadastral survey was introduced and now forms the basis of our present registration system in South Africa. Land surveying commenced with the advent of British settlement in the Cape where English replaced Dutch as the official language and further ordinances were issued to provide for the preparation, execution and registration of deeds of transfer and mortgage bonds. All that then brought us to our current system of ownership of land in South Africa recognised in our Constitution.
The property clause provides that no person may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property. Regarding expropriation, the property clause provides that land may be expropriated only in terms of the law of general application for a public purpose, or in the public interest, and subject to compensation. The exact amount of compensation may either be agreed upon by the parties or decided by a court of law. In all instances, the amount of compensation must be just and equitable to which certain factors must be considered to arrive at what is just and equitable. These include the current use of the property; the history of the acquisition and use of the property; the market value of the property; 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 property clause further provides that the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. One such measure was taken by the National Assembly in the passing of the Expropriation Bill, which aimed to provide for the expropriation of property for a public purpose, or in the public interest, subject to just and equitable compensation.
The Expropriation Bill was a mirror image of the property clause with more detail provided as to the “how”. The bill provided detail for determination of the amount of compensation to be paid to registered landowners. Section 12(1) of the bill provided that the amount of the compensation payable must be just and equitable, reflecting an equitable balance between the public interest and the interest of landowners, having regards to the factors listed in the property clause. However, section 12(2)(e) and (f) of the Expropriation Bill provided that in determining the amount of compensation to be paid, anything done with the object of getting compensation, or any enhancement in the value of the land which can be directly attributed to the purpose for which the land was expropriated, cannot be taken into account. Other provisions of the bill gave detail as to how expropriation would be executed. Section 26 provided for a register of all expropriations that are intended, effected and withdrawn to be maintained and accessible to the public.
After the bill was passed, it was referred to the then President for his approval. The President subsequently referred the bill back to the National Assembly advising that the National Assembly failed to facilitate adequate public participation during the processing of the bill as required by the Constitution. Another point raised by the President was that the bill should have been referred to the National House of Traditional Leaders for comment. The bill was duly forwarded to the National House of Traditional Leaders for comment and the comments received by the National Assembly touched on several substantive issues. The National Assembly then rejected the bill it had passed.
Before rejecting the Expropriation Bill, the National Assembly had earlier resolved to investigate amending the property clause to allow for expropriation without compensation. The National Assembly's Constitutional Review Committee travelled around the country to gather public input on the question of from who land in South Africa is to be legally expropriated without compensation, and to who.
During the road shows, it needed to be established whether it is just and equitable to compensate landowners for land acquired as a result of unjust laws in instances where the state is aiming to redress past racial discriminatory laws. It also needed to be established whether public purpose, or in the public interest, means land expropriated should not be owned in the name of any particular individual, as was the case in tribal custom of the past in South Africa, but rather in the name of the state in a custodianship role for the benefit of all South Africans. This is because in the past some successful land claimants opted for monetary compensation instead of land.
It may be argued that to justify expropriating land without compensation, it will have to be shown that the current registered owner of the land concerned acquired the land through unjust laws and without having, for example, paid fair value for the land at the time. Time having passed, some current landowners may have acquired the land from previous landowners who acquired the land through unjust laws and without having paid fair value. In that instant, it may be necessary to compensate current registered landowners for the actual amount paid to acquire the land and not necessarily for the current value of the land.
Our history that has resulted in the underlying principles of our system of registration could be a road map to achieving land reform in a just and equitable manner. Once it is established how land was acquired and a conclusion is reached that the land concerned was acquired through unjust laws and without having paid fair value, it needs to be determined if expropriation without compensation needs to take place. Should that take place, it then needs to be determined who is to acquire such land. Perhaps those that were deprived of land through unjust laws may be first in line to acquire such land expropriated.
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