Writing in 1995 for a unanimous Constitutional Court, Judge Ismail Mahomed expressed reservations about constitutional amendments on the grounds of principle.
A constitutional amendment may comply with the formal procedures, he said, but, where it “radically and fundamentally restructures and re-organises” the fundamental premises of the Constitution, it would not qualify as an amendment at all and hence would be unconstitutional.
The jurisprudential logic of the proposition was simple enough: the power to amend the Constitution did not include the power to abrogate the Constitution.
Attractive as the formulation was, it raised the question: What are the “fundamental premises” of the Constitution, which, if altered, amounted to abrogation and not amendment?
Citing a precedent of the Indian Supreme Court, Mahomed postulated four elements, which he termed “basic features” of the Constitution: the rule of law, the principle of equality, the independence of the judiciary and judicial review.
Mahomed’s formulation was never adopted by the Constitutional Court. When the United Democratic Movement (UDM) challenged a constitutional amendment, which enabled politicians to retain their parliamentary seats despite changing their political parties, the court dismissed the application, finding it unnecessary to pass comment on the contentious topic of amendments that would “abrogate or destroy the Constitution”.
The proposed amendments to section 25 (the property clause) of the Constitution do not abrogate or destroy the basic structure of the Constitution. But for adherents of private property, any discussion about an amendment to the section is projected as a death knell.
A moment’s reflection on the past 20 years might help to place their objections in their proper context. In 1996, when the Constitution was being certified, section 25 in its present form was up for debate. Objectors argued that the section should not be included because it failed to protect private property and that expropriation subject to “just and equitable” compensation conflicted with international norms.
What they had in mind were three goals: to entrench the unqualified right to private property; to assert market-based compensation as the default position in expropriation; and to limit state power to expropriate only for public purposes, not for land reform.
All the arguments failed. The court refused to endorse an unbridled right to private property. It noted that no universal principle was discernible on compensation and each country had a different model, influenced by its unique history and context.
For South Africa, the power to expropriate in the public interest, including for land reform, subject to payment of just and equitable compensation, was appropriate. And there the debate ended.
For two decades, the state had the constitutional power to expropriate, subject to just and equitable compensation. The modalities, it was envisaged, would be in legislation.
The power of expropriation for land reform has never been tested in our courts by the state. In cases of restitution, successive Land Claims Court judges have continued to grapple with the interpretation of just and equitable compensation, ultimately reaching the seeming consensus to apply “the two-stage test”.
This rests on the premise that market-based compensation must be used as a point of departure, after which — the second stage — the just and equitable factors mentioned in section 25(3) of the Constitution can be applied to adjust the price upwards or downwards.
The explanation for the test was that market-based compensation is practical and easily calculable, but no figure can be placed on the other considerations, such as the manner of acquisition of the land in question.
The flaws are demonstrable. The Constitution does not countenance the imposition of the market-based standard as a yardstick — justice and equity are its telos.
It is also folly to assume that market-based compensation is easily calculable. Experience proves that many subjective, random and arbitrary factors are taken into account in valuing property “prices” by valuers. The very notion of the “market” is itself incapable of precise definition.
It was these considerations that lay at the heart of the Msiza vs the Director General for the Department of Rural Development and Land Reform and Others judgment of the Land Claims Court, which specifically ruled for compensation lower than market value. Although Msiza was overturned at the Supreme Court of Appeal, the state elected not to test the principle on appeal before the Constitutional Court, further prolonging the uncertainty about the correct application of section 25(3) of the Constitution.
Mahomed’s principled caution about constitutional amendments must resonate at this point. Section 25 is contained in the Bill of Rights, which is a cornerstone of democracy. In the UDM case, the court refused to endorse the argument that our Constitution contains an unalterable “basic structure”.
Despite this, as good constitutional practice, amendments to the Bill of Rights should be resorted to sparingly. The values of accountability and responsiveness, contained in section 1 of the Constitution, require that constitutional justification should exist before any amendment to the Bill of Rights is contemplated.
So far, the case for an amendment to section 25 has been thin. The evidence is that the state has failed to give effect to its constitutional mandate to achieve equitable access to land for all. It has failed to restitute a sufficient number of land claims by those who were dispossessed on racial grounds after the 1913 Natives Land Act, and it has not been able to provide secure tenure for those with precarious tenure on the land.
The failure of the state to implement the Constitution cannot be grounds to amend the Constitution. No explanation has been given by the state why the 1975 Expropriation Act remains in our statute books.
But it is indisputable that the failures of the state to achieve land reform have exacerbated the structural inequality caused by apartheid-enforced land hunger.
Now, recent urban migration (local and regional) has imposed greater and unbearable burdens on the local sphere of government. Greedy landowners and property speculators have placed an impossible financial burden on the national fiscus. Farmers routinely eject labour tenants and statutorily protected occupiers from farms on insubstantial grounds. Corrupt bureaucrats, often working in tandem with landowners, have ignored constitutional injunctions and rendered land reform a commercial enterprise, rather than a matter of justice. Dysfunctional governmental departments are seemingly unable to perform basic clerical tasks, such as telling the nation the full extent of land registered in the name of the state.
Today, South Africa faces the twin crises of land reform and land administration. Although the history of colonial dispossession is responsible for constructing a state in which race mirrors private property, this can no longer be accepted as the sole explanation for the crises.
Poverty, unemployment and the poor quality of education have also drastically curtailed the ability of black people to obtain property in the open market. Race remains the stubborn determinant of whether one has property or not. This is what colonialism and apartheid achieved. But the constitutional promise was to reverse this. Hence, it is plainly and undeniably urgent for a constitutional solution to be found.
Politicians have recently found common, although constitutionally imperfect, ground as the solution for the time being: the state must have the power to expropriate land without compensation in certain instances.
Although constitutional objections have been raised, the point is that a constitutional amendment cannot be unconstitutional. Once an amendment is procedurally included in the text of the Constitution — in the case of section 25 by a two-thirds majority — it must be read consistently with the balance of the Constitution.
How to go about this, then? Certain principles must underpin the proposed amendment to maintain the balance with the remainder of the Constitution.
- Expropriation subject to just and equitable compensation should remain the default position.
- Expropriation without compensation should be available in clearly defined circumstances, such as absentee landlords, unused land, hopelessly indebted land, land held by speculators, land acquired by illegal means such as corruption or fraud, and unproductive land.
- The determination whether it is just and equitable to expropriate without compensation should be made by the courts, not politicians.
- To avoid elite capture, expropriation without compensation should be employed solely for the three purposes underpinning section 25: to facilitate restitution, to ensure security of tenure and to ensure access to land on an equitable basis.
- The procedures for expropriation without compensation must be clearly laid out in legislation and be subject to judicial review.
- National legislation setting out the procedures to be followed, the powers of the state, the rights of landowners and beneficiaries and procedures for judicial review is urgent.
The crisis of land in South Africa is of historical origin. Although, since the adoption of the Constitution, progress has been slow, it is now possible for a breakthrough to be found.
But a change in the empowering legislation is only the starting point. Land reform requires an expansive strategy, including confronting corruption, strengthening institutions, allocating resources and acting within the framework of the law.
Alarmist pronouncements, mischievous comparisons with “the Zimbabwe situation” and racial mobilisation do nothing to contribute to the crucial national moment at hand.
Tembeka Ngcukaitobi is a human rights lawyer. He is the author of The Land Is Ours: South Africa’s First Black Lawyers and the Birth of Constitutionalism (Penguin)