Oral submission on the 18th Constitutional Amendment Bill (section 25)

This is the oral submission on the 18th Amendment Bill, as delivered on Thursday 25 March 2021 in front of the Ad Hoc Committee to initiate legislation to amend section 25 of the Constitution. The written submission can be found here.

We are a group of various academic specialising in property law, and more specifically, section 25 of the Constitution. We made this submission under the guidance of the South African Research Chair in Property Law, currently awarded to Prof ZsaZsa Boggenpoel. We make the comments in our personal capacity based on our expertise formed after an extensive workshop and engagement on the Bill in February 2020. Our opinions are not those of our respective institutions.

I am professor Elmien du Plessis of the North West University, and I am deeply grateful for the invitation to present to the committee. Compensation for expropriation was the topic of my doctorate that I obtained in 2009, stemming from the talks at the time (2005) to move away from the “willing buyer willing seller” policy of acquiring land through market mechanisms.

My thesis called for a change in the legal culture of expropriation to move away from the fixation on market value standard that the Expropriation Act of 1975 required to the more Constitutional requirement of “just and equitable” compensation. And then, the thorny issue of exactly how one calculates “just and equitable” compensation.

It called for an interpretation that ensured justice and equity in every specific circumstance, which I argued, will facilitate the project of transformative constitutionalism to bring about large-scale social change through non-violent political processes grounded in law.

I am still committed to that vision.

That vision is also in line with the purpose of the chair in property law, namely: to develop the theoretical foundations to develop property law in the new constitutional are through the production of comprehensive academic texts and a corps of highly skilled young scholars that can help the development of property law. It is also for that reason that we participate in this process.

The saying that the wheels of justice grind slow is true. It is optimistic to think that a document could fix 350 plus years of colonial and apartheid injustices in just 26 years. Still, we should not disregard the strides that have been made in the law. Parliament has promulgated progressive legislation in many instances, and there are promises that the legislative gaps will be filled soon. Our courts have developed and continue to develop rich jurisprudence on various property law issues, a discussion beyond this presentation.

Nevertheless, the law and the judiciary are also not perfect. As is evident in the slow development of post-apartheid expropriation law.

This development was slow for various reasons.

For one, we have been waiting for Expropriation legislation in line with the Constitution. According to the portfolio committee on public works schedule, the Bill might be passed by July this year. This should be lauded, as it is a process that has been coming since 2008. And the Bill, as it currently stands, is making explicit what is implicit in the Constitution. As legislation should.

Constitutions are deliberately written in vague language because they are written to last for longer periods than the legislation that clarifies it. It is therefore not problematic that the section 25 is written in broad terms. Constitutions are the starting point for interpretation and require improvisation when confronted with a specific set of facts rather than a hard mechanical interpretation of particular wording. In Constitutions, there are no hard and fast rules. It is a framework; it lays down norms and principles.

The hard and fast rules are laid down in detailed legislation or refined in courts.

Another reason for the slow pace in the changes in expropriation law is that there has been very little jurisprudence on section 25 in the Land Reform context. We lack comprehensive judicial guidance on what “just and equitable” entails. This field pales, for instance, in comparison with the rich body of jurisprudence on the meaning of “just and equitable” in eviction law, which was developed over the years, where clear principles have crystallised that guides us to understand what is “just and equitable”.

With all this in mind, we must make recommendations to the committee to help you fulfil your mandate: to make explicit what is implicit.

The Constitutional Review Committee’s mandate was to ask whether South African’s think the Constitution should be amended by giving a simple yes or no answer. Yes or no questions remove the complexity from the conversation. It did not open a dialogue to diagnose land reform problems for us to make meaningful adjustments. In my observation, that is why people are having that conversation now. But you have had adequate inputs on the diagnosis of the failure of land reform, so let’s get back to the business of today.

That Constitutional Review Committee found that the answer is “yes”, he Constitution must be amended. Although we disagree, our submission will not dwell on the desirability or not of the amendment (we have elaborated on this elsewhere), and accept for now that that was the outcome of a democratic process.

This committee’s mandate is to “explicit what is implicit”, based on the previous committee’s recommendations. As such, this committee must clarify the legal position.

The Constitutional Review Committee report also indicated that there seem to be mainly two opinions on what is implicit. In that sense, this committee must first determine what is implicit before it can make explicit.

