A Legal Analysis of Expropriation of Land without Compensation in South Africa

Abstract

For decades, land reform and land redistribution have been tensely contested issues across the entire African continent. It is particularly worse in countries that experienced the wrath of colonisation, and imperialism, and apartheid in the case of South Africa. This is because the historical dispossessions of land resulted in major displacements, disenfranchisements, underdevelopment, socio-economic vulnerabilities, and thus, poverty in the end. To a large extent, such abysmal experiences of land dispossessions are responsible for the present pervasive social and economic inequalities besieging majority of proletariat masses. Worth noting is the fact that even after the passing of the Universal Declaration of Human Rights Convention of 1948, human rights violations against the native people of South Africa continued unabated. Against this backdrop, this mini-dissertation set out to conduct a critical analysis on whether expropriation of land without compensation is practicable, at least constitutionally speaking, especially within the context of rights-based approaches to property law, juxtaposed with the post 1994 truth and reconciliation initiatives, and the Constitution’s so-called transformative agenda. It is appreciated that section 25 of the Constitution, 1996 in its present does not prohibit expropriation of land. However, it is asserted that to enhance necessary impetus to the law, the decision of the National Assembly (legislature) to embark on a process of amending section 25 is justified. This is because there is a need to expressly insert a clause or sub-clause which shall, with absolute certainty, enable expropriation of land without compensation in order that the post-1994 dispensation does not get caught on the wrong side of constitutional supremacy system of governance. The fact that the legislature embarked on a process that seeks to conform to the rule of law is commendable, because it confirms a widespread commitment of transforming the country’s social, legal and political realities, within the confines of the Constitution