The South African land question: expropriation of land and the constitutional limits

Authored By:Bonga Sibisi

University of Zululand

Abstract

This article examines the ongoing South African land question, analysing the constitutional limits of land of expropriation and how the states attempt to redress historical injustices particularly with land dispossession. It takes a look at the effectiveness of the constitutional and national provisions that aim to restore land or compensate communities displaced as a result of apartheid laws. The article demonstrates the how the judiciary balances restitution and protection of existing property rights.it concludes by showcasing that the constitution not only protects these rights but slows down the restitution process as a result leaving many unresolved cases there fore the constitution needs to align with transformative land justice.

INTRODUCTION

The South African land question has been an issue within the republic for period ranging back to the apartheid era. It generally consists of the battle of redressing the historical injustices that resulted in unfair and forceful dispossession of land from the native and indigenous people of South Africa, dominantly due to their racial background. This type of treatment endured by the natives resulted in many of the black people losing possession of their land to the minority which were the white settlers. This matter still remains to be an issue in the modern democratic society due to the fact that till this day there are still native people who have not been given their rightful possession of this land regardless of the fact the constitution has provided remedies which allow for individuals and communities who have been unfairly dispossessed of land due to past discriminatory laws or acts during the apartheid era, to be able to lay claim to that land given the fact that they have proof that that land rightfully belongs to them. Pre colonial and apartheid laws such as the native land act which at the time legally allowed for the forceful and removal of natives from their land and restricted the native’s ability of land ownership to only 7 percent of the total land population, as a result of this act the many black people had to abandon their and relocate to poor homelands. The Group Areas Act is an act that segregated people into groups according to their racial background, this therefore prevented people from different tribes and races from living together in the same area. The objective of this article is to analyse the effectivity of the constitutions efforts towards land reform.

RESEARCH METHODOLOGY

This article aims is comprised of analytical research methodology by breaking down and examining the effectivity of the constitutions attempts towards constitutional land reform without infringing on the rights of other individuals. The article focuses on provisions such as s25 of the constitution by analysing, defining and explaining in broader terms the purpose of this provision as well identifying the flaws that have been associated with this provision, the same analysis method mentioned above will also be used on restitution of lands act. The article also contains an analysis on other primary sources such as case laws that focus specifically on the matter and provide a more practical application of the existing legal framework and how the judiciary plays its role in the maintenance and application of the law. With the combination of all the primary sources used in this research the article analysis showcases the complex issues surrounding the expropriation of land question within the borders of the republic.

BODY

Legal framework: national provisions of the republic

The land restitution act

This act is an act that was introduced in the year 1994 after the country gained its independence from the white settlers and everyone within the republic was given the opportunity to vote for a democratic party of their choice. The purpose of this act is to address the injustices endured by the native people of the republic for so many years, caused by the apartheid system that specifically related to land dispossession. The primary focus is to offer assistance to those individuals, groups and communities that were unfairly dispossessed of their rights to land due to racially discriminatory laws that were passed after the year of June 1913. An example would be the natives land act, this act was one of the core racially discriminatory South African laws enacted in June 19 1913 this act single handedly reduced and restricted the ability of native south African to have land ownership to an astonishing 7 percent of the total land population by prohibiting the black people from buying, owning or leasing land which was not in the reserves designated specifically for black people. The overall purpose of this act was to divide the land of south Africa into two areas essentially, being the native areas and the white areas but the downside being that the white minority population owning 93 percent of the total land population and allocating the remaining to the natives. Another discriminatory law that was passed during the apartheid era would be the Group Areas Act the purpose of this act was to segregate all of the south African natives according to their racial backgrounds this meant that whites, blacks, Indians etc races each had to stay in their designated areas and it was illegal to stay with people if a different race. The LRA act offered assistance to the people who were dispossessed of their land by returning the land to the rightful owners or in cases where it was the rights to the land could not be returned, financial compensation was provided to the rightful beneficiaries of that said land. As a result of this act the commission on restitution of land rights the lands claim court was created to facilitate and adjudicate disputes. This then gave eligible individuals, groups or communities the ability to file a claim requesting for the rights in respect of the land to be returned or to receive fair and equitable financial compensation.

