Land expropriation – what you need to know

Bulelwa Mabasa

By Bulelwa Mabasa, Director and land claims specialist at Werksmans Attorneys.

 
Section 25 of the Consitution sits within the Bill of Rights, together with rights such as the right to life, the right to an environment that is not harmful, the right to freedom and association and religion amongst others. 

 
The Bill of Rights is a cornerstone to our democracy. 
 
Section 25 deals with three fundamental concepts and these are: 
 
1) That no-one may be deprived of property except in terms of a law of general application (that loosely means that the law must apply to sections of the population equitably) and that no law may permit the arbitrary deprivation of property. In this regard, Section 25 speaks of property in a general sense, and does not limit itself to land. It is arguable therefore that Section 25 encompasses the protects from deprivation of property in a wider sense, such as assets, shares and movable assets  and not only land. In fact, it states pointedly in section 25(4)(b) that property is not limited to land.
 
2) Section 25 goes on to say that property may be expropriated for a public purpose or public benefit SUBJECT to JUST and EQUITABLE COMPENSATION.  
 
“Public interest” specifically includes land reform and the nation’s commitment to achieving equitable access to natural resources. Section 25 also includes a scheme and/or factors to be taken into account in the calculation of compensation and this includes the history of the acquisition of the property, the purpose of expropriation and market value is one of four factors. It is not the only factor, although the ANC government decided to use the “willing-buyer willing –seller” principle historically, which was contrary to section 25 of the Constitution. 
 
3) The third aspect of the clause, is a directive and an obligation placed on the State to ensure that it fosters conditions to ensure that citizens are able to gain access to land on an equitable basis. In this regard, access to land is not necessarily ownership. Access to land may mean leasehold and/or being able to use the land. This aspect also protects the security of tenure of historically disadvantaged communities w and those dispossessed of property after 19 June 1913, as a result of past racially discriminatory laws. Whilst section 25 protects against the deprivation of property arbitrarily it also, in section 25(8), says that nothing in the clause may impede the realisation of land reform. 
 
There are other rights enshrined in the Constitution such as the right to dignity and the right to practise one’s culture and religion. 
 
It may be argued that land reform and the obligation placed on the State to ensure access to land to historically disadvantaged communities must be read together with the right to human dignity and the right to practise one’s culture and religion. On the other hand, the right not to be deprived of property, may also be read together with the right to housing , however, this debate is centred squarely on section 25.


Latest


28 Sep 2020
An agile workforce is key to navigating the pandemic

By: Donné Nieman, Commercial Manager at Workforce Staffing Applications for the UIF/Temporary Employment Services (TES) grant to alleviate employee layoffs…

An agile workforce is key to navigating the pandemic

By: Donné Nieman, Commercial Manager at Workforce Staffing Applications for the UIF/Temporary Employment Services (TES) grant to alleviate employee layoffs has closed. But this was always going to be a temporary measure. The long-term implications of the COVID-19 pandemic on our economy will continue to resonate and be a permanent…

28 Sep 2020
The real reason you should be investing offshore

By: Chris Potgieter, Managing Director of Old Mutual Wealth Private Client Securities Discounting for a moment the state of the…

The real reason you should be investing offshore

By: Chris Potgieter, Managing Director of Old Mutual Wealth Private Client Securities Discounting for a moment the state of the local economy and one’s particular socio-political view, the key motivation for any investor to invest offshore should be to have appropriately diversified wealth in pursuit of real capital growth at…

21 Sep 2020
Women are lagging in retirement savings and are debilitated by stress

In a recent study of their client base, Momentum Corporate revealed that almost half (41%) of the employees on the…

Women are lagging in retirement savings and are debilitated by stress

In a recent study of their client base, Momentum Corporate revealed that almost half (41%) of the employees on the FundsAtWork Umbrella Funds are women. With an almost 50/50 gender split across the client base, a one-size-fits-all approach to advice on employee benefits simply won’t cut it. This is according…

15 Sep 2020
Despite COVID-19, SA investors expect higher future returns

Even as COVID-19 halted the longest economic expansion on record and plunged the world into deep recession, South African investors…

Despite COVID-19, SA investors expect higher future returns

Even as COVID-19 halted the longest economic expansion on record and plunged the world into deep recession, South African investors expect to make an average annual total return of 12.67% – almost 2% higher than the global average predicted returns of 10.9%. This was revealed in the recently released Schroders’…


Top stories


10 Apr 2020
When the going gets tough, farmers are on familiar territory

South African farmers are old hands at adapting to uncertain and daunting circumstances, and our local agricultural industry has proved…

When the going gets tough, farmers are on familiar territory

South African farmers are old hands at adapting to uncertain and daunting circumstances, and our local agricultural industry has proved to be most enterprising in acclimatising to challenges as they arise.

10 Sep 2020
How too much choice is draining your brain

By: Paul Nixon, head of technical marketing and behavioural finance at Momentum Investments From the words of Francis Scott Key…

How too much choice is draining your brain

By: Paul Nixon, head of technical marketing and behavioural finance at Momentum Investments From the words of Francis Scott Key that dubbed America “The land of the free”, which stuck, to the unforgettable Mel Gibson monologue where an army of painted Scots were willing to trade their lives for the…

13 Apr 2020
Investors should keep a reasonable investment allocation outside of SA

MoneyMarketing asked Roland Gräbe, the head of Tailored Fund Portfolios at Old Mutual Wealth, about offshore investments in the COVID-19…

Investors should keep a reasonable investment allocation outside of SA

MoneyMarketing asked Roland Gräbe, the head of Tailored Fund Portfolios at Old Mutual Wealth, about offshore investments in the COVID-19 environment and what form a global market recovery will take.

13 Apr 2020
SA’s Proposed Covid-19 Disaster Management Tax Relief

The National Treasury recently issued the draft Disaster Management Tax Relief Bill (Bill) for public comment by 15 April. The…

SA’s Proposed Covid-19 Disaster Management Tax Relief

The National Treasury recently issued the draft Disaster Management Tax Relief Bill (Bill) for public comment by 15 April. The draft Bill, together with its explanatory memorandum, provides clarity with regards the tax relief measures President Cyril Ramaphosa announced on 23 March.


Visit the official COVID-19 government website to stay informed: sacoronavirus.co.za