To make explicit what is implicit

Amendment of section 25 of the Constitution: “To make explicit what is implicit”

To make explicit what is implicit, this is the limited mandate of the Ad Hoc Committee to Amend section 25 of the Constitution. But there seems to be no consensus on precisely what is implicit in section 25.

Where are we in the process now, and what is the way forward?

In February 2018, through a motion of parliament, the Constitutional Review Committee of parliament had to determine whether the Constitution needs to be amended to provide for expropriation without compensation. This committee, in November 2018, recommended that the Constitution must be amended "to make explicit what is implicit".

Directly after that, an Ad Hoc Committee was formed by a motion in Parliament, made up of members of parliament tasked to draft an amendment act along the aforementioned lines. This committee could not complete its work before the end of the fifth parliament, and that is why, in July 2019, a second motion of the National Assembly established a new Ad Hoc committee.

The mandate of this committee is "to make explicit what is implied in the Constitution, regarding expropriation of land without compensation, as a legitimate option for land reform ..." In this context, one could argue that making explicit what is implicit does not change the legal position, and as such is not an amendment but rather a clarification.

This committee’s focus is specific: it must initiate and propose legislation to amend the Constitution. The mandate is not to decide whether to nationalise the land, discuss the feasibility of the amendment, or assess the failures of land reform. The question in the committee is no longer whether or not the Constitution should be amended, but how.

To understand the work of the Ad Hoc committee, some background understanding of section 25 is helpful.

Section 25

Section 25 (2) gives the state the power to expropriate property for a public purpose (such as the construction of public roads) or in the public interest (such as land reform), and places an obligation on the state to pay compensation for the expropriated land. The State pays compensation because it is assumed that when property is expropriated for a public purpose or in the public interest, the burden of carrying that public project cannot rest solely on the landowner’s or occupiers’ shoulders. The costs are distributed to society by reimbursing the owner from taxpayers’ monies.

Section 25 (3) provides that the amount of compensation must be just and equitable, taking into account the greater public interest, and the interests of the persons affected. It lists factors that need to be considered in determining what is fair and equitable, of which the market value of the expropriated property is only one.

Two views

There are two views on how to interpret section 25 with regards to the calculation of compensation. These two views are listed in the final document of the Constitutional Review Committee, and therefore, inform the wording of the amendment.

The first view states that in certain limited cases, the weighing of the factors can result in a compensation amount of R0. It is already possible in the Constitution in certain circumstances. The state would have to show why R0 is just and equitable in the specific case. It is also subject to review by the courts. However, it does not negate the duty of the state to pay compensation. An owner can still argue that R0 is not just and fair. The other view simply states that the Constitution implies that land can be expropriated without compensation, but that it must be made explicit.

The problem is that these two views are not the same. So, before the committee can make explicit what is implicit, it must first be agreed on what exactly is implicit.

“Without compensation”

Why do I say so? The first view maintains the framework of section 25 and the Constitution as a whole, which requires a balance of factors and interests. It leaves the possibility that in some circumstances, R0 or nominal compensation is payable. Courts will always be able to test this restriction against the general limitation clause of the Constitution (section 36). It still respects the “just and equitable” standard of compensation that our Constitution requires, and is a constitutional interpretation of the provision.

The second view takes away the obligation to pay compensation. “Without compensation” changes the legal nature of expropriation to either deprivation or confiscation (depending on the facts), and it relieves the state of the duty to compensate. An owner, therefore, does not have the option to argue that compensation must be paid. This view goes against most international legal standards that require fair compensation in the event of expropriation and as such may be unconstitutional.

The committee's mandate is therefore very narrow. Arguments that state that the first interpretation is not a possible interpretation and that this is the reason why the constitution should be changed, might fall outside the committee's mandate because it does more than making explicit what is implicit. It changes the meaning. If the second interpretation is followed, there are possible constitutional problems in terms of International Law.

Two-thirds majority

Either way, this committee must now come up with wording within their mandate.

They aim to present a bill in December 2019 still to the National Assembly in terms of section 74 of the Constitution. The public will then have the opportunity to comment on the specific wording during January and February 2020.

The comments will be considered and incorporated, and the Bill will then be submitted to the Speaker by the end of March so that the National Assembly can vote on it.

A two-thirds majority is needed to adopt the Bill. For the ANC to do this, it needs the help of either the EFF or the DA. Whether these parties will agree in the end, will ultimately depend on the wording of the amendment bill and internal political decisions.

I still think that legislation should make explicit what is implicit in the Constitution. It must also establish the mechanisms to ensure that government implements the Constitution. Having a legal conversation about the change is therefore limited and frustrating at times.

But there is also the realisation that the amendment is a political battle, and in many ways is about an attempt to make section 25 legitimate again. The outcome of this process tells our story in the Constitution of a specific time in our history. And whether it will lead to a recalibration of a failed land reform program, and whether it will eventually lead to justice, only time will tell.

Author: Prof. Dr Elmien du Plessis, North-West University

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