This will require an interpretative exercise of the Constitutional text, knowing that language often allows for more than one equally valid reading of the Constitution. And this process of reading and interpreting is not only reserved for court or lawyers, as we have witnessed through this process.

The discussions where the meaning is contested is an important element of Constitutional democracy. We have much-needed conversations in the process, laying down our visions for what a future South Africa should look like.

As part of an open community of interpreters of the Constitution, our submission is based on our legal expertise, clarifying what we regard as implicit, suggesting an amendment, and commenting on the draft amendment. Our underlying aim remains to develop property law that can serve as a catalyst for social change that is grounded in non-violent processes, and grounded in law.

In our opinion, a reading of section 25(3) that takes into account justice and equity, based on the open list of factors listed in the section, allows that in some instances, expropriation of land is possible at little or R0 compensation. It is a contextual question and will depend on the case. The duty to compensate remains, but the amount of compensation may be R0. The state will have to justify why that specific instance justifies R0 compensation to be paid. All this, we argue, is implicit in the current wording of section 25.

Based on this, we propose making explicit what is implicit can be done by adding wording, as you can see on the slide, either at the end of section 25(2)(b) or by adding a 25(3A) that states explicitly that in some instance, when taking account all the factors, it may be possible for compensation to be nil.

Therefore, we suggest that: After section 25(2)(b) or inserted as 25(3A) “provided that in certain instances, with consideration of all relevant factors and circumstances, it may be just and equitable for the amount of compensation to be nil”.)

Should you not be convinced by this, we comment on the current wording proposed.

The current proposal reads:

Provided that in accordance with subsection (3A) a court may, where land and improvements thereto are expropriated for purposes of land reform, determine that the amount of compensation is nil.

This can be interpreted as conferring exclusive authority to determine nil compensation to the courts. We had a fair amount of discussion on this during the workshop. In the end, we agreed that this will require the state to halt the process of expropriation in every instance where it contemplates R0 compensation to let the court decide whether it is just and equitable. Alternatively, the State can easily dodge this by offering minimal compensation. We also felt that it would be an administrator who will decide that this is an R0 case, prompting the person to refer it to the courts for confirmation. The administrator, in a sense, already made a decision.

That being said, the courts still have an essential role to play in this process. It has strong review powers – it can decide or approve – and has the ultimate authority in the case of disputes, but it should not be the initial decision-maker in this respect. It is also important then to ensure that the Expropriation Bill has sufficient and affordable internal mechanisms to handle disputes about the payment of compensation – as we argue in our submission to the proposed Expropriation Bill. The provision for mediation in the Bill is to be welcomed in this regard. The rumours of a more mediation friendly approach of the proposed Land Cout should also be welcomed and encouraged.

Proposed formulation for 2(b)

Provided that in accordance with subsection (3A) a court may, where land and improvements thereto are expropriated for purposes of land reform, determine that the amount of compensation is may be nil.

3A will then read

(3A) National legislation must, subject to sections (2) and (3), set out specific circumstances where a court may determine that the amount of compensation is may be nil.

“Expropriation without compensation” is coded language for so much. The driftwood of our nation’s collective soul is on display for all to observe, each through their own lenses. Everyone is clinging to the debris because we’ll be damned if we sink. Like any agitation of the soul, it is not always pleasant or pretty.

Because of the different meanings of the term, the conversations are muddled. And we have witnessed that also the past few days during these hearings.

From a clinical, legal perspective, the debate is frustrating. The term “expropriation without compensation” is a legal oxymoron. Expropriation requires compensation, even if it R0.

But it does not take long to realise that the debate is primarily not about the technical legal aspects. It is a Fanagalo of conversations in the maze leading to the heart of the nation.

The problems we face in land reform will not be solved in our lifetime. Nevertheless, we can plant the trees for future generations to sit under. We have to because the land question will not go away, and we cannot run from it.

Which leave you as a committee with the task to come up with sufficiently broad wording for the Constitutional amendment, in language that is characteristic of Constitutions, that will outlive us and provide guidance for the type of South Africa we, the people, envision.

And then to ensure that parliament passes or refines legislation that enables the change the Constitution envisions. Followed by the political will and the executive’s commitment to implements these laws fairly and thoroughly in properly functioning intuitions.

Thank you.

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