𝗪𝗛𝗬 𝗘𝗫𝗣𝗥𝗢𝗣𝗥𝗜𝗔𝗧𝗜𝗢𝗡 𝗪𝗜𝗧𝗛𝗢𝗨𝗧 𝗖𝗢𝗠𝗣𝗘𝗡𝗦𝗔𝗧𝗜𝗢𝗡 𝗧𝗛𝗥𝗢𝗨𝗚𝗛 𝗧𝗛𝗘 𝗦𝗔 𝗘𝗫𝗣𝗥𝗢𝗣𝗥𝗜𝗔𝗧𝗜𝗢𝗡 𝗔𝗖𝗧 𝗜𝗦 𝗖𝗢𝗡𝗦𝗧𝗜𝗧𝗨𝗧𝗜𝗢𝗡𝗔𝗟

A very interesting debate has arisen on social media about whether the new Expropriation Act will enable the South African government to undertake expropriation without compensation in the absence of an amendment of Section 25 of the South African Constitution.

The only problem I see now is that, as usual, despite being empowered by the new legislation to take land without compensation in certain circumstances, black South Africans are once again caught up in analysis paralysis, instead of strategizing on how to use the tools provided by this new law—for the first time in democratic South African history—to sequestrate land stolen in 1913 and restore it to its rightful owners.

In my analysis, the simple failure of South Africans to understand that Section 25 of the Constitution, when read in its entirety, is not a clause meant solely to protect property rights but it is more to ensure redress, land reform, equitable distribution of resources and restitution to those dispossessed by apartheid. It is common cause that, in all circumstances, restitution for a crime or dispossession, supersedes the compensation of a beneficiary of the crime or dispossession, if compensation is due at all.

My understanding is that the new Expropriation Act is part of the legislation that the South African government was enjoined by Section 25(5) to create, in order to enable the state to ensure land reform, restitution, and equitable distribution of resources to all South Africans.

This new Act addresses the inability of the South African government to comply with Constitutional Court and Land Court rulings mandating restitution for dispossessed people, such as in District Six Committee and Others vs The Minister of Land and Others in the Land Court.

In the District Six case it was clear that the government has taken over 20 years to redress land dispossession because the government lacked the legal tools to sequestrate land occupied by beneficiaries of dispossession, without compensation.

Now, President Ramaphosa and his government have done well to create legislation (the new Expropriation Act) that empowers the Minister of Public Works and Infrastructure to expropriate (I choose to call it sequestrate) land from which people were dispossessed illegally since 19 June, 1913. The amount, manner, and timing of compensation can then be determined after redress for the original crime of dispossession has been remedied by restitution.

Opposing my view, individuals like Bass Kruger, with whom I have debated, insist that Section 25 of the Constitution prioritizes the protection of property and preemption rights of the beneficiaries of dispossession, and thus no expropriation or restitution can happen without compensation.

Many in South Africa, including my good friend Andile Mngxitama, believe this position, but it is based on ignoring other tenets of Section 25 of the same constitution.

Section 25(4) explicitly states that the purpose of Section 25 is to advance public interest through land reform and equitable access to South Africa’s resources for all people.

In fact, when Section 25(4) is read alongside Sections 25(5), 25(6), and 25(7), it becomes clear that the Constitution’s intention in this section, is to compel the government to create legislation to enable restitution and equity for victims of dispossession. It’s clear from the coercive thrust of the constitution in this section that restitution is paramount.

To fully appreciate the issue of compensation and its balance with restitution, we must examine Section 25(3), which states:

“The compensation and the manner and time of payment must be equitable, reflecting the equitable balance between public interest and the interests of those affected, having regard to relevant circumstances including:

(a) Current use of land.

(b) History of the acquisition and use of land.

(c) Extent of direct state investment and subsidy in acquisition and beneficial capital improvements of the property.

(d) Purpose of expropriation.”

