Expropriation without compensation: how to change the Constitution

At the end of last year, the national conference of the African National Congress (ANC) decided to start the process of amending section 25 of the Constitution to allow for land expropriation without compensation. However, this decision was qualified by the requirement that the Constitution would only be amended if it would not negatively impact on the agriculture, food security or other sectors such as financial services. It is unclear whether (and if so, how) these requirements could be met, but if we assume for arguments sake that the process of amendment will go ahead, how would this be done?

Section 25(2) of the Constitution currently states that property may be expropriated only in terms of law of general application for a public purpose or in the public interest; and subject to compensation. Section 25(3) makes clear that the amount of compensation (which must either be agreed upon by the parties or decided or approved by a court), need not be equal to the market value of the property.

What is required is the payment of “just and equitable” compensation, reflecting an equitable balance between the public interest (including the pressing interest in land redistribution) and the interests of those affected:

having regard to all relevant circumstances, including the current use of the property; the history of the acquisition and use of the property; the market value of the property; the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and the purpose of the expropriation.

This means that the circumstances of each case will have to be assessed to decide what amount of compensation the state would have to pay for expropriated land. Obviously, if the land is expropriated to effect redistribution; the property is not being used productively; and the owners of the property obtained it during the apartheid era, the state would have to pay a minimum of compensation. The compensation could therefore vary dramatically. One farm might be expropriated for R1000 while another might require a much higher amount to be paid.

In any event, to allow for no compensation to be paid, or to oust the jurisdiction of the court to have a final say on the expropriation would require an amendment of various parts of section 25 of the Constitution. Section 74 of the Constitution prescribes the procedures that must be followed to amend the Constitution – including the property clause contained in section 25.

To pass an amendment to section 25 of the Bill of Rights (which does not indirectly amend section 1 if the Constitution by abolishing the Rule of Law) would require a supporting vote of at least two thirds of the total number of members of the National Assembly (NA) (267 votes). Additionally, it would require the support of 6 of the 9 provincial delegations of the National Council of Provinces (NCOP) to pass such an amendment.

But in the unlikely event that an amendment of section 25 indirectly amends section 1 of the Constitution (for example, by watering down the Rule of Law), this would require a supporting vote of at least 75% of members of the NA (300 votes).

Examples of such an indirect amendment of the Rule of Law guaranteed in section 1 of the Constitution would be: an attempt to oust the jurisdiction of the court to test the rationality of the expropriation of a specific property (for example to test that property was not expropriated with an ulterior purpose, say, to benefit the Guptas or a friend or family member of the President); an attempt to allow expropriation without following any legally imposed guidelines and criteria; or an attempt to allow for expropriation by self-help, without following any legal process.

This means that the specific content of any amendments will determine whether the NA would have to pass the amendment with a two thirds majority or with a 75% majority.

The Constitution also imposes other procedural requirements that must be followed by the legislature when amending the Constitution.

A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments. This means a constitutional amendment cannot be attached to the budget, say, or to a Bill dealing with education.

The Constitution also requires extensive consultation before the legislature may consider the amendment of any part of the Constitution.

Section 74(5) therefore states that at least 30 days before a Bill amending the Constitution is introduced in Parliament, the relevant cabinet minister is required to publish details of the amendments in the Government Gazette to allow the public to make written submissions on the proposed amendments. The cabinet minister must also submit details of the amendment to the various provincial legislatures to solicit their comments.

When a Bill amending the Constitution is introduced, the cabinet minister introducing the Bill must then submit all the written comments received from the public and the provincial legislatures to the NA and the NCOP along with the draft Bill proposing the amendment of the Constitution. But this would not be the end of the consultation process.

We know from the Constitutional Court judgment in Doctors for Life International v Speaker of the National Assembly and Others that the NA and the NCOP in any event has a duty in terms of sections 59 and 72 of the Constitution to take reasonable steps to facilitate public involvement in the law-making process.

In cases of important or controversial legislation (which an amendment to the property clause would obviously be) this has been interpreted to mean, at the very least, that the public should be given the opportunity to make written submissions and should be invited to make oral submissions to the NA and/or the NCOP. These written and oral submissions would be able to comment, critique or offer improvements on the wording of the Bill.

The Constitutional Court stated in Doctors for Life that such participation was important because ours is not only a representative democracy but also a participatory democracy. As Ngcobo CJ explained:

The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist.

After the consultation process, first the NA and then the NCOP would have to pass the amendments with the requisite majorities as I noted above. But in terms of section 74(7) a Bill amending the Constitution may not be put to the vote in the NA within 30 days of its introduction or tabling in the NA.

If all the procedural requirements are met, the amendment would become part of the Constitution and cannot be challenged. This is an important point, as some commentators sometimes wrongly suggest that a duly passed constitutional amendment can be declared unconstitutional because it conflicts with other parts of the Constitution. They might have forgotten about what the Constitutional Court said in the 2002 judgment United Democratic Movement v President of the Republic of South Africa (the so-called floor crossing case). In that case the Court said:

Amendments to the Constitution passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.

Of course, if the amendments are not passed with the required majorities or if the requisite consultation did not happen, the amendments could be declared unconstitutional on purely procedural grounds. But it would not be possible to argue that the amendments themselves clash with other parts of the Constitution and are therefore unconstitutional. This is because ours is a democratic Constitution, allowing for changes to be made to it through the democratic process – as long as the prescribed super majorities are met.

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