Land Expropriation In South Africa law
The aforementioned concepts influenced the enactment of the Constitution of South Africa, 1993, and now operative constitution of South Africa 1996. The aforementioned constitution is the Grund Norm of the country governing all areas of law including property law. To this extent, the constitution of South Africa appreciates the noble concepts of eminent domain, but within the provided parameters and the restrictions thereunder. This paper asserts that the government is not in a position to deprive a person of their land arbitrarily, any attempt to do so would be unconstitutional unless the expropriation is justified and legally sanctioned. Historical Inviolability of Property Law Property law has been held inviolable historically. The power to exercise eminent domain is properly anchored under the letter and spirit of the constitutions of the states, save for North Carolina: a state that anchors its power of compulsory acquisition through an ordinary statute (Van der Walt, 2003).
As a fundamental requirement, the compensation due to the private owners should be paid at the time of the expropriation exercise; this is to say that the government is not permitted to defer the compensation to a later date (Cotula, 2009). Universally Held International Norms It is trite law under customary international law that land expropriation by a public authority can only be done with just compensation (Van der Walt, 2005). The long held international norm is that lands can be individually owned, collectively owned as a community or owned jointly with others also apply. This is why the international community condemned the situation in Zimbabwe concerning land reforms. b. Islamic Property Law under the Arab and Afro-Swahili Culture With the coming of the Islamic law and the Swahili culture, land division for purposes of private residences came to be.
Introduction of the Islamic law and the Swahili culture meat that communal land ownership had to be eroded a little bit to enable people erect private residences and live in the land with their families. Despite the fact that some people could take pieces of land for themselves, they did not have title deeds for the land or have the element of absolute proprietorship. The concept was the same as the current system to some extent, but inviolability of the property rights were not protected. Pursuant to the Act, a lot of Africans were dispossessed of their lands (Borras Jr, 2011). The lands were subsequently given to white people. When the apartheid government came to take over the administration, there were deliberate attempts by the government to maintain dominance of the whites minority above the Africans.
The government came up with policies aimed at oppressing Africans while giving an advantage to the whites. d. For instance, the rifle used by the assassin who killed President J. F Kennedy was held to be private property. The concept of private property does not limit itself to land or immovable property, it extend to anything to which a person is legally entitled perpetually, or temporarily in the form of lease or other means of ownership. Property must be taken by the government or an organ of the Government Condemnation proceedings in the nature of eminent domain only apply to private property. Private property can be subjected to the power of the government to take property formerly belonging to a private citizen (Place, 2009).
This is to say that the reason for appropriation must be to benefit the general public in some way. The courts are charged with the mandate to make a determination on whether a particular use was for the public or otherwise (Van der Walt, 2005). This is not to say that the legislature would not made a declaration of some particular public use (Walker, 2011). The court only gets a chance to make a declaration when the use of the property is disputed. In the present case, the use of the property. In the present case, the courts would be invited to make a determination on whether the taking of the property was consistent with the integral requirement that the initial owner be compensated adequately.
As should be noted herein, the US court in Monongahela Navigation Co. v. United States, 148 U. S. S. 26, 75 S. Ct. 98, 99 L. Ed. Contrary to the principle of willing seller and willing buyer, land as a natural resource would need to be distributed not only to the affluent but also to the small scale commercial uses who also need land to run their businesses and occupation (Van der Walt, 1999). The director general of DRDLR, in 2011, reaffirmed the fact that land policy was intended to be taking the form of equitable distribution for everyone to benefit in terms of food security, skills training, and creation of jobs. Due to the nature of the policy and the fact that the government intended to have a land policy that could ensure sustainable development besides making it possible for everyone to meet their needs, it became fundamental consider redistributing the huge chunks of agricultural land which were still owned by the whites to the black commercial traders.
The policy was intended to ensure that not only the whites who were still living in the place owned land but also the black farmers were also given an opportunity to own land (Borras Jr, 2011). There was an urgent need to take some of the lands and give them back to the black Africans in light of the equitable distribution policy of the government, a policy intended to ensure that everyone owned land (Van der Walt, 2005). 5 hectares. Part of African land was located within the geographical demarcations of the whites; something that came to be known as black spots (Borras Jr, 2011). There were recommendations to remove the black sports and ensure that the Africans were settling in the concentration zones meant for Africans.
With the influence of the Afrikaner nationalist Hertzog, the Native Trust Land Act was enacted (Ntsebeza & Hall, 2007). The stature made a provision to the effect that Native Land would be 6. The government used its power to force Africans out of their lands and flatten their residents while forcing them to live in the poor ghettos. The act also led to the creation of urban places for the whites in exclusion of the Africans (Borras Jr, 2011). In addition to the perils caused by the aforementioned laws, the Act made it possible for the white minority to take the lands belonging to Africans without compensation or indemnity (Van der Walt, 1999). This law created the serious land problem that the country has had be bear with in the recent times, especially due to the fact that it cemented the unfair expropriation laws of South Africa at the time (Cotula, 2009).
IV. The constitution required and permitted institutional reforms, but the ANC did the actual work. The ANC came up with a plan on how to settle the land problem country wide. In consultation with the World Bank, the plan was to settle 30 percent of land owned by the white settlers to the black holders (Lahiff, 2008). The total amount of land which was supposed to be considered in the plans was about 24. In this program, the settlement program was supposed to be done within a stipulated time frame (Van der Walt, 2005). Perhaps it is worth noting that the budget for the Department of Rural Development and Land Reform (DRDLR) was so little that it constituted only one third of that for Department of Human Settlements.
