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Land Expropriation without Compensation


- Featured article by LAWYERS-ONLINE.CO.ZA - April 2018

Addressing two factors around the current land expropriation issue.

South Africa is in an uproar with regards to the land expropriation the government aims to enforce. Land claims have been a sensitive subject for South Africa since the land reform laws were implemented in the 90’s. Now South Africa is faced with yet more unrest to settle the score…or so it is believed by many.

Getting to the facts and putting the situation in perspective – What exactly is happening?

Our government wants to amend section 25 (The Property Clause) of the constitution.

Why?

The land reform laws of the 90’s are considered a failure. Under section 25, land claims must be compensated. However, this is an element of governance that is not looked upon favorably. Many South Africans insist that land reform must be expropriated without compensation. Much of South Africa’s society feels that the previously advantaged should not benefit again from colonialism and apartheid.

An example of the above ideology is that in 2013 a land claim was compensated to the asking value of almost R1bn to the owner family. At that time, the compensation amount was about one third of the national budget, paid out to a single white family.

The property clause constitutes that expropriation, land redistribution, restitution and security of tenure that no provision can impede the state from embarking on reforms to address historical inequalities.

Saying it simply, the public feels that their rights have not been met under the constitution and that the governing party has not used its constitutional powers, in accordance to the above property clause.

Further is the concern of state custodianship.

The EFF party is encouraging land expropriation without compensation and sate custodianship to address the above issue. The ANC agrees that land expropriation without compensation to address the above problem should be one mechanism at their disposal as well as others, such as buying on the market, negotiating, expropriating and compensating…although this mechanism is already available to the government.

Again, the government wants to review and amend section 25 of the constitution to make it possible for the state to expropriate land in the public’s interest without compensation. However, under section 25 of the constitution, this is already possible… as long as it is just and reasonable. So what then is the issue? The issue is whether a relevant instance is just and reasonable? What constitutes just and reasonable? To ensure that expropriation of land is in the public’s best interest. Building dams, hospitals and transportation systems, for example.

Is this what the government aims to amend? The relevance to just and equitable expropriation?

So ultimately, the issues around the amendment are that land claims be expropriated without compensation to the owner families so that the previously disadvantaged may “rightfully” achieve land claims without again benefiting the previously advantaged. Also debating whether or not the state will become the custodian of all South Africa’s land and what would denote just and equitable.

There is a lot of hype around the outcome of this national issue. For instance, we are wondering what land will qualify for expropriation should it become state owned. The EFF party insists that rural land and commercial farm land be selected but under section 25 of the constitution all land and houses apply. Will this be considered?

Will persons who bought land a year or two ago be expected to uphold the same laws as those who came into land trough ancestry?

What will the government do with the land that are lying idle, which were the product of land claims?

Facts and fears have crossed lines and political issues like these confront a sensitive South Africa. We hope only that the government act in the best interest of a just and democratic nation.

For further information with regards to the property laws in South Africa, please consult one our attorneys.

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