The Parliamentary Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of Constitution gazetted the 18th Constitutional amendment in December.
Parliamentary legal services proposed the wording after consolidating the inputs made in the committee. The bill had to be drafted in such a way as to get majority support for the publication of the amendment.
A committee meeting on December 3 showed that the parties, including the ANC, were not in agreement with suggestion.
A subsequent meeting on December 5 was almost derailed when the ANC wanted their amendments to be published too.
In the end, the decision was taken that the proposal that the majority of the committee could agree to, should be published, to allow for the parties to independently comment on the proposal.
It is important to remember that the mandate of the committee is to make explicit that which is implicit with regards to the expropriation of land without compensation for land reform purposes. Leave aside for a moment that there is no consensus of what is implicit: the committee’s mandate is restricted to the calculation of compensation only.
The amended section will read (with the underlying words the amendment): (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: Provided that in accordance with subsection (3A) a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.
Last week, in an interview, ANC MP and committee chairperson Mathole Motshekg stated that “[t]he minister can make the decision, determine the price – that does not exclude the jurisdiction of the courts. Aggrieved parties may go to courts afterwards and say I am not satisfied with this. The court will be the arbiter.”
Motshekga presumably referred to the amendment only, rather than bypassing the role of the court entirely.
Bypassing the courts would be unconstitutional.
Many commentators reacted in outrage that it will now be in the hands of the executive to decide on expropriation and the amount of compensation and that this is a radical departure of the current legal position. It is not.
Expropriation is a unique state power that allows the state to acquire property for public purposes (or in the public interest), following a fair procedure and against payment of compensation. The power to expropriate stems from legislation, that usually provides that a Minister may expropriate property.
The executive executes the legislation.
In terms of the Expropriation Act of 1975, this power lies with the Minister of Public Works.
But, for instance, the National Roads Act gives powers to the Minister of Transport to expropriate property for building roads. On provincial and local levels, executives have similar power prescribed in legislation.
Legislation curtails these powers and prescribes how it must be exercised. Decisions and the amount of compensation must be justified. Our compensation standard is “just and equitable”.
This requires the weighing up of the different interests and taking various factors into account. What is implicit is that there might be instances where this weighing up process leads to compensation being R0 (or nil).
But the state will have to justify this; it cannot just be an arbitrary thumb-suck.
The legislation will also set out the public purpose (or interest) for the expropriation. Even with the constitutional amendment, the state will not be able to expropriate property for redistribution purposes without proper legislation authorising it and setting out what the property will be used for after acquisition.
Without appropriate authorising legislation, the executive cannot expropriate in any case.
This whole procedure is subject to administrative law. Should it not be for a valid public purpose, if the procedure was not followed, or if the expropriated person disagrees with the amount of compensation, the decision can go on appeal. If the administrative process does not provide relief, it is possible to approach the courts.
In that case, section 25(2)(b) give extensive powers to the courts to “approve or decide” the compensation amount. The courts, therefore, have the last word in the determination of compensation, not the first.
In this sense, the announcement of the ANC is not a change in the current position, but a confirmation of it.
It is, of course, possible to have the conversation whether the calculation of R0 compensation (being exceptional) should be indeed be left to the courts alone. But this is not without problems. It is not for the courts to administer the legislation. They should only mediate disputes, and in doing so, they can lay down principles and guidelines for decision-makers.
What has been notably absent from analysis and conversations is the question role of the Valuer-General in all this, and how such a process will work.
There is a profound distrust of the executive – and with good reason.
The courts have also recently pronounced on the massive failures in land reform administration, that is no fault of the Constitution.
The amendment of the Constitution is rushed through in a low-trust environment, where accountability for the shortcomings of land reform is lacking, through a committee with the limited mandate to make “explicit what is implicit”.
In such an environment, communication is difficult, every utterance regarded with suspicion, and consensus almost impossible.
** Elmien du Plessis is an associate professor of constitutional law at the North West University.