Apart from the election of the new party president and top six, the issue that dominated the ANC’s elective congress at Nasrec in December 2017 was the question of expropriation of land.
Following what by all accounts was a heated deliberation, the ANC resolved to adopt a radical programme to fast-track land redistribution through "creating the legislative framework to pursue expropriation of land without compensation".
The ANC’s party’s January 8 statement accordingly referred to a commitment to pursue the expropriation of land without compensation, albeit in a manner that "not only meets the constitutional requirement of redress, but also promotes economic development, agricultural production and food security".
The political rationale behind the ANC’s move to champion a more radical programme of land redistribution is obvious: while there is no accurate data on land ownership and redistribution, 25 years into our SA’s democratic dispensation, it is painfully clear that land ownership patterns are nowhere near racially (or from a gender perspective) representative.
The reasons for the aggregate failure of land-ownership redistribution, along with other forms of rural land reform, are complex and continue to be a central issue in policy debate.
But what about the law? At the heart of public discussion about land has been contestation over section 25 of the Constitution, often popularly cast as inhibiting the project of land restitution (and redistribution) through its assumed reliance on paying market value to historical dispossessors of land; and a "willing buyer, willing seller" approach to expropriation.
Yet both of these assumptions reflect a misunderstanding of the law, possibly exacerbated by a conflation between the law on the one hand, and political will and the implementation of policy on the other hand.
The confusion might also be related to a continued reliance on the Expropriation Act which, as a pre-constitutional piece of legislation, references both a willing buyer, willing seller and market-value approach (an amendment to the Expropriation Act that aligns it to the Constitution was approved by Parliament in May 2016 but was sent back to Parliament by President Jacob Zuma to clarify the process for passing the bill).
However, the Constitutional Court has clarified in cases such as Du Toit v Minister of Transport that, to the extent that the Expropriation Act is not in line with the Constitution, the Constitution must prevail.
As we highlight, the Constitution provides a clear framework for transformation of the land regime. It is therefore unclear what the ANC plans to amend.
Regarding market value, section 25(2) of the Constitution establishes that property can be expropriated only in terms of a law of general application:
- For a public purpose or in the public interest; and
- Subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
Section 25(4)(a) specifies that the "public interest" includes "the nation’s commitment to land reform, and to reforms to bring about equitable access to all of SA’s natural resources". Thus expropriation to advance land restitution (and as well as redistribution) is explicitly covered.
Section 25(2)(b) suggests that the issue of compensation must be deliberated between the landowner and the state. However, it has been conclusively established by the Constitutional Court (in the 2011 case, Haffejee NO v eThekwini municipality) that, while it is ideal for the amount, time and manner of compensation to be established prior to the expropriation, this is not necessary. In other words, a landowner may not hold up an impending expropriation by arguing over the price being offered, a fact that clearly negates the "willing buyer, willing seller" thesis.
It is also clear from section 25(3)(a-e) of the Constitution that market value is simply one of a range of (inexhaustive) factors (including the use of the property, history of acquisition, extent of direct state investment and subsidy, and the purpose of the expropriation) to be considered when deciding how much compensation to award in cases of expropriation.
Accordingly, market value might be one of the factors considered but, following proper consideration of all the other factors, the final amount could be substantially lower than market value and it could even be close to zero.
No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1)
— Constitution
A series of judgments, including the 2005 Constitutional Court case of Du Toit v Minister of Transport, has emphasised that the guiding principle in section 25(3) is to achieve just and equitable compensation rather than market-value compensation. This means that, even if sometimes market value is often a useful starting point in deciding the amount of compensation, a court can award below-market value compensation in the public interest.
So, for example, according to the formulation of section 25(3), where the property had been egregiously dispossessed, was not being used for food crops, had benefited from substantial state subsidies under apartheid, and where the expropriation was going to result in the restitution of the land to a community of farmers, compensation might be extremely low.
Intriguingly, section 25(8) of the Constitution states: "No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1)’."
This provision indicates that, to the extent that the existing clauses of section 25 become an outright impediment to necessary social transformation (a position from which we suggest SA is far away since, in expropriation and restitution practice, we have not yet tested the limits of section 25), any departure from any of the provisions of section 25 could be deemed constitutional if found "reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
The bottom line is that section 25 mandates neither a "willing buyer, willing seller" regime nor market value compensation for expropriation. Limits to large-scale land restitution (and redistribution) are not the result of constitutional obstacles. Rather, any such limits or failures are the result of political choices and/or bureaucratic processes, implying problems with the polity rather than the Constitution.
If the ANC wants to fast-track land expropriation and restitution, the Constitution provides a conducive framework for this, as is recognised by the high-level panel's report, released in November 2017.
And if section 25 is used to its full potential, it should not be necessary to amend the Constitution to pursue such critical socioeconomic reforms.
The current ANC call for "sustainable land expropriation", "without undermining other sectors of the economy" may in fact create additional confusion, to the detriment of much-needed land reform.
What is needed much more than legislative amendment is coherent political direction and effective implementation of land-reform mandates.
• Dugard is associate professor in the School of Law at the University of the Witwatersrand and Seme is a lecturer at the School of Law.
• The Wits School of Law will host a discussion on this topic on Tuesday, January 30, at 5.30pm at the school.
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