The Constitution

Within the borders of the South Africa the constitution is the supreme law of the republic; law, conduct inconsistent with it is invalid, and the obligations and the obligations imposed by it must be fulfilled. Section 25 of the constitution protects the property rights of an individual and lays out the procedures to be followed by the state when expropriating land, it further reads that no one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation due to these constitutional provisions any acts of deprivation done to individuals was declared invalid there fore previous provisions such the natives land act and the group areas act were deemed to be inconsistent with the constitution and therefore declared invalid. With the declaration of invalidity of these provisions the native people were now free to own property stay where ever they desired etc without being discriminated against

Judicial Interpretation

Florence case

In the case of Florence V Government of the Republic Of South Africa the family of Lionel Florence had entered into an agreement to purchase property from Dr Yeller but due to the racially discriminatory laws of the apartheid era the transfer of property was disallowed and they were forced to return the property back Dr Yeller and they were refunded a fair and equitable for compensation of being dispossessed. In 1995 Lionel Florence lodged a claim for the restitution of land under the RLR Act, the court held that the earlier the compensation was too low and therefore increased the compensation for the Florence family.

Goedgelegen Tropical Fruits Case

in the case of Department of Land Affairs V Goedgelegen Tropical Fruits an African community known as the Moloto community which lived and worked on the Doornkop farm for generations was forcefully removed from their land due to the racially discriminatory practices from the apartheid period. The court held that the Moloto community was a valid community and that they were dispossessed from their land due to the racial discrimination under the apartheid system, this thus confirmed their eligibility for restitution or compensation.

Salem Party Club Case

In the case of Salem Party Club and Others v Salem Community and Others which concerns a large piece of land in the Eastern Cape was occupied by a black community which used it for living and grazing and activities. In the 1940s the land was taken over by white settlers regardless of the fact that the land was already being used by black people and they had their homes and occupations reduced or destroyed. The Salem community a claim under RLR act in which they sought restitution, upon further investigation, the court held that the Salem community had customary rights over the land and that they were dispossessed unfairly due to racial discriminatory actions, they were therefore entitled to restitution or compensation under the RLR act.

Critical Analysis

Upon further personal investigation and analysis on the above-mentioned provisions which section 25 and the RLR act, it has been made clear that the process of restitution of land has met. S25 protects the existing property rights of an individual by ensuring that expropriation be in the interest of the public or have public purpose but most importantly also that expropriation is subject to compensation, this slows down the process of the restitution of the property. The right to compensation is a noticeable obstacle as in order for the restitution to take place the rights of the current owners must be protected regardless of how the current owners acquired the property in the first place and in order for these rights to be protected the amount of compensation given to the current owners must be just and equitable. Another challenge would be the required time frame to which individuals or communities could apply for restitution meaning, individuals and communities could only apply if the they were dispossessed after the year of 1913 while many individuals and groups have been dispossessed of their land before that time frame such as the Khoisan people which or the tribes that owned and used these lands long before the year 1913, this not only limits the ability of the RLR act in the restitution process but it also leaves many historical injustices unresolved. This therefore forces courts to comprise and choose between the old injustices that and the current rights of all the people in the current democratic society.

Recent Development

As of late there have been proposed amendments to the to s25 which are still being debated the amendments being that the s25 allow the expropriation of land without compensation for land reform purposes and in order to address a majority of the historic wrongs in land dispossession, ensure fair and access to land and empower the majority of south Africans. But the amendment has not come become law yet as it is still under more scrutiny and that in order for it to be passed it requires the that the majority of the NA and the NCOP to be in agreeance with the said amendments as well as public hearings and public comment.

Suggestions

Upon review suggestions on the country should move on this issue should depend on the land in question. Abolishing the right to compensation is too harsh of an amendment to the provision but there should be instead an established system that determines the just and equitableness of compensation in order for there to be a balance with rights of the individual and the reform objectives. There should also be an investigation conducted as to how the current owners of the property acquired the unfairness and discriminatory method of acquisition should also play a role in the process of determining the compensation amount. S25 should be amended to the extent that it aligns with the land reform objectives of the RLR act in order to ensure a more smooth and clear restitution process.

Conclusion

This article showcased that the South African land question still remains to be a very complex challenge in the republic deeply rooted in the in the historic injustices that were brought about by the apartheid era, the racially discriminating legislation of the past still continues to shape contemporary land ownership patterns. it also examined the effectivity of the modern democratic provisions that were created specifically to challenge and subdue the effects of past legislation. Judicial interpretation was analysed through cases considered to be of landmark importance, these cases are the Florence, Goedgenlen Tropical Fruits and Salem Party Club cases, they showcased the role of the judiciary in the property rights restitution process. The importance of this matter can not be overstated as without effective and fair restitution of land in the republic, that would mean the current government undermines the historic unfair grievances and inequalities endured by the people in the past. Therefore, the question of land in south Africa is not merely about restitution but also about how restitution should be carried out in a Morden democratic society based on human dignity, equality and freedom.

Bibliography

Case law

Florence v Government of the republic of South Africa (CCT 127/13) [ 2014] ZACC 22
Department of Land Affairs V Goedgelegen Tropical Fruits (2007) (CC)
Salem Party Club and Others v Salem Community and Others (2017)

Legislation