What catches the eye here is the express indication that in the compensation negotiations, there needs to be a determination of the manner and timing of compensation in line with public interest. This implies that there are different forms of compensation, suggesting that monetary compensation may not be the only option. Additionally, this should be balanced with the public interest and the interest of “those affected”. But what is the public interest again according to the Section: the nation’s commitment to land reform and reforms to ensure an equitable distribution of natural resources to all South Africans.

Furthermore, the interests for such compensation include those affected. But who are those affected? The obvious affected parties are the person whose property is being expropriated. However, that person is not the only interested party, nor are they the only ones with property rights that need to be protected or remedied, especially considering that the person who was dispossessed of the property after 1913, should take precedence.

Now that we have established a hierarchy of claimants, we must apply the concept of restoration and restitution outlined in 25(7). Since dispossession occurred before the need for expropriation, restoring the person dispossessed should supersede compensating the person who benefited from dispossession emanating from discriminatory and racist laws that were deemed crimes against humanity, surely.

It’s clear from this section that, unlike the dominant interpretation that Section 25 that it is primarily about protecting property rights and granting preemption rights to beneficiaries of dispossession (settlers). The spirit of the section focuses on restitution, land reform, and addressing the skewed division of natural resources in South Africa caused by racially discriminatory apartheid laws.

The concept of compensating beneficiaries of dispossession who might lose property in which they have faulty title during this process, appears to be more of a political decision than a legal mandate, especially considering that restoring stolen property can, in itself, serve as compensation for the dispossessed as the perpetrator or beneficiary of the crime or dispossession has no just cause for compensation.

Thus, my understanding of Section 25 is that the right to preemption of property rights derived from colonialism and apartheid must come second to redress and restitution, which restores the original and only property rights of the natives dispossessed of the land.

It goes without saying that even in the Doctrine of Discovery, upon which colonial laws were established, this Discovery Law or Law of Nations recognized that natives had inherent rights and ownership of their land. According to the same law, colonizers were to have the first right (preemption right) to buy land from the natives when they want to sell, before the land could be sold to other colonizers or used for colonial use. The colonizers never adhered to this law.

To emphasize the importance of redress, Section 25(5) explicitly encourages the state to enact reasonable laws and other measures, within its available resources, to foster conditions enabling citizens to gain equitable access to land.

This shows that redressing past injustices was of paramount importance to the drafters of the Constitution for peace and harmony in the Republic, as outlined in its preamble. As such, the founders expected the government to create laws enabling redress. These laws should include mechanisms to sequestrate land taken illegitimately by colonial and apartheid governments after 19 June 1913, if restitution of the same land was to be possibles

Further reading of the Section and the Constitution’s preamble, confirms that South Africa’s Constitution is conversant of the fact that colonial and apartheid laws—deemed crimes against humanity—illegally dispossessed the majority of South Africans of their land and property through racial discrimination. As per the same Constitution and other laws, such possessions are illegal and should be rendered invalid under South African law.

This is corroborated by Sections 25(6) and 25(7), which explicitly mandate the government to grant South Africans legal tenure to land and property. Section 25(7), in particular, focuses on restitution or redress for this crime by stating that “a person or community dispossessed after 19 June 1913 as a result of discriminatory laws or practices is entitled, to the extent provided by an act of Parliament, either to the restoration of that property or to equitable redress”.

As argued above, the key to expropriation and compensation in the constitution is trying to balance the right to compensation for both the dispossessed and any person likely to lose their property to expropriation. I am not convinced however that such compensation was expressly meant for beneficiaries of dispossession or theft of that land. The reason being, once restoration is given to the dispossessed from the limited resources of govenment compensating the one who benefited from the dispossession would be tantamount to a waste of scarce resources that should be focused on redress and restitution, and it surely qualifies as unjust enrichment.

Another issue is, while emphasis is put on ensuring that the beneficiary of dispossession gets market price for their property, are the dispossessed being afforded the same generosity considering that cash compensation given to some groups previously have been a pittance that can’t afford them the luxury of buying replacement property now. And of course the absence of damages and compensation for the racial laws that kept them underprivileged.

