Real Estate Investor Magazine South Africa April 2018 - 100th Issue! | Page 17

COVER STORY
T
owards the end of February, the National Assembly
adopted the EFF’s motion to amend the Constitu-
tion to allow expropriation without compensation.
The proposed changes are to be made to section 25, com-
monly named the property clause.
Is now the time to pack our bags and flee? Or is this yet
another example of, as Professor Steven Friedman puts it, a
crisis followed by a compromise? In order to understand this,
we need to peel back the layers and look at the facts.
Section 25
During the previous land expropriation debate, back in 2017,
DA Shadow Minister of Science and Technology Annelie
Lotriet highlighted the fact that: “Section 25 does not guar-
antee property rights, but merely protects it from arbitrary
state interference. Deprivation that is not arbitrary is per-
missible.”
Bulelwa Mabasa, director and land claims specialist at
Werksmans Attorneys echoes this: “as it stands at the mo-
ment, each case of expropriation is dealt with individually.
The State may, in certain cases, already justify expropriation
without compensation. But section 25 does not support un-
limited and unfettered expropriation without compensation
as a law of general application.”
Section 25 (2) says: "Property may be expropriated only in
terms of law of general application — (a) for a public pur-
pose or in the public interest; (b) subject to compensation,
the amount of which and the time and manner of payment of
which have either been agreed to by those affected or decided
or approved by a court.”
While it’s regularly quoted in day-to-day conversation, the
Constitution does not make any reference to “willing buy-
er, willing seller.” Instead, section 25(3) lists the criteria for
compensation: "The amount of the compensation … must be
just and equitable, reflecting an equitable balance between
the public interest and the interest of those affected, having
regard to all relevant circumstances, including – (a) the cur-
rent use of the property; (b) the history of acquisition and use
of the property; (c) the market value of the property; (d) the
extent of direct state investment and subsidy in the acquisi-
tion and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.”
“Willing buyer, willing seller” would refer to the market
value of the property being paid upon expropriation, only one
of the possible conditions - and one that can be overruled
with ease.
Even so, Carol Patton, Deputy editor of Business Day,
explains that this has not been the route that events have
followed: “Primarily because the state has hardly used expro-
priation at all and where it has, has tended to pay the market
value for land, even as section 25(3) states is not the only
criterion by which to determine compensation.”
This could very well change, if rhetoric is anything to go
by. Recently, Rural Development and Land Reform Minister,
Maite Nkoana-Mashabane said that she is preparing for a
test case to expropriate land without compensation.
At the same time, several cases of land invasion popped
up around the country. Dumisani Hlope, a political analyst,
warned that these illegal occupations would continue as long
as people feel that politicians fail to deliver on promises made
during election seasons. Agri SA’s head of the Centre of Ex-
cellence on Land, Annelize Crosby, cautioned that: “Most
of these invasions are taking place in urban areas and not
SA Real Estate Investor Magazine APRIL/MAY 2018
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