The National Assembly made headlines this week after announcing that it had passed a motion mandating the Constitutional Review Committee to review Section 25 and the issue of expropriating land under the Constitution.
The motion was passed with an overwhelming majority in Parliament (241 votes supporting), after the ANC and the EFF joined forces on the matter.
However any changes made to the Constitution still need to be read and understood in line with other Constitutional provisions – and possible infringements that may be brought by the changes.
“Section 25 of the Consitution sits within the Bill of Rights, together with rights such as the right to life, the right to an environment that is not harmful, the right to freedom and association and religion amongst others.
“As such the Bill of Rights is a cornerstone to our democracy,” explained Bulelwa Mabasa, director and land claims specialist at Werksmans Attorneys.
Mabasa outlined the three fundamental concepts of land ownership in South Africa, under Section 25 of the Constitution, as follows:
Deprivation of property
No-one may be deprived of property except in terms of a law of general application (that loosely means that the law must apply to sections of the population equitably) and that no law may permit the arbitrary deprivation of property.
“In this regard, Section 25 speaks of property in a general sense, and does not limit itself to land,” said Mabasa.
“It is arguable therefore that Section 25 encompasses the protects from deprivation of property in a wider sense, such as assets, shares and movable assets and not only land. In fact, it states pointedly in section 25(4)(b) that property is not limited to land.”
Section 25 goes on to say that property may be expropriated for a public purpose or public benefit subject to just and equitable compensation.
“Public interest” specifically includes land reform and the nation’s commitment to achieving equitable access to natural resources.
“Section 25 also includes a scheme and/or factors to be taken into account in the calculation of compensation and this includes the history of the acquisition of the property, the purpose of expropriation and market value is one of four factors,” said Mabasa.
“It is not the only factor, although the ANC government decided to use the ‘willing-buyer willing –seller’ principle historically, which was contrary to section 25 of the Constitution.”
Obligation on State
The third aspect of the clause, is a directive and an obligation placed on the State to ensure that it fosters conditions to ensure that citizens are able to gain access to land on an equitable basis.
In this regard, access to land is not necessarily ownership. Access to land may mean leasehold and/or being able to use the land.
This aspect also protects the security of tenure of historically disadvantaged communities and those dispossessed of property after 19 June 1913, as a result of past racially discriminatory laws.
“Whilst section 25 protects against the deprivation of property arbitrarily it also, in section 25(8), says that nothing in the clause may impede the realisation of land reform,” said Mabasa.
“There are other rights enshrined in the Constitution such as the right to dignity and the right to practise one’s culture and religion.
“It may be argued that land reform and the obligation placed on the State to ensure access to land to historically disadvantaged communities must be read together with the right to human dignity and the right to practise one’s culture and religion.
“On the other hand, the right not to be deprived of property, may also be read together with the right to housing , however, this debate is centred squarely on section 25,” she said.