Estimated reading time: 5 minutes
- Approximately 70 000 out of approximately 75 000 restitution claims lodged have been settled, with market-related or close-to-market compensation paid to landowners.
- In 2014, and shortly before the general election, the Restitution of Land Rights Amendment Act, 2014 (Act 15 of 2014) (the Amendment Act) was enacted to extend the filing date for claims to 30 June 2019.
- These laws failed. The Constitutional Courtdeclared the Amendment Act unconstitutional.
- Despite these failures, the new Expropriation Bill was passed on 28 September 2022 and recently signed by president Cyril Ramaphosa.
- The new Expropriation Act will not only be tested against the wording of Sections 25(2) and 25(3) of the Constitution, but also against its historical application and interpretation in practice and by the courts.
Sections 25(2) and 25(3) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), in its current form, have been in force since 1996 and as such interpreted by the courts. The wording and interpretation of the Constitution remains the supreme authority against which all, and even new legislation and its application, will be measured in future.
Approximately 70 000 out of approximately 75 000 restitution claims lodged have been settled, with market-related or close-to-market compensation paid to landowners. Moreover, market-related compensation has formed the basis of several court judgments pertaining to just compensation in terms of the Constitution.
In cases where claimants’ ownership of land was not restored, the historical market value of the land formed the basis for calculating and paying just and equitable compensation. The Restitution of Land Rights Act, 1994 (Act 22 of 1994) refers explicitly to Sections 25(2) and 25(3) of the Constitution in order to determine what just compensation claimants ought to receive. The ‘injustice’ that is being redressed or corrected by land claims relates to the less than reasonable and fair (market value) compensation paid to people who were deprived of their land rights in the past because of racial legislation or practices.
The state department dilemma
Unfortunately, just and equitable compensation has been erroneously identified as the stumbling block and reason why land reform in South Africa has failed. Since 2014, legislative interventions have attempted to resolve these land reform failures and move away from market-related compensation, without addressing the governance issues in government departments.
In 2014, and shortly before the general election, the Restitution of Land Rights Amendment Act, 2014 (Act 15 of 2014) (the Amendment Act) was enacted to extend the filing date for claims to 30 June 2019. The Property Valuation Act, 2014 (Act 17 of 2014) was enacted in the same year, and the Act’s regulations promulgated in 2018. These regulations drastically changed the basis of compensation for the purchase of private land for land reform. Many new claims were filed, after which the state decided to apply the regulations under the Property Valuation Act to all land reform transactions.
These laws failed. The Constitutional Court declared the Amendment Act unconstitutional. In addition, the Land Claims Court of South Africa (now the Land Court) cast doubt upon the formulas used for calculating just and equitable compensation in terms of the regulations of the Property Valuation Act when the state’s expert witnesses were unable to prove their validity.
Following these failed attempts, a new attempt was made to amend the wording of Section 25 of the Constitution with the aim of making explicit what was allegedly implicit in the Constitution. It referred to the authorisation of expropriation without any compensation being paid. This attempt also failed, because there wasn’t enough support for the amendment of the Constitution in the national legislature to achieve a two-thirds majority.
Despite these failures, the new Expropriation Bill was passed on 28 September 2022 and recently signed by president Cyril Ramaphosa. The aim of the Expropriation Act, without amending the Constitution, is to try and force the courts to depart from the historical application and interpretation of Sections 25(2) and 25(3) of the Constitution.
Read more about Sectoral Determination 13.
To be tested in courts
The new Expropriation Act will not only be tested against the wording of Sections 25(2) and 25(3) of the Constitution, but also against its historical application and interpretation in practice and by the courts.
In Mvelase vs Director-General of Rural Development and Land Reform 2019 (6) SA 597, the Land Court raised the question of whether those responsible for the failure of land reform will be held accountable. The court found that the department had compromised the constitutional security and future of all citizens, not just the rights of land claimants. South Africans, the ruling states, have been waiting for fair land reform for more than 25 years, some for centuries.
The department’s failure to manage and expedite land reform measures based on constitutional and statutory undertakings has had a severe negative impact on the land reform debate in the country. The ruling states that neither the Constitution nor the courts or South Africa’s laws are flawed or deficient, and that the crisis was rather caused by the institutional inability of the department to give effect to the Constitution and applicable legislation. – Hans-Jurie Moolman, Moolman & Pienaar Incorporated
For more information, email the author at hj@mmlaw.co.za or phone 018 297 8799 (Potchefstroom) or 033 032 0241 (Pietermaritzburg).
