Land expropriation without compensation – understanding the legalities

Legally speaking, is land expropriation without compensation allowed? That is, will the government under the current legal framework be able to acquire land without having to pay the current legal owner?


Land expropriation without compensation now

The answer to this question lies in the law, specifically, the Constitution. Section 25(2) of the Constitution currently says (emphasis added):

Property may be expropriated only in terms of law of general application—

(a)  for a public purpose or in the public interest; and (b)  subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

Section 25(3) says (emphasis added):

The amount of the compensation and the time and manner of payment must be just and equitable, …

There are 2 views as to whether the following provisions allow for land expropriation without compensation. One view holds that the Constitution already makes provision for the state to practice land expropriation without compensation and the Constitutional amendment is not needed. According to this view, section 25(3) means that if it is just and equitable, the amount of compensation is allowed to be set at zero.

The second view holds that no provision in the Constitution should be read without taking context from the rest of the Constitution. When read in context of the rest of s 25 and the entire Constitution, land expropriation without compensation, even for land reform purposes, could not be within Constitutional parameters.

Changing the constitution

It appears that Parliament has taken the second view. The EFF and the ANC, leading the charge, have opted for a change to the Constitution. The next question that arises is whether the Constitution can actually be changed.

Parliament is allowed to amend the Constitution. The provisions that would be changed are part of the Bill of Rights (Chapter 2). Thus, according to section 74(2):

Chapter 2 may be amended by a Bill passed by—

(a)  the National Assembly, with a supporting vote of at least two thirds of its members; and

(b)  the National Council of Provinces, with a supporting vote of at least six provinces.

A two thirds majority in Parliament is needed to change this Constitutional provision.

So what now?

An ad hoc Constitutional Review Committee has been established. This committee deals with proposals to amend the Constitution. Its job is to review and decide whether to amend the Constitution. If it decides to amend the Constitution, it will have to draft the amendment. Any amendments will have to approved by a two thirds majority in Parliament.

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