Changing the Constitution alone won't do it ...

Of all the 17 constitutional amendments of the past 25 years, none has been as controversial as the amendment to the inaptly named ‘property clause’ in section 25. In a lengthy, detailed examination of the implications of this proposed amendment, Advocate Tembeka Ngcukaitobi, author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of the Constitution, says we should draw a distinction between two separate acts. The act of expropriation and the decision to compensate the owner of expropriated property. The state retains the right to expropriate, but not the power to decide on compensation, he writes in an analysis in the Mail & Guardian. As has always been the case, the power to decide whether compensation for expropriated land should be paid or not lies with the courts, not the government. This has always been the case. Another feature of the amendment, notes Ngcukaitobi, is the role of national legislation. Not all land will be liable to compulsory acquisition with no compensation. Only those categories identified in national legislation. The framework of section 25 is premised on the idea of ‘striking a balance’ between the interests of the land owners and those without land. National legislation, however, may tip the balance, where justifiable. But it would be arbitrary to identify a particular piece of ground for expropriation for no compensation. Only the identification of general categories will pass constitutional muster. Factors such as history of acquisition, current use and state investment, already contained in section 25, might be helpful pointers towards the identification of the classes of land.

The amendment places the spotlight firmly on the rule of law. Ngcukaitobi notes the centrality of courts as arbiters of disputes in society is entrenched in the Constitution. Not only is the law supreme, judicial pronouncements are final and binding on other organs of state. The amendment affirms this. Only a court may decide whether compensation is to be paid. A flexible standard that is just and equitable should still be applicable in cases of disputes over compensation. Unless legislation further elucidates the content of justice and equity, courts will operate from a blank slate. Many will view this as slowing down land reform, because disputes about compensation are notoriously slow to resolve in courts. Yet the rule of law is a crucial safeguard against the rule of the strong. Another important element of the rule of law is absence of wide executive discretion. The amendment curtails this by leaving the contours of the law to the legislature, which should define three important aspects: Which land, for what payment and for what purpose? Ngcukaitobi concludes with a question: 'Bearing in mind the emotional, intellectual and financial investment that has gone into the project of ‘expropriation without compensation’, was the exercise worth it?' He adds: 'In one sense, yes. It brought home the reality that land reform must be anchored in the rule of law. And many now appear to accept this as true. But in another sense, no. The true challenge of land reform still lies in the combination of weak and dysfunctional institutional structures, corrupt officials, greedy land owners, absence of a people-centred ethics in the political class and failures of the legislature to translate the Constitution into tangible laws. It is by refocusing the debate to these known challenges that land reform can be meaningful. And no constitutional amendment can resolve this challenge.

Full analysis in the Mail & Guardian