Land Reform

• Jurisdiction: South Africa
• Published date: 10 March 2021
• Pages: 885-940
• DOI: https://doi.org/10.47348/YSAL/v1/i1a16
• Date: 10 March 2021
• Citation: 2019/2020 YSAL 885
• Author: Pienaar, J.

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1. INTRODUCTION

South Africa has a un ique land reform programme th at consists of three

inter-connected sub -programmes, embedded in the Const itution,1 in the

property clause. In th is regard, the parameters for the redistribut ion, tenure

reform and restitution sub-prog rammes are found respect ively in s25(5),

25(6) and 25(7). Under s 25(4)(a) the public interest includes the nation’s

commitment to land reform and to re forms to bring about equitable access to

all South Africa’s natural resources. De spite grappling with land reform for

roughly three decades, embodyi ng an initial land reform program me under

the previous government in 1991 and a more encompassing program me after

1994, progress has been slow. Increasingly dichotomies and dis connects

emerge, calling for urgent attention and re form. At the heart of current

attempts to ameliorate the lack of progress i n land reform, is the drive to

amend the property clause to e nable expropriation with nil compensation.

However, given the prevailing problems – of which some have also been

underlined in recent cas e law – it is debatable whether the amendment of

s25 will indeed spee d up and promote land reform.

This chapter provides an overview of t he latest legislative and case law

developments dealing with s25 a nd the endeavour to amend it, as well as

the sub-programmes of red istribution, tenure reform and restitution.

2. LEGISLATION

2.1 INTRODUCTION

While land reform had re mained contentious during t he report period, the

main focus was the po ssible amendment of s25 of the Con stitution so as

to enable expropriation with nil compen sation, specifically for land refor m

* B Iuris LLB LLM LLD (PU for CHE); Professor of Law, University of Stellenbosch.

1 Constitution of the Republic of South Africa, 1996 (hereinafter ‘the Constitution’).

Land ReformLand Reform

Juanita Pienaar*

2019/2020 YSAL 885

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purposes. In th is regard, the long-awaited Draft Constitution Eighteenth

Amendment Bill (Draft Bill),2 aimed at amending s 25, was published on

13 December 2019 for comment.

The Bill was the product of a long process of writte n and oral submissions

and various meetings by t he Constitutional Review Committe e, mandated

by the National Assembly to review s25 of the Con stitution.3 Immediately

before the publication of the Draft Bill i n December 2019, a workshop was

conducted by the Committee on 6–7 November ‘to make explicit that which

is implicit in the Constitut ion’, namely that ‘expropriation of land without

compensation is a legitimate opt ion for land reform’. During the November

workshop, two options for the amendment of s25 were canvasse d, with a

third option being subm itted at the last minute by the EFF. Whereas the

two first-mentioned options suggested spe cific amendments to s 25 while

still endorsing private ownership, the EFF option underscor ed that the ‘state

should be custodian’ of land and natu ral resources, coupled by a specific

provision that ‘property may be expropriated without compensation’.

Notably, the draft Bill that was finally published i n December 2019 did not

resemble any of the three opt ions canvassed at the November workshop.

The declaration of a national state of dis aster mid-March 2020 due to the

COVID-19 pandemic also impacted on the review process of s25. The initia l

date for conclusion of the process was 31 March 2020, which was extended

to 29 May 2020; the date on which the term of the review committee,

established on 25 July 2019, expired. Due to the lockdown and corresponding

regulations, the process to be fol lowed by the review committee, including

public hearings nation-wide, could understandably not be continued a nd

completed. On 1 July 2020, the review committee was re-establishe d, with

the same composition and powers as its predecessor. The comm ittee has

until 31 December 2020 to table a Bill. The possibil ity of completing virt ual

public hearings relating to t he Draft Constitution Eighteenth A mendment

Bill is now being explored.

2.2 CONSTITUTION EIGHTEENTH AMENDMENT BILL: AMENDING

THE PROPERTY CLAUSE

2.2.1 Aim

The aim of the Bill is em bodied in the Memorandum to the Bill a nd in

the long title. Essentially, the aim of the Bill i s to amend the Constitution

so as to provide specifically for expropri ation ‘without the payment of

2 In GG 42902 of 13 December 2019.

3 Available online at: http://pmg.org.za/committee-meeting/28123 – Parliamentary

Monitoring Group. See also Advisory Panel on Land Reform and Agriculture Final Report of the

Presidential Advisory Panel on Land Reform and Agriculture (4 May 2019) https://www.gov.za/

documents/final-report-presidential-advisory-panel-land-reform-and-agriculture-2019-0000.

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compensation’. In this regard, the focus is on al lowing the state to expropriate

land in the public interest without compen sation, as well as to provide for

corresponding mecha nisms. The point of depart ure was formulated as

follows:

Section 25 of the Con stitution must be amended to make explicit t hat

which is implicit in t he Constitution, with reg ards to expropriation

without compensation, as a leg itimate option for land refor m, so as

to address the histor ic wrongs caused by the arbitrary dis possession

of land, and in doing so en sure equitable access to land and furt her

empower the majority of South Af ricans to be productive part icipants

in ownership, food secu rity and agricultural r eform programs.

The long title of the Draft Bil l furthermore highlights the a mendment of the

Constitution to provide that where land and any improvements there on are

expropriated for the purposes of la nd reform, the amount of compensation

payable may be nil, and to provide for matters connected therewit h. Note

in this regard t he interchangeable use of the phrases ‘expropriation without

compensation’ and ‘expropriation with nil compensation’.

2.2.2 Preamble

The preamble is important for context ualisation and interpretation pur poses

and warrants scruti ny as forming part of the new di spensation envisaged

by the Draft Bill. In t his regard the following formulat ion is interesting:

‘… a need for urgent and accelerated land reform in order to address the

injustices of the past that were in flicted on the majorit y of South Africans

and especially as t he hunger for land amongst the dispossessed is palpable and

the dispossessed are of the vie w that very little is being done to redress the skewed

land ownership pattern.’ (Own emphasis.)

It is furthermore repeated t hat the idea behind the amendment is to make

explicit that which is implicit and th at this approach is a legitimate option

for land reform. It will also cont ribute to the redress of the histor ic wrongs

caused by the arbitrary di spossession of land, as well as to fur ther ensure

equitable access to land and to empower the majority of South Af ricans to be

productive participants in ownersh ip, food security and ag ricultural reform

programm es.

2.2 .3 New a mendments

At an overarching level, three amend ments to s 25 are suggested:

a new s 25(2)(b), amendment of s25(3) and a new s25(3A). Herewith the

amendments:

(b) subject to compensat ion, the amount of which and t he time

and manner of payment of wh ich have either been agreed to by

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