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Elmien du Plessis
Last week’s announcement by President Cyril Ramaphosa made the (new) stance of the ANC in the Constitutional Review Process public. While in essence the ANC did not say more than it did in its 54th conference report, or in the motion before Parliament, it made official its stance in the process, even if it has done so prematurely and clumsily.
As a land law lecturer, I can say that this method of making known its stance is not a completely new way for the ANC to do things. The policies that the ANC issued on land the past few years often had to be pieced together from press briefings and official PowerPoint presentations, with little indication of whether it is still applicable or how it ties in with other policies.
There seldom is a coherent policy document that gives an indication of what the actual content of the policy is, for instance the so-called 50/50 policy. The Green Paper on Land Reform of 2013 was equally problematic for being vague and not really providing pointers as to what will be done. Lawyers working in the field of land reform have become master quilters – patching together various documents and laws in trying to find direction, and to sometimes forge direction.
So, when the president made the announcement that the ANC’s proposal is an amendment to the Constitution to make the conditions for expropriation of land without compensation clearer, without actually stating how, a familiar disappointment dawned.
The political message that was sent by the announcement I will leave to the political commentators to comment on, and the speculation on how this impacts on the economy I will leave to the economist, lest I rewrite Economics 101. What is necessary is to make clear what the possible legal impact of such a speculated amendment could be.
Constitution aims to find balance
Section 25 of the Constitution should be understood in two parts. The first part provides for the grounds on which the state can interfere with property rights, including expropriation. The second part lays down the state’s duty to effect land reform. On first view, these two parts seem to embody competing objectives, but when viewed rather as a tension that requires us to find the equilibrium between the existing property rights and the land reform goals laid out, the aim is to find the balance between competing interests, rather than a win-lose situation.
This is because the Constitution provides objectives that we try to reach in the protection of property rights. The Constitution requires us to think differently about the protection of private property where the focus is solely on the person and their relation to the object (such as land) – there are public considerations that come into play. Your individual private property right is guaranteed and will be upheld for as long as it supports other constitutional goals contained in Section 25. The other side of the coin is that striving to meet these objectives should not interfere with property rights more than is necessary and justifiable.
From various reports it seems that Section 25(8) might be the section that will be amended. Section 25(8) states that no provision in Section 25 (such as the provision allowing for expropriation) may stop the state from taking various measures to achieve land and other reforms, in order to redress the results of past racial discrimination. The speculation is that further conditions will be added to this section, amongst others that it cannot be detrimental to the economy, and that it cannot impact negatively on food security.
But there are additional requirements for a valid expropriation. The Constitution still requires that expropriation be done in terms of a law of general application and for a public purpose or in the public interest. These requirements, as further detailed in legislation, provide the checks and balances, and as such make it an acceptable interference with private property rights as it contains state powers and ensures fairness to all parties involved.
State won't be able to 'grab' land
The law of general (legislation) application usually provides the purpose for the expropriation. Current land reform legislation (such as the Restitution Act) does provide for expropriation. Whatever the reason for the expropriation, government must be able to show a tangible clear plan of what it envisages with the land for it to be a valid expropriation. Government will have to work on its track record in this regard.
With expropriation being an administrative act, expropriation needs to adhere to administrative justice as contained in Section 33 of the Constitution. It would therefore be possible to question the decision and the choice of land on administrative grounds. Being an administrative act, it is also a fairly long procedure, with onerous procedural requirements that must be met.
Put simply, even if provision is made for expropriation without compensation in certain circumstances, the state will not automatically be able to "grab" land. It is merely a start of a very long process. This should provide a warning sign to the ANC that expectations have to be managed to prevent a charged situation from exploding.
Does the unknown proposed amendment change the interpretative framework of the section? If gleaned from the wording of the press releases, probably not. The weighing up of interests will still have to take place in expropriation inquiries, and the tension between the protectionist part of Section 25 and the reform orientate goals of Section 25 remains. Individual rights remained protected insofar as it does not obstruct the public considerations contained in our Constitution.
And this cannot be a zero-sum game. But in a vastly unequal society like ours, we struggle to find equilibrium because we are pulled so far apart, that anywhere in the middle seems like a big compromise from both sides.
- Elmien du Plessis is associate professor in Law at the North-West University.
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