This is how government plans to change South Africa’s Constitution

Parliament’s land reform committee met on Wednesday (6 November) to gather insights from legal experts and stakeholders about how it should amend Section 25 of the Constitution to allow for land expropriation without compensation.

In its presentation, the Parliamentary Legal Services said that there are effectively two ways in which the committee could amend the Constitution: amending the current sections, or inserting a new subsection.

You can find a brief explanation of these two options outlined below.

Option one – Amend the current subsections 

Section 25(2) of the Constitution currently 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 a court.

Section 25(3) states that:

The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including –

(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.

Option one is to amend subsections (2)(b) and (3)(b) with the proviso that a court may determine that no compensation is payable in the event of expropriation of land for the purpose of land reform, the Parliamentary Legal Services team said.

“Where compensation is payable, the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances,” it said.

Option two – Insert a new subsection

According to the team, this subsection would effectively fit in after the above subsections in Section 25 of the Constitution.

It provided the following example of how this new subsection may read:

“Notwithstanding the requirement for compensation contemplated in subsections (2), (3) and (4), land may be expropriated without the payment of any compensation as a legitimate option for land reform in order to redress the results of past racial discrimination.”

While it did not indicate which option it found the most preferable, the committee said that it is confident it will meet the deadline of March 2020.

“This lies at the heart of our nation-building project,” said committee chairperson, Dr Mathole Motshekga

“We must put aside our vested interests and put the interest of all South Africans, both black and white, first. This is a legacy challenge created by people who are no more”

Motshekga said it is unfair that 13% of the land is in the hands of the minority. He however made it clear that the “original sin of land dispossession” was started by “British imperialism”.

Read: New bill on land expropriation without compensation may be out for public comment over Christmas