By far the most contentious issue plaguing the minds of South Africans today is that of land expropriation. Opponents of the idea may cite philosophical debates dating back to the age of John Locke, and later, Napoleon, in which universal property rights were seen as the cornerstone of a functional society. On the other hand, those in favour of the idea can cite more recent trends of discrimination and institutional intolerance within the country to highlight the importance of modern-day redistribution in an attempt to undo or, at the very least, lessen the impact of the injustices of the past. But what does the law say? Are land grabs legal and could things change in the near future? What is the Law on Land Grabs in South Africa?
Chapter 2 Section 25 of the Constitution deals with property rights within South Africa and when discussing the topics of expropriation or land grabs, 4 aspects of this section come into play –
- Expropriation can only take place in terms of law of the general application for a public purpose or in the public interest – Simply put, the government can’t just randomly take away your property whenever it feels like it. Expropriation has taken place before, but only when it is necessary for terms of public interest. For example, your land may be expropriated if the government determines that a highway needs to be built in its place, although, even in these scenarios, expropriation is supposed to be used as a last resort if the property owner will not agree to any other offers.
- Just and equitable compensation must be provided after expropriation has taken place – When land is expropriated, many factors need to be considered ranging from the market value to the use of the property and everything in between. After this is done, the original owner must be compensated for the land that was expropriated.
- The country’s commitment to land reform is viewed as being in the public’s interest – Considering the country’s past of racial discrimination, land reforms are considered a matter of public interest as they attempt to remedy the issues of disparity within the nation today.
- The term ‘property’ is not limited to land – There is a wide range of assets that may fall under the rubric of the property when considering this subject.
So let’s consider what these laws mean for land claims and land expropriation cases. Theoretically, while your land and assets could currently be expropriated for purposes of land reform, you would still need to be provided with some kind of compensation for your loss* (it should be noted, however, that cases of this nature are extremely rare).
*there is also the expectation of deprivation of property which we’ll go into in more detail later
That seems pretty cut and dry then, right? Well, not exactly. Many groups such as the EFF and parts of the ANC have raised criticisms of this process and stated that property should be expropriated without compensation. On its face, this seems unconstitutional unless an amendment can be made to section 25, that said, there are many legal workarounds and loopholes that may be exploited to change the rules.
What is the Expropriation Bill?
You may have heard of the controversial Expropriation Bill being debated in Parliament recently. Most famously, this bill is intended to amend section 25 of the Bill of Rights to enable expropriation without compensation.
At first, it seemed like this bill would pass easily with the support of both the ANC and EFF as both parties voted in 2018 to have a review committee formed to consider the matter (even when a bill gets the necessary votes, there is a long process to complete which involves making sure that the new amendments are in harmony with the rest of the constitution), however, one such ad-hoc committee which was tasked with creating the legislation that would allow for such an amendment has reached its expiry date without completing the task and has thus been granted an extension.
But why has this happened? Well, while both parties could agree that they wanted expropriation without compensation, they have yet to agree on the finer details which have led to infighting over the matter. On the one hand, the EFF has called for state custodianship of land in South Africa, while parts of the ANC, under the leadership of President Ramaphosa, have rejected this idea.
What is State Custodianship?
From time to time, things (and even people) are given over to the custody of the state. Simply put, this means that the state has temporary control of these things for whatever reason. It’s important to remember in cases of state custodianship, that the rights to land are not forfeited to the state. The state merely holds these assets until a permanent owner can be found.
According to the ANC’s Vusumuzi Xaba, there are instances in which land may be taken without compensation being offered, namely, in cases involving deprivation rather than expropriation. Couple this with the ruling of Chief Justice Mogoeng Mogoeng in the case of Agri South Africa vs Minister for Minerals and Energy (2013) in which he believes that state custodianship cannot be considered expropriation as the state has not become the owner of the rights concerned, and you may begin to see where this is going.
State Custodianship then is being seen by many in the South African government as a type of deprivation rather than a form of expropriation.
There are two applications of state custodianship that must be considered here, first, the political/legal, and secondly, the practical –
- The Legal/Political – As mentioned, even when a constitutional change is made, it takes a long time to ensure that it can be squared away with the other protections provided for by the constitution. This definition of state custodianship allows the state to forego the argument of compensation to an extent as it claims that expropriation has not taken place.
- The Practical – Due to the litigation and bureaucracy that is involved with cases of expropriation, it is the belief of EFF party leader Julius Malema, that land reform will take far too long under a system of expropriation as land would, theoretically, be taken bit by bit. The solution he sees involves transferring all land to the custodianship of the state which he hopes will bypass all ancillary proceedings.
It should be noted, however, that critics have pointed out multiple issues with these types of constitutional changes. Most notably, the impact it would have on investment in South Africa as few people would want to invest in a country that could seemingly take away their property rights at any given moment.
Additionally, there are concerns that corruption and/or incompetence may lead to a very small proportion of the land actually going to those in need as around half of land reform projects to date have already failed.
In Conclusion – What is the Law on Land Grabs and are they Legal?
While there is much debate and voting taking place over potential constitutional changes that may make expropriation without compensation legal in the future, currently, the bill of rights provides provisions against it and thus makes most land grabs both illegal and unconstitutional.
There are however some expectations that should be noted, for example, land can be expropriated for the ‘public interest’, although compensation must normally be offered. Additionally, in cases involving ‘deprivation’ which could include state custodianship, the constitutional court has ruled that expropriation is not taking place and thus no compensation is required.
The ANC/EFF coalition with regard to the Expropriation Bill has garnered enough votes to have an official committee formed which has attempted to create the legislative changes required to amend section 25 of the constitution and make expropriation without compensation legal, however, the committee has yet to complete this task and the due date for their goal has been extended.
The ideological split that has made this amendment so challenging arises from differences between the ANC and EFF leadership in terms of state custodianship of land. The EFF seems to want all property (which includes assets beyond just land) to be put under state custody before being redistributed, thus circumventing the issue of compensation as state custodianship would fall under the categorisation of deprivation rather than expropriation.
This viewpoint is opposed by some in the ANC because they believe state custodianship will have a far too negative impact on investment as few individuals would choose to invest in a country with such mercurial property rights.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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