Simone Lawson
Section 25 of the South African Constitution is also known as the Property Clause. In 2018, the Joint Constitutional Review Committee (Joint CRC) conducted public hearings to gather input on the Amendment of Section 25. The hearings revealed two opposing views: one side argued that Section 25 impedes the expropriation of land without compensation and needs to be amended, while the other side contended that the Constitution already permits expropriation without compensation. The National Assembly subsequently adopted the Joint CRC's report on the review of Section 25, and an ad hoc committee was established to initiate legislation amending this section of the Constitution.
| Characteristics | Values |
|---|---|
| Amendment | To address historic wrongs of land dispossession, ensure fair access to land and empower the majority of South Africans |
| Public participation | The Joint CRC conducted public hearings in all provinces of South Africa in 2018 to get public input on the Amendment of Section 25 of the Constitution |
| Public opinion | Two opposing views: Section 25 needs to be amended to address unequal land ownership and tenure security; the Constitution already allows for expropriation without compensation |
| Parliamentary process | The National Assembly adopted the Joint Constitutional Review Committee's Report on the review of Section 25 in December 2018, and an ad hoc committee was established to initiate legislation amending the section |
| Current status | The 6th Parliament is working on finalising the recommended amendment to Section 25 |
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What You'll Learn
Public hearings on Section 25 amendments
South Africa's Constitution is clear about the need for public participation in all its processes, including law-making. In line with this, the Joint Constitutional Review Committee (Joint CRC) conducted public hearings in all provinces of South Africa in 2018 to get public input on the Amendment of Section 25 of the Constitution.
The public hearings were held to address the expropriation of land without compensation as a legitimate option for land reform. The hearings concluded with two opposing main views. The first view was that Section 25 is an impediment to the expropriation of land without compensation and needs to be amended. Sections 25 (1), 25 (2) (b) and 25(3) were highlighted as problematic, with these provisions seen to be protecting property rights acquired during colonial and apartheid eras. The second view was that the Constitution already allows for expropriation without compensation, supported by Section (2) (a), which states that property may be expropriated in terms of the law of general application for public purposes.
The Joint CRC compiled a report and tabled it in the National Assembly (NA). The report listed the following key issues arising from public inputs: unequal and skewed ownership of land in the country, and the need to assure the security of tenure for farmworkers, farm tenants, and those residing on communal land held in a Trust.
Following these hearings, the National Assembly established an ad hoc committee in July 2019 to initiate and introduce legislation amending Section 25 of the Constitution. The Ad Hoc Committee will return the Bill to the NA after taking all public inputs into consideration. The Members in the NA will then vote on the 18th Amendment of the Constitution. If passed, the Bill will be referred to the National Council of Provinces (NCOP) for engagement with the provinces.
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Expropriation of land without compensation
Section 25 of the South African Constitution is currently under review. The review process began in February 2018 when the National Assembly adopted a motion proposed by the EFF, with amendments by the ANC, that Parliament's Constitutional Review Committee investigates mechanisms through which land can be expropriated without compensation.
The Joint Constitutional Review Committee (Joint CRC) conducted public hearings across all provinces of South Africa from 26 June 2018 to 4 August 2018. The purpose of these hearings was to gather public input on the amendment of Section 25 of the Constitution, specifically regarding the expropriation of land without compensation. The hearings revealed two opposing main views. The first view is that Section 25 is an obstacle to land expropriation without compensation and needs to be amended to address historic wrongs of land dispossession, ensure fair access to land, and empower the majority of South Africans. Those holding this view argue that Sections 25 (1), 25 (2) (b), and 25(3) protect property rights acquired during colonial and apartheid eras. The second view is that the Constitution already allows for expropriation without compensation, supported by Section (2) (a), which states that property may be expropriated for public purposes according to the law of general application.
On December 4, 2018, the National Assembly adopted the Joint Constitutional Review Committee's report on the review of Section 25, with 209 MPs voting in favor, 91 against, and no abstentions. The National Council of Provinces also adopted the report on December 5, 2018, with the majority of provinces voting in favor and only the Western Cape voting against. Following this, the National Assembly established an ad hoc committee to initiate and introduce legislation amending Section 25.
On March 19, 2019, the National Assembly approved the report of the Ad Hoc Committee but resolved that it could not finalize the amendment during that term of Parliament. It recommended that the sixth Parliament be tasked with finalizing the amendment of Section 25. The National Assembly established another ad hoc committee on July 25, 2019, to continue the process of initiating and introducing legislation for the amendment. This committee will consider all public inputs and make recommendations to the National Assembly for voting on the 18th Amendment of the Constitution.
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Addressing historic wrongs of land dispossession
Section 25 of the South African Constitution has been the subject of much debate and proposed amendments in recent years, with a focus on addressing historic wrongs of land dispossession. The issue centres around the expropriation of land and property without compensation, which is seen as a way to rectify past injustices and transform land ownership in the country.
