A dark cloud or the promise of rain - Section 25 and the fate of land restitution in SA

In recent years, there have been growing calls for land reformation and a fairer distribution of property in South Africa. Many have called for what is known as the expropriation of land without compensation, while others view this as an extremely dangerous and radical procedure. Despite the differences of opinion, we are currently observing what could become one of the most significant changes to land reform in the history of SA's democracy. Seemingly given the backseat in light of our current struggle against the Covid-19 pandemic, an amendment to section 25 of our Constitution is on the cards and could result in a variety of changes to the current state of land restitution.

As it stands, section 25 is a far-reaching provision of the Constitution that deals with security of tenure, property rights, and restitution for those previously discriminated against under colonial and Apartheid land practices. Section 25(1) begins by offering some assurance to property owners by stating:

"No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property."

Section 25(1) is followed up by s25(2)(a) & (b), which both deal with the manner of expropriation. S25(2)(a) states that property may only be expropriated for a "public purpose" or "public interest" while s25(2)(b) gives courts the power to determine the nature of the compensation thereof. What follows is a variety of different subsections pertaining to land tenure and remedies available to those previously deprived of their property through discriminatory practices. Included is the state's commitment to land reform (s25(4)(a)) as well the promotion of security of tenure for persons or communities affected on a racial basis (s25(6)). Furthermore, s25(7) offers relief through restitution to those previously dispossessed of land as a result of post-1913 discriminatory laws and practices. Finally, s25(8) appears to lay the foundation for state-led land restitution by providing:

"No provision of this Section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1) (the limitation clause)"

Some argue that this particular subsection already allows for the expropriation of land without compensation – a hot topic for South Africans of all creeds. However, before Covid-19 effectively brought the world to a standstill, the SA government was looking at bringing the incontestable ability to expropriate land at nil compensation into the Constitution itself. An amendment to section 25, overshadowed by the subsequent lockdown, was the topic of discussion between the government and the general public. Tackled by the Joint Constitutional Review Committee (Joint CRC), recommendations for a possible amendment included addressing the inequality of land distribution in SA, securing tenure amongst farm workers/tenants, and investigating state and provincial corruption that hinders land reformation.

Following these public engagements, the Joint CRC has recommended that Parliament, as a matter of urgency, amend s25 to allow for expropriation of land at nil compensation. In doing so, the Joint CRC has acknowledged that this could finally reverse the Apartheid practices (as well as the effects of the pre-Apartheid 1913 Land Act) that allowed for the wrongful dispossession of land and provide a framework to ensure land is distributed in a manner deemed fair and equitable. There are fears, however, that this could spark a mad rush by property owners to sell up and leave the country – bringing about further economic woes.

In theory, land reform would appear to be the best possible option for a country that has such a vast wealth gap, but beyond the legal jargon and legislation, would such an amendment work in practice? It is necessary to comment on a possibility that amending section 25 could have a devastating effect on our already stumbling economy. International history on land reform (similar to that proposed in the impending s25 amendment) provides an even split between failures such as Zimbabwe and successes like the gradual increase of landowners within Bolivia's working class. In essence, while South Africa's progression in respect of its most grievous inequality is of the utmost importance, it must be conducted in a manner that will not bring about more socio-economic harm than good.

In light of the conflict between those with property rights and the immense need of attainment for those without, perhaps a resolution can be sought which favours both sides and operates in the public's interest. A government audit performed back in 2017 portrayed the dire inequality in land ownership – with white South Africans still dominating in respect of ownership of private and rural land. This audit could be used to form the foundation for an equitable distribution of land set at nil compensation that won't prove detrimental to our economy. Land that is vacant or unused should be transferred to those without security of tenure as a matter of top priority. Furthermore, to aid in lessening the vast difference between land ownership by racial demographic, ownership of private property could be capped at a maximum size (and minimum size to ensure viability) per individual or family. Perhaps solutions such as those above could prevent a mass exodus of landowners who fear their property may be expropriated at random.

However, it would seem that nothing is risk-free and at this stage, the Constitutional amendment to section 25 is seemingly inevitable. Given the Joint CRC's strong recommendation to Parliament, we could see the legislature vote to pass the changes into law as early as this year. In fact, the revival of the Ad Hoc Committee dedicated to bringing this possibility to fruition was considered by the National Assembly on the 11th of June 2020.

At this stage, however, the amendment to s25 is still somewhat in limbo. Until it is passed, the Joint CRC anticipates lengthy and costly lawsuits involving landowners who would likely rely on the current constitutional provisions to prevent unpaid land loss. Furthermore, the proposed amendment will require a 2/3rd majority vote in the National Assembly in favour of its passing, and the ANC cannot do this alone.

However, as the country begins to open up, it may be advisable for property owners and non-owners alike to keep a watchful eye out for any developments concerning the proposed amendment. Until such time, we can only speculate as to the fate of land reform in SA and hope that the cloud approaching brings welcomed rain and not a devastating storm.