Malcolm Rivera
Section 25 of the South African Constitution has been a topic of debate, with some arguing for its amendment to explicitly allow for expropriation of land and property without compensation. This is particularly relevant in addressing property rights acquired during colonial and apartheid eras. On the other hand, some contend that the Constitution already enables expropriation without compensation under specific circumstances. Section 25 has been the subject of public hearings and parliamentary discussions, with the National Assembly proposing amendments to authorise expropriation for land reform. The interpretation and application of this section have also been the focus of legal cases such as Uys NO v. Msiza, demonstrating its significance in South African law and society. Understanding the purpose and implications of Section 25 is crucial for addressing historical injustices and shaping the country's future.
| Characteristics | Values |
|---|---|
| Purpose | To provide the procedures for replacing the president or vice president in the event of death, removal, resignation, or incapacitation |
| Expropriation of land and property | Allows for expropriation without compensation |
| Public participation | A democratic process that ensures lawmakers listen to the voices of the people when making laws |
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What You'll Learn
Property rights
Section 25 of the South African Constitution deals with property rights. It outlines the conditions under which property may be expropriated and the compensation that must be provided. According to Section 25, property may only be expropriated in terms of the law of general application for public purposes or in the public interest. This means that the government can take private property for public use, such as building roads or infrastructure projects, but it must provide fair compensation to the property owner.
The issue of land reform and the expropriation of land without compensation has been a highly debated topic in South Africa. Some argue that Section 25 is an impediment to land reform, as it protects property rights acquired during the colonial and apartheid eras. They advocate for amending the Constitution to explicitly allow for expropriation without compensation. In 2018, the Joint Constitutional Review Committee (Joint CRC) conducted public hearings to gather input on the possible amendment of Section 25. The committee found that there was unequal and skewed ownership of land in the country, and recommended that the Constitution be amended to allow for expropriation without compensation.
However, others oppose amending Section 25, arguing that the Constitution already allows for expropriation without compensation in certain circumstances. They point to Section 2(a), which states that property may be expropriated for public purposes or in the public interest, and Section 25(2)(b), which provides for nil compensation in certain cases. Additionally, they argue that amending Section 25 could have negative economic consequences and deter foreign investment.
The debate around Section 25 highlights the complex and contentious nature of land reform in South Africa. While there are valid concerns about addressing historical injustices and unequal land ownership, there are also worries about the economic implications and the protection of property rights. As of 2023, the 6th Parliament is working on finalizing the recommended amendment to Section 25, with the Ad Hoc Committee inviting all interested and affected parties to participate in the 18th Amendment of the Constitution.
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Expropriation of land without compensation
Section 25 of the Constitution is the topic of much debate in South Africa, with some arguing that it is an impediment to the expropriation of land without compensation and needs to be amended. This is because certain provisions within Section 25 are seen as protecting property rights acquired during colonial and apartheid eras.
Section 25 (2) (b) and Section 25 (3) are particularly contentious. The former states that property may be expropriated only for public purposes or in the public interest, subject to compensation. The latter outlines that the compensation amount and its manner and timing of payment must be just and equitable, reflecting a balance between the public interest and the interests of those affected.
There are two opposing views on this matter. One view supports the amendment of Section 25 to explicitly allow for expropriation without compensation in certain circumstances, such as land reform. This recommendation is based on the argument that the Constitution already permits expropriation without compensation in specific cases.
The other view opposes amending Section 25, arguing that the Constitution already allows for expropriation without compensation under Section 2 (a). They recommend repealing the Expropriation Act (63 of 1975) and aligning the draft Expropriation Bill with Section 25 instead.
The South African Parliament is currently working on finalizing the recommended amendment, ensuring public participation in the process as mandated by the Constitution. The Ad Hoc Committee on Section 25 has been collecting public inputs and will return the Bill to the National Assembly (NA) for a vote on the 18th Amendment of the Constitution. If passed, the Bill will then be referred to the National Council of Provinces (NCOP) for further engagement.
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Public participation in law-making
In South Africa, the constitution mandates that the public must be involved in all Parliament's processes, including law-making. This is to ensure that the voices of the people are heard during the creation of laws.
One example of public participation in law-making is the 18th Amendment of the Constitution, relating to Section 25. Section 25 of the Constitution deals with property rights and expropriation. The first view of this section is that it is an impediment to the expropriation of land without compensation, protecting property rights acquired during colonial and apartheid days. The opposing view is that the Constitution already allows for expropriation without compensation, as stated in Section 2(a). Those who hold this view recommended that Parliament repeal the Expropriation Act (63 of 1975) and align the draft Expropriation Bill with Section 25.