The primary problem we face with the interpretation of Section 25 by many South Africans—and even some courts—is the assumption that compensation for the current possessor of the property to be expropriated must precede the restoration of the dispossessed. This assumption places undue importance on compensating the beneficiary of dispossession rather than prioritizing the restoration of the victim of dispossession.

This, in my view, is a misapplication of the law of restitution (restitutio in integrum), which only prioritizes restoring the victim of dispossession, delict or crime to their original position before the dispossession. Consequently, returning their land or property—i.e., restitution—should include compensation and damages paid by the beneficiary of the dispossession. At the same time, any unjust enrichment enjoyed by the dispossessor or their beneficiaries should be forfeited and returned to the victim as well. I need not emphasize the extent of this unjust enrichment that took Afrikaners and the English out of poverty at the expense of Africans who they oppressed, exploited and dispossessed.

I am in no doubt that the drafters of the Constitution intended to establish redress for the dispossession of land and natural resources caused by apartheid’s crime against humanity. To achieve this, they relied on the legal principle of restitutio in integrum, however, they left the responsibility of operationalizing this principle to the government, which was tasked with creating appropriate legislation for the purpose.

The government subsequently introduced the Restitution Act of South Africa, which, in my view, falls short. It neither ensures full restitution nor mandates the payment of damages or returning unjust enrichment by beneficiaries of dispossession to victims. It also fails to clarify what should take precedence: compensation for the beneficiary of dispossession or the restoration of the dispossessed. However, the order is self-evident, as restitutio in integrum and the payment of damages for delicts and crimes remain integral features of South African common law, commercial law, and case law.

This position is affirmed by the Constitutional Court case Azapo v. The President of the Republic of South Africa, which held:

“In line with Section 25(7) of the Constitution:

A person or community dispossessed after 9 June 1913 as a result of past racial discriminatory law or practices is entitled, to the extent provided by an act of Parliament:

a. Restitution (restoration) of that property, or

b. Equitable redress.”

This is further supported by the judgment in District Six Committee and Others v. Minister of Rural Development and Others, where the court deemed the government’s 20-year delay in providing restitution to the people of District Six a failure to uphold Section 7, 25(7) and 137 of the Constitution.

The same judgment emphasized that both the government and South Africans must cultivate a culture of timely implementation of constitutional mandates. This suggests that the remedying of the dispossessed’s right to restitution must not be delayed while waiting for compensation to be arranged for the beneficiaries of dispossession.

However, in cases like District Six, the government and courts face challenges in restoring land that remained occupied by beneficiaries of dispossession. This is because the state had not created adequate legislation to sequestrate or expropriate stolen land or property acquired through racial discrimination. Consequently, the government often had to seek vacant land to resettle claimants, resulting in delays that sometimes stretch for decades.

Given these precedents and the Constitution’s stipulation that the manner and timing of compensation should consider various circumstances, progressive black parties and civil activists in South Africa, must unite with capable lawyers to creatively and innovatively use the current Expropriation Act to ensure that courts prioritize restitution for the dispossessed over compensation for beneficiaries of the crime of dispossession.

Finally, if beneficiaries of dispossession are to be compensated after redress is granted to the dispossessed, it must be acknowledged that this is a potential waste of resources—a political decision with no basis in law.

As usual, the greatest challenge to the law in South Africa lies in its application by often incompetent or self-serving judges in the courts, some of whom perpetuate apartheid-era biases. Such judges should be retired and replaced with progressive ones, while the judiciary’s selection processes undergoes reform to ensure progressive and competent judges make it to the bench to deliver the reforms, restitution, fairness, equality and justice in distribution of natural resources as envisaged by the constitution.

Where court decisions blatantly diverge from public interest, fairness, and equality as they often do, in order to maintain apartheid, lawyers and civil activists must be encouraged to review the decisions of these neo-apartheid courts in multilateral courts governed by covenants like the International Covenant on the Suppression of The Crime of Apartheid, humanitarian law, decolonization law, and the Native Convention aimed at addressing the injustices of colonialism.

Written by Rutendo Matinyarare, Chairman of ZASM.