The right to expropriate property

Posted on January 11, 2016


In clear election mode, South Africa’s President Jacob Zuma has carried out an outflanking manoeuvre against the most vocal opposition party, the Economic Freedom Fighters (EFF). He did so by raising the prospect of land seizure when speaking in Rustenburg. There referred to the “land that was stolen from us” and asked why stolen land should be paid for.

The EFF leadership has made the issue of land redistribution a major plank in their electoral programme leading up to the local government elections later this year. And the idea of “taking back land stolen from us” is central to this. However, Zuma also implied that the government had erred in its approach to the land issue.

He was referring to the “willing buyer, willing seller” principle that was adopted by the ANC government and was widely thought to be demanded Sputh Africa’s much lauded constitution. However, as the late former chief justice, Arthur Chaskelson pointed out in an interview: “There is no such provision in the constitution.”

In fact the constitution makes the public interest and equitable distribution of natural resources a principle.

At the time of the interview, shortly before his death, Chaskelson added that the only demand was that justice be served and he was clearly annoyed that the property section in the Bill of Rights (25) had been ignored or misinterpreted.

This section states that “no law may permit arbitrary deprivation of property”. But it goes on to state that property may be expropriated “for a public purpose or in the public interest….subject to compensation…”

However, the “amount of the compensation and the time and manner of payment”, while it must be “just and equitable” should strike a balance between “the public interest and the interests of those affected”. In so doing, it should “have regard to all relevant circumstances”.

These circumstances include “the history of the acquisition and use of the property”, along with “the extent of direct state aid and subsidy” enjoyed by property owners. Crucially, this constitutional provision states that the public interest includes “commitment to land reform, and to reforms to bring about the equitable access to all South Africa’s natural resources”. Property is also “not limited to land”.

Section 25 (5) goes on to note: “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.”

The priority, therefore, is to right earlier wrongs, to take full cognisance of all the circumstances, before deciding on what property to expropriate and at what level at over which period, any compensation should be paid.

Perhaps the EFF and President Jacob Zuma should peruse Section 25 since it covers their land redistribution demands with only one proviso: that further theft not be condoned and that justice be done.

Posted in: Commentary