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This piece is loosely based on my public submission to the parliamentary committee assessing the possible amendment to Section 25 of the Constitution commonly known as the property clause.
The law is not “written in stone” to ironically draw a parallel to Roman times, but is written, tested, and amended in our courts every day.
The provisions of the Constitution serve as a guideline to what is commonly acceptable in our society and they may lay “dormant” eternally but, when challenged, the courts deliberate and make definitive findings.
A provision that has gone through this process is the binding nature of the remedial action determined by the Public Protector.
Our recently departed head of state was adamant that the Public Protector merely makes recommendations.
The provisions of Chapter 9 and more specifically Section 182 of the Constitution govern the powers of the Public Protector and have been in place since the inception of the constitutional order, yet there was no certainty as to the effective powers of this office.
When this matter came to a head the Economic Freedom Fighters approached the Constitutional Court.
This court then interpreted and applied the provisions leading to a judgment that creates binding legal precedent on the matter.
The result is that powers of the Public Protector have been confirmed beyond doubt.
Any public official who now attempts to avoid complying with the remedial action of the Public Protector would simply be advised with reference to Economic Freedom Fighters vs Speaker of the National Assembly that he did not have reasonable prospects of success.
With the above in mind, it is pertinent to ask why this cannot be said for the provisions of Section 25?
Why is there no definitive case law on land reform that puts the interpretation and force of these provisions beyond doubt?
I cite two cases that relate to the appropriate compensation for expropriated property.
In Haffejee NO v eThekwini Municipality, the Constitutional Court found that while it is ideal for compensation to be agreed upon between the state and the landowner, this was not a prerequisite for expropriation.
This is a strong indicator that expropriation of land by the state takes priority over the compensation deliberations with landowners, contrary to popular narrative.
I cite this case as an indicator of the power of the state to expropriate land, but I must put in the caveat that this expropriation was done by a municipality in order to implement a civil project, not for the purposes of land reform.
For purposes of the following example, we must remember that the expropriation provisions in Section 25 explicitly state that property is not limited to land.
In Du Toit vs Minister of Transport, a landowner claimed compensation at market value of R 800 000 for stone that was expropriated by a state functionary from his land for road construction.
The high court interpreted and applied the provisions of Section 25 and found it was just and equitable to deviate downwards from the market value by a margin of 40% in this instance.
The landowner appealed to the Supreme Court of Appeal and this court found that market value could not be applied to the compensation determination because the “market” for the stone was, in fact, created by the state. There was otherwise no market at all for this stone.
This court awarded the land owner compensation of R6000. The landowner appealed to the Constitutional Court and this court agreed on the amount of R6000 and the matter reached finality.
The judicial process had applied provisions of Section 25 as they currently stand to reduce the demanded market value compensation of R800 000 to a mere R6000, a 99% reduction.
This process has the potential to multiply the impact of the land reform budget by almost a hundred fold.
Contrary to popular argument, this does not mean we will be in court on a case-by-case basis for each expropriation, but rather that precedent will be created, leading to a process that becomes established practise.
The South African government seems to have an illogical commitment to compensating landowners at market value when it comes to the purposes of land reform as it astonishingly did against the order of the Land Claims Court in the now famed R1 billion Mala Mala Game Reserve settlement.
The Land Claims Court was unequivocal that it was not feasible nor in the public interest to pay that amount of money for land that would ultimately provide very little benefit to each of the 2000 members of the community which initiated the claim.
I can only speculate as to the reasons for this.
The Constitution has been in place for 24 years, therefore one has to wonder whether our leadership is not embracing this call to amend Section 25 in order to move the goal posts and mask implementation failures on land reform.
It would also seem that there is a desire to uncharacteristically deviate from standard legal strategy in this case.
Parliamentarians never called for Chapter 9 of the Constitution to be amended in order to settle the dispute between themselves and the Speaker of the National Assembly on the Nkandla matter, but instead followed due legal process for the provisions in dispute to be tested by the Constitutional Court.
Why not do so with Section 25?
Furthermore, the amendment seeks to make expropriation without compensation possible, not to make it mandatory.
There will still be due legal process and constitutional tests to establish exactly when such an expropriation may be effected.
The days when title deeds will be distributed like flyers at traffic lights are not upon us and I am of the view that this proposed amendment will not bring them any closer.
• Bulali Dazana is a student of the law.
