Attaining Justice through ‘Just and Equitable Compensation': A critique of South African courts' current approach to section 25(3) of The Constitution, and determining whether ‘Expropriation without Compensation' may be considered ‘Just and Equitable'

Arend, Ayesha

Attaining Justice through ‘Just and Equitable Compensation': A critique of South African courts' current approach to section 25(3) of The Constitution, and determining whether ‘Expropriation without Compensation' may be considered ‘Just and Equitable'

Master Thesis

2020

Abstract

The land debate regarding just and equitable compensation and the potential 'expropriation without compensation' amendment to section 25 of the Constitution of the Republic of South Africa1 has been a contentious issue in South Africa over the past year. Owing to colonialism and the apartheid regime, secured land rights and control were reserved for the white minority. This resulted in the mass dispossession of land that was owned and/or controlled by black, coloured and Asian people. In light of our country's deplorable history of land dispossession, section 25(1) of the Constitution was included to command that no person be deprived of property except in terms of law of general application. In addition, in accordance with section 25(2), property may be expropriated only in terms of law of general application for a public purpose and subject to compensation. However, despite the inclusion of these transformative provisions, 25 years into our constitutional democracy, a large portion of previously disadvantaged individuals remain disadvantaged owing to socio-economic oppression, their inability to secure land rights and the country's slow-moving land reform process. This dissertation is based on the notion that transformation in the area of land reform has been conducted at a glacial pace, owing to South African courts' market value-centred approach to determining just and equitable compensation amounts that are to be awarded in expropriation cases. By analysing sections 25(2), 25(3) and 25(8) of the Constitution, the courts' constitutional jurisprudence and academic literature, this dissertation aims to investigate whether it is necessary for the courts to re-evaluate the approaches taken during the initial stages of land reform; considering the need for a speedier land reform process. Upon considering the current composition of section 25(3), I contend that if the courts alter their approach to legal interpretation by placing more weight on a purposive approach when interpreting this section's requirement of 'just and equitable compensation', the results of expropriation cases will give effect to the transformative values that underpin section 25 - hence the Constitution need not be amended to allow for expropriation without compensation in order to give effect to land reform as envisioned in section 25(8). This increased purposive approach to interpretation will encourage the courts to adopt an inclusive interpretation of 'just and equitable compensation' which allows for the expropriation of land with compensation, without compensation and with partial compensation.

Keywords

Constitutional and Administrative Law

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