The law, together with civil society’s oversight role, will lead the way to reform

The debate on the expropriation of land without compensation dominates South Africans’ everyday conversation, leaving us with the false belief that we are the only country with this “problem” and feeling helpless regarding solutions.

At the United Nations, there has been a call for a special rapporteur on the rights to land to arrive at holistic solutions. The most recent example is the Colombian reconciliation process, which has made the return of land a precondition for future peace.

The other method for finding viable solutions is through comparison of the common features of the social, economic, political and legal issues in a few countries. A local solution is then crafted out of that process.

The land laws in South Africa, India and Brazil were influenced by the historical understanding of property laws, rooted in their colonial past, which proved to be tenacious in the courts. Additional measures had to be implemented to attend to this legacy in land reform policy.

This is the point at which South Africa finds itself now, as it attempts to deal with the festering wound of land dispossession. It is about achieving equality and dealing with the trampled dignity of its people.

Both South Africa and Brazil took a negotiated approach, whereas India opted for the executive route, in which the state’s constitutional powers were used to redefine the rights of all parties on the land issue. But it is in the expropriation of land for redistribution that the laws in all three countries stumble to a near halt.

It is at that point that some might argue that the law and the courts are caught in the headlights, which is exacerbated because the resolution of cases take so long. The report of South Africa’s High Level Panel on Assessment of Key Legislation and Acceleration of Fundamental Change, published in December 2017, stated that it will take another 12 years for claims to be finalised according to the existing annual performance plan.

In Brazil, the Movimento dos Trabalhadores Rurais Sem Terra was successful in mobilising people to occupy land to clarify the tenure on it through the courts. Their occupations underscore the plight of the landless by identifying potential land for redistribution. Once identified, the land was ready for expropriation.

The growth of a grassroots organisation such as Abahlali baseMjondolo, which represents informal housing occupants and was started in KwaZulu-Natal, shows that the demand for land is growing more strident. Of course, the Economic Freedom Fighters (EFF) have put the issue on the national agenda.

Civil society in India has protested against the taking of property by the state and has called for more efficient land reform. There are also similarities in the Constitutions of each of these countries, each signalling the importance of the right to property. Although India initially had limited legislation to clarify the mechanisms of land reform, Brazil and South Africa are better equipped, even if legislation does not guarantee the smooth transition of land to the poor.

In South Africa, the Expropriation Bill of 2008 has been shelved after it promised to speed up land expropriation. Its critics say the legislation is too broad and takes away the rights of farmers to obtain market value prices for their land.

The power of white farmers to air their grievances through allegations of land grabs may affect investor confidence in South Africa as the government does not want to be labelled another “Zimbabwe”. Instead, the policy of the government has been to negotiate with the farmer, leading to inevitable delays, corruption and rising costs for expropriation.

The idea that compensation ought to be paid in the confiscation of land is relatively new. It came into focus in 1938, long after Native Americans had been driven off their land. Under the Hull Formula, when oil fields belonging to American investors were expropriated by Mexico, it was stated that expropriation must be for a public purpose, nondiscriminatory, performed under due process of law and accompanied by prompt and adequate compensation.

Mexico did not agree to the payment of compensation. Therefore the payment of compensation for expropriated land is not a settled principle of law. It also rings hollow in the history of land dispossession. The modern practice is to include a compensation clause in the bilateral investment treaties between the countries that makes it binding between the parties. But it is not an established legal practice.

The rights of property holders with regard to the level of compensation appear to be evaluated on similar norms. In Brazil “prior and fair” compensation is required and “just and equitable” in South Africa, whereas India was preoccupied with the principle of arbitrary deprivation of property and the various ways to dismantle the crippling effect that had on land reform.

The content of these norms are not always self-evident and different courts, often in the same country, have interpreted them differently. In Brazil, India and South Africa, the qualifications for the taking of public property in the public interest have to meet certain thresholds. The current debate on expropriation without compensation in South Africa is similar to the Mexican reply to the United States.

South Africa’s Restitution of Land Rights Act provides that property that is productive may not be feasible for expropriation when considered with other relevant factors. The Brazilian Constitution states that productive property cannot be expropriated. Although the Brazilian Constitution permits expropriation after a consideration of the “social function” of the property, the South African Constitution provides that property may be expropriated “for the public purpose or in the public interest” and land reform has been deemed to be a legitimate public purpose.

South Africa’s Land Claims Court has ruled that the best method to calculate “just and equitable” compensation was to determine the market value and thereafter subtract or add to the market value depending on the facts of each case. The criteria of market value appear to be the primary concern in expropriation cases, largely due to our understanding of property law. No other criteria feature as strongly in the current valuation of land.

The irony is that there was no market value when the land was first taken. The effect is that an overemphasis on market value, ignoring other factors, has created a double benefit — first under apartheid-era dispossession and then under market value, which results in a windfall of profiteering. Market value must be considered together with other factors. It is likely that a court can come to the conclusion that “just and equitable” compensation is one where no payment needs to be made once all factors are considered.

Rather than leave that up to the courts, the EFF is proposing that no compensation be paid in all cases where people were dispossessed of their lands under apartheid laws.

South Africa’s Constitutional Court has not been faced with this issue of determining “just and equitable” compensation. A number of legal experts argue that, if and when such a case comes before the court, the content of what is “just and equitable” will be clarified and that will be the law. So there is no need for any amendments to the Constitution.

The fear of garnering hostility from white farmers has caused land reform to slow down, as have corrupt practices and high compensation payments. Indeed, some indication of a similar concern in Brazil is found in its Constitution, which provides for payment “in agrarian debt bonds with a clause providing for maintenance of the real value, redeemable within a period of up to 20 years computed as from the second year of issue”. So the cost of expropriation must also be manageable for the state.

There are certainly great parallels in the struggle to achieve equitable land distribution. It is not clear that law is the best avenue to achieve land reform, even though there might be political will to do so. Critics say that there is a bias in the legal system, favouring ownership at the expense of other claims. But if the original confiscation of land is unjust, there can be no settled title. The argument goes: if there was theft, anyone who bought the stolen property cannot have ownership and cannot pass ownership on. The difficulty is how to settle all the competing claims fairly in the full knowledge that apartheid laws were not legitimate.

But the law seems to be necessary to quell the mounting emotions attached to land expropriation. It might be better to define the role of the courts as a mediator between parties, enforcing the requirement of “meaningful negotiation”. Perhaps, if the courts order a consequence for failing to “meaningfully negotiate”, quicker progress might be made.

The histories of all three countries also indicate that it is not enough to leave the process to legislators alone. The role and function of civil society is crucial in keeping the public focused on the issue of land rights because not all are easily persuaded that land redistribution is fundamental to progress for all. Social pressure appears to be persuasive in defining the substantive content of laws dealing with land restitution.

Dr Vinodh Jaichand is a founding member of the Africa Land Advisory Group and the former head of the school of law at the University of the Witwatersrand. This article is based on a chapter in Transformative Constitutionalism: Comparing the Apex Courts of Brazil, Indiaand South Africa

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