In February 2018, the National Assembly proposed that Parliament's Constitutional Review Committee investigate mechanisms for expropriation without compensation, specifically addressing Section 25. The Joint Constitutional Review Committee (Joint CRC) was then mandated to propose constitutional amendments and conducted public hearings across South Africa to gather input. These hearings revealed two opposing views: one side advocated for amending Section 25, arguing that it hinders expropriation without compensation and protects property rights acquired during colonial and apartheid eras. The other side maintained that the Constitution already permits expropriation without compensation under certain circumstances.
The Joint CRC's report, adopted by the National Assembly in December 2018, recommended establishing an ad hoc committee to initiate legislation amending Section 25. This committee was tasked with addressing the historic wrongs of land dispossession, ensuring fair access to land, and empowering the majority of South Africans. The report also emphasised the need to assure the security of tenure for farmworkers, farm tenants, and those on communal land held in trust.
The process of amending Section 25 continued with the sixth Parliament, which was tasked with finalising the amendment. In March 2019, the National Assembly approved the report of the Ad Hoc Committee and established another ad hoc committee to initiate legislation amending Section 25, taking into account previous recommendations. This committee's work led to the introduction of a Constitutional Amendment Bill, which, if passed, would allow for expropriation without compensation and address the historic injustices of land dispossession in South Africa.
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Security of tenure for farmworkers
Section 25 of the South African Constitution is currently under review by the country's Parliament. The review process began in February 2018 when the National Assembly adopted a motion to investigate mechanisms for expropriating land without compensation. The Joint Constitutional Review Committee (Joint CRC) was tasked with proposing the necessary constitutional amendments and conducting public hearings to gather input.
The security of tenure for farmworkers is one of the key issues that arose from these public hearings. The Joint CRC's report, which was tabled in the National Assembly, highlighted the need to assure the security of tenure for farmworkers, farm tenants, and those residing on communal land held in a Trust. This issue is particularly relevant given the unequal and skewed ownership of land in the country.
The current review of Section 25 aims to address historical wrongs of land dispossession and ensure fair access to land for all South Africans. One of the recommendations arising from the public hearings is to amend Section 25 to explicitly state the expropriation of land without compensation as a legitimate option for land reform. This amendment would address the concern that Section 25, particularly Sections 25(1), 25(2)(b), and 25(3), protect property rights acquired during colonial and apartheid eras.
However, there are opposing views on whether Section 25 needs to be amended. Some argue that the Constitution already allows for expropriation without compensation, as supported by Section 2(a), which states that property may be expropriated for public purposes according to the law of general application. Those opposed to the amendment recommend repealing the Expropriation Act (63 of 1975) instead.
The review process of Section 25 has progressed through various stages, with the National Assembly and the National Council of Provinces adopting the Joint CRC's report. An ad hoc committee was established to initiate and introduce legislation amending Section 25, and the National Assembly approved the report of this committee. The sixth Parliament is currently working on finalising the recommended amendment to Section 25.
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Public participation in law-making
In February 2018, the National Assembly adopted a motion to investigate mechanisms for expropriation without compensation, leading to the establishment of the Joint Constitutional Review Committee (Joint CRC). The Joint CRC conducted public hearings across all provinces from June to August 2018, seeking input on the proposed amendment to Section 25. The hearings aimed to address questions such as whether Section 25 hindered expropriation without compensation and what changes were needed for its proper implementation.
The public hearings concluded with two opposing main views. One view held that Section 25 needed to be amended to address historic wrongs of land dispossession and ensure fair access to land. Proponents of this view argued that Sections 25 (1), 25 (2) (b), and 25 (3) protected property rights acquired during colonial and apartheid eras. The other view asserted that the Constitution already allowed for expropriation without compensation, pointing to Section (2) (a).
The Joint CRC compiled and submitted a report on the review of Section 25 to the National Assembly, which was adopted in December 2018. An ad hoc committee was then established to initiate and introduce legislation amending Section 25. The National Assembly approved the report of the ad hoc committee in March 2019 and recommended that the sixth Parliament finalise the amendment. This process demonstrates how public participation in law-making was facilitated during the review of Section 25, ensuring that the voices of South African citizens were heard and considered in the legislative process.
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Frequently asked questions
Section 25 of the South African Constitution is the Property Clause, which deals with the expropriation of land and property.
The purpose of the public hearings is to get input from the public on the Amendment of Section 25 of the Constitution, specifically on the expropriation of land without compensation.
There are two opposing main views. The first view is that Section 25 is an obstacle to the expropriation of land without compensation and needs to be amended. The second view is that the Constitution already allows for expropriation without compensation and that Section 25 protects property rights acquired during colonial and apartheid days.
The Joint Constitutional Review Committee recommended that Parliament establish a mechanism to amend Section 25 of the Constitution to explicitly state the expropriation of land without compensation as a legitimate option for land reform.
The National Assembly has established an ad hoc committee to initiate and introduce legislation amending Section 25 of the Constitution. The sixth Parliament is working on finalizing this recommended amendment.
