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Expropriation without Compensation: Part 2:

We continue where we left off last week with a continuation of the interpretation of section 25 of the Constitution.

Section 25 subsection 4 reads:

“For the purposes of this subsection:-

  • (a) The public interest includes the nation’s commitment to land reform and to reforms to bring about equitable access to all South Africa’s natural resources; and
  • (b) Property is not limited to land.”

This subsection clearly refers to the need for land reform and also the need for equity and fairness so as to allow all South African’s access to land, our natural resources and other property over and above land.

Subsection 5 reads:

“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.”

Again; notice the reference to the word “equitable “and the onus being placed on the state to take “reasonable: steps both in terms of legislation and “ other measures” ie it is not limited to passing the applicable law in this regard.

Subsection 6 reads:

“A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of Parliament either to tenure which is legally secure or to comparable redress.”

This subsection is aimed at those who have no land or homes, as a result of Apartheid; and states clearly that they are “entitled” to the security of tenure or redress in the form of comparable compensation.

Subsection 7 reads:

“A person or community disposed of property after the 19th June 1913 (the effective date of the Native Land Act of 1913) as a result of past racially discriminatory laws or practices is entitled to the extent provided by an Act of Parliament either to restitution of that property or to equitable redress.”

This subsection is aimed at those who lost their land or homes (after 1913)previously and states clearly that they are “entitled” to get their properties back or redress in the form of fair compensation.

Subsection 8 reads:

“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 sections is in accordance with the provisions of section 36(1).”

As an aside; section 36 (1) deals with “ Limitation of Rights” and states inter alia that the rights in the Bill of rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable….” 

Again subsection 8 is aimed at redress of the past racial discrimination.

Subsection (9) reads:

“Parliament must enact the legislation referred to in subsection 6”.

This is self-explanatory.

In summary therefore if one analyses section 25 of the Constitution from a legal and literal meaning perspective; the section, read as a whole, does allow for expropriation of land and that would in our view be especially true in the light of the contents of all of its subsections read together, as they must be read; and it does allow expropriation without compensation without having to amend this section of any other section of our current constitution.

Do you agree with this interpretation?

If you do; it appears that there is no justifiable legal reason for insisting on an amendment to our constitution.

It then seems that the real reason for wanting to do so has more to do with politics and political point scoring in the run up to the 2019 election; and the specific policy campaigns of some of the political parties pushing for such an amendment; especially the EFF and the ANC.

There is another important aspect and that is that any amendment or proposed amendment to the Constitution could well be tested by possible aggrieved parties in the Constitutional Court.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 41 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 19 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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