Land Expropriation without Compensation in South Africa

Hoitsimolimo Mutlokwa

Koç University, Istanbul

The issue of land ownership is of central concern to post-colonial African nations. South Africa is currently considering dramatic reforms to its laws on this issue, including a constitutional amendment. It is not yet clear whether the drafted amendments will pass; such an amendment process may only succeed if 67% (a two-thirds majority) of parliamentarians vote in favour of it in the National Assembly, and at least six out of nine members sitting in the National Council of Provinces. Nevertheless, the full implications of such amendments must be considered.

Current land ownership and Section 25 of the Constitution

The current land audit report reveals that people of European descent own 72% of the total farms and agricultural holdings while only making up about 9% of the total population. Coloured (mixed race) people own 15%, Indians own 5%, Africans own 4% and ‘other[s]’ own 4%. The present white paper on land reform policy reveals three types of land reform, namely: (1) land restitution, (2) land redistribution and (3) land tenure reform. All these types of land reform currently require compensation to the previous landholder if land is expropriated. The fundamental requirement for compensation stems from Section 25(2) of the South African Constitution, which states that:

“Property may be expropriated only in terms of law of general application–

(a) for a public purpose or in the public interest; and

(b) 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 the court.”

The proposal to amend Section 25

On 13 December 2019, the chairperson of the Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of the Constitution, released a notice calling for public comment on a proposal to amend Section 25. The preamble of the draft amendment laments the urgent need for accelerated land reform because not much has been done to address “the hunger for land among the dispossessed”. The preamble further goes on to state that such an amendment will contribute to the righting of past wrongs, and such amendment will also empower the majority of South African citizens to participate in land ownership, food security and agricultural reforms. The amendment to Section 25 would add the possibility of nil compensation to Section 25 by adding the following text:

“(2)(b) … a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil’.

(3A) National legislation must … set out specific circumstances where a court may determine that the amount of compensation is nil.”

The new possible amendments show that courts will have to determine if land can be expropriated without compensation and that such a determination will be subject to legislation created by parliament. Such expropriation legislation has been drafted but not yet passed.

International perspectives

In amending Section 25 of the Constitution, the South African government must remember the recent judgement of Law Society v President of South Africa where, in the words of Mogoeng CJ, the Constitutional Court held that:

“In interpreting the Bill of Rights, courts are required to consider international law. Our Constitution also insists that they not only give a reasonable interpretation to legislation but also that interpretation accords with international law.”

This case is significant in that it showed the boldness of the South African judiciary, indirectly holding that citizens can hold their government accountable for respecting human rights and the rule of law in terms of international human rights law. This case can be seen as a culmination of the SADC Tribunal case of Mike Campbell and 79 other commercial farmers, wherein applicants received an award against the Zimbabwean government to remain on their expropriated farms. The tribunal held, amongst other reasons, that Amendment 17 of the Zimbabwean Constitution to expropriate land without compensation amounted to racial discrimination. Although the expropriation was conducted to address the issue of racial imbalances, it was marred by the awarding of land predominantly to “ruling party loyalists”. Further, judgement was awarded against Zimbabwe with regard to foreign investors before the International Centre for Settlement of Investment Disputes (ICSID). In the ICSID case of Bernahrd von Pezold and Others v Zimbabwe, the tribunal held that there had been a violation of “fair and equitable treatment” by the Zimbabwean government in the expropriation of land without compensation of not only white citizens but also of individual foreign investors who owned immovable property. The government had allowed the expropriation of such foreign investors’ land, thus breaching bilateral treaty agreements.

In the current question of South Africa’s intent to amend Section 25, the drafters of this amendment may not have considered that the government's conduct is not only regulated by national law but international law and customary international law, according to Sections 232 and 233 of the Constitution which require interpretations of domestic legislation consistent with international law. With this in mind, foreign case law such as the case of Bowen v Attorney General from the Republic of Belize is relevant. In that case, the Belize Supreme Court applied the Doctrine of Basic Structure, abstracted from the Indian Supreme Court case of Kesavan and Bharati v Kerala  (i.e., the Constitution has basic features that cannot be amended by its legislative body; amendments must not conflict with the basic structure of the Constitution). In this case, landowners in Belize challenged the parliament's amendment of the Constitution, which would, in turn, result in their loss of land without compensation because oil had been discovered. Returning to South Africa, Section 25, as amended, is unlikely to be consistent with other provisions of the Constitution regarding fundamental rights.

Conclusion

A cautionary approach to amending Section 25 is necessary; expropriation with nil compensation may not be feasible because it is essential to take into account valuable lessons from other jurisdictions that highlight the conflict with other rights outlined in the current South African Constitution. While a lot of South African citizens are acquainted with the experiences of other jurisdictions such as Zimbabwe that embarked on constitutional amendments to expropriate land with nil compensation, there may be significant panic and the message may be blown out of proportion. The state needs to handle this amendment with clarity and transparency, ensuring democracy, respect for the rule of law, and respect for human rights, especially taking the rights of private property holders into consideration.

Hoitsimolimo Mutlokwa is a PhD student in Public Law at Koç University, Istanbul, Turkey.

Suggested citation: Hoitsimolimo Mutlokwa, ‘Land Expropriation Without Compensation in South Africa’ IACL-IADC Blog (20 February 2020) https://blog-iacl-aidc.org/2020-posts/2020/2/20/land-expropriation-without-compensation-in-south-africa