The Ad Hoc Committee on Section 25 held countrywide public hearings on the expropriation of land without compensation in 2020. Following these hearings, the Committee considered its draft programme and public participation report in February 2021. The National Assembly then decided to amend Section 25 of the Constitution to authorise the expropriation of land for land reform purposes, as supported by the Supreme Court of Appeal's judgment in Uys NO v Msiza.
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Court decisions on compensation
Section 25 of the South African Constitution deals with property rights and the expropriation of land and property. The interpretation and application of Section 25, particularly subsections 25(1), 25(2)(b), and 25(3), have been the subject of debate and proposed amendments.
The South African court system has played a crucial role in interpreting and applying Section 25, specifically regarding compensation in cases of expropriation. The Land Claims Court in *Msiza v Director-General, Department of Rural Development and Land Reform* (2016) (5) SA 513 (LCC) interpreted Section 25(2) as allowing for expropriation for land reform purposes, subject to just and equitable compensation as outlined in Section 25(3). This interpretation suggested that the Constitution permits nil or below-market-value compensation in certain circumstances, such as when the expropriation serves a "constitutionally special purpose" like land reform.
However, the Supreme Court of Appeal in *Uys NO v Msiza* (2018) (3) SA 440 (SCA) appeared to implicitly reject this interpretation. This decision influenced the National Assembly's decision to amend Section 25 to explicitly authorise expropriation without compensation for land reform purposes, as identified in an Act of Parliament.
The Ad Hoc Committee on Section 25 was established to consider public inputs on the proposed amendment, ensuring public participation in the democratic process. The committee held countrywide public hearings on expropriation without compensation, demonstrating the ongoing debate and engagement with this aspect of Section 25.
The interpretation of Section 25 regarding compensation has significant implications for property rights and land reform in South Africa. While some argue that the current wording impedes expropriation without compensation, others contend that the Constitution already allows for it in certain circumstances. The courts' decisions have shaped legislative amendments, reflecting the dynamic interplay between judicial interpretation and legislative action in shaping the country's constitutional framework.
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Constitutional amendments
Amending the constitution is a significant undertaking in any democratic country, and South Africa is no exception. Section 25 of the South African Constitution has been the subject of much debate and proposed changes in recent years. This section deals with property rights and the conditions under which the state can expropriate land and property, which is a highly sensitive and complex issue.
The debate surrounding Section 25 centres on two opposing views. The first view holds that Section 25, particularly Sections 25(1), 25(2)(b), and 25(3), protects property rights acquired during the colonial and apartheid eras. This interpretation argues that these sections impede the expropriation of land without compensation and, therefore, need to be amended to facilitate land reform. The second perspective asserts that the Constitution already enables expropriation without compensation, pointing to Section 2(a), which states that expropriation may occur for public purposes according to applicable laws.
Those advocating for the amendment of Section 25 recommend that any changes should explicitly authorise the expropriation of land and property without compensation in certain circumstances. They urge Parliament to establish a mechanism for this amendment and pass a Constitutional Amendment Bill to enable expropriation without compensation. Additionally, they suggest that the Expropriation Act of 1975 be repealed and that the Expropriation Bill be aligned with the amended Section 25.
On the other hand, those opposed to amending Section 25 argue that it is unnecessary. They contend that the current Constitution already provides for nil or below-market-value compensation in specific situations, as interpreted by academic commentators and supported by court judgments.
The process of amending the Constitution involves public participation, with the Ad Hoc Committee inviting all interested and affected parties to contribute their inputs. This democratic process ensures that lawmakers consider the voices of the people when making laws. After considering public inputs, the Ad Hoc Committee will return the Bill to the National Assembly (NA) for a vote. If the NA passes the amendment, the Bill will then be referred to the National Council of Provinces (NCOP) for further engagement with the provinces.
In summary, the proposed amendment to Section 25 of the South African Constitution aims to address the sensitive issue of land and property expropriation, seeking to balance property rights with the need for land reform. While some argue for explicit authorisation of expropriation without compensation, others believe the current Constitution already provides for this under specific circumstances. The amendment process involves public participation and requires approval from both the National Assembly and the National Council of Provinces.
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