The rationale for the wide disparity according to the state was that there was urgency in settling the claims of restitution and resettlement in urban areas (Walker, 2011). b. V. Constitutional Provisions Addressing Property Rights The most authoritative provisions of the constitution addressing property rights are sections 25 and 36. The provision enabling the government to acquire land for purposes of advancing the interest of the public in the nature of land reform also makes it clear that property subject to the constitutional requirement is not limited to land (Cotula, 2009). While the conventional interpretation of the concept of property law usually refers to land, the constitution under the aforementioned provision makes it abundantly clear that property subject to the present discussion is not limited to land (Ntsebeza, 2007).
The implication of the same is that the constitution extends the contextual interpretation of the issue to immovable property, fixtures and fittings in land and other objects attached to land (Borras Jr, 2011). The constitution therefore implies that the present discussion concerning appropriation would apply to movable property as well, provided that they f all within the parameters of property contemplated under the provision under section 25 of the Constitution of South Africa. A. The power of the government to acquire property in public interest under the compulsory acquisition mechanism is controlled and limited. If the legislature attempts to give a blanket power to the government to acquire property for public purposes without restricting such power in accordance with the letter and spirit of the constitution, the legislature would be contravening the provisions of the constitution under section 25(1) and 36 (1) hence the legal provision or the statute would be null and void to the extent of such inconsistency.
The law would therefore be unsanctioned in the interest of constitutionalism and the rule of law. c. b. The government in its entirety is limited from taking such steps. In particular, the legislature is restricted from enacting legal provisions with the implication of restricting the executive from taking appropriate measures contemplated herein (Borras Jr, 2011). The apartheid government alienated a lot of land procedurally. The implication of the alienation is that most native South Africans were deprived of their land by the government under the same principle of eminent domain. The land was appropriated for purpose which would now be considered illegitimate, the rationale being that the apartheid government did not have high regard for the rights and fundamental freedoms of the natives under the discriminatory regime.
d. Amendment of the South African Constitution to allow for expropriation without compensation and implicit implications While an uncontrolled amendment of the constitution to allow an arbitrary expropriation without compensation would be against the letter and spirit of the constitution, a controlled compulsory land acquisition and land reforms may be considered as a general limitation for public interest. The new land reforms attempting to make it possible for land to the alienated by the government having regard to the need to balance land ownership and promote land reforms may be considered as permissible under the aforementioned sections 25 and 36 of the constitution (Lahiff, 2008). The constitution, pursuant to the provisions under section 25(2) (a), permits the government to limit the right to legal proprietorship for public purpose or public interest (Ntsebeza, 2007).
The wording of the constitution to the effect that fundamental rights can be limited for public purpose operates to the effect that a right and/or a fundamental freedom would pave way for public interest or purpose such as land reforms (Borras Jr, 2011). To begin with, the law must satisfy the requirements under section 36, besides, the law must be legally justifiable. In addition, the law must be reasonable and must limit the right to ownership of property to the extent necessary and no more, further the law must never derogate from the core or the essential contents of the fundamental rights and freedoms (Ntsebeza, 2007). The implication of this nature of legal framework is that a law seeking to limit the fundamental rights to proprietorship must conform to the fundamental tenets of constitutionalism and the rule of law together with the applicable principles incidental thereto.
In terms of reasonableness, the law must seek to limit the right to proprietorship only for legitimate purpose without stretching its effects beyond the extent necessary to achieve the legitimate purpose (Van der Walt, 2005). In the present discussion, the law of general application would be of fundamental use to limit the right to private property use for purpose of enabling government projects in the interest of the public. The constitution of South Africa properly anchors the right to own property, but the provision under section 25(7) prevents dispossession of the right to own property (Ntsebeza, 2007). While the constitution generally restricts arbitrary deprivation of property, the proviso under the foregoing discussion concerns property which was alienated under the past discriminatory practices (Van der Walt, 1999).
As a consequence, a person whose property was arbitrarily taken by eh government in a manner that does not meet the fundamental requirement of compulsory acquisition has recourse to proceed to court and have the same redressed. The apartheid government acquired some property without following the proper procedures of eminent domain; the people who owned such property were native South Africans (Ntsebeza, 2007). In light of the actions of the apartheid government, the constitution provides for remedies under subsection 7 herein, for purposes rectifying the mistakes of the apartheid government as far as eminent domain is concerned. In enacting a law of general application, the government is under the obligation of making sure that the law includes the requirement to compensate and the manner in which such compensation must be done (Ntsebeza, 2007).
Such law must include what would be considered adequate for purposes of compensation of a person whose land has been expropriated but the government in light of the interest of the public (Van der Walt, 2003). The law may establish a general mechanism for the appropriation process or define the parameters within which the applicable law would work to compensate the victims (Borras Jr, 2011). Some of the fundamental factors to be considered in the present case include the applicable scale of compensation with due regard to the market value and the underlying factors (Van der Walt, 1999). The value of land must be considered while factoring in what is considered as an appropriate compensation. The foregoing provision is structured in such a manner that an obligation is imposed on the government to take a positive step.
In this regard, it is apparent that the state bears the responsibility for ensuring the principle of equitable interest is preserved (Borras Jr, 2011). The means to preserve the principle seems to lie on the requirement that the state enacts a law of general application to that effect. In this regard, it is necessary that before the state engages in an act of compulsory acquisition for public interest in the nature of equitable distribution, the state must have put in place a codification fostering access to the resources of the nation equitably. As indicated in the constitution, measures which can be taken under the aforementioned provision include legislative measures besides other governmental actions which aid in the fulfillment of the requirement to distribute property in South Africa equally (Ntsebeza, 2007).
The implication is that anyone who lost his land during the apartheid tenure has an opportunity in court to have the issues resolved in court. The court has been granted the discretion of taking measures such as restitution of land due to past historical injustices of any other measure it deems appropriate in the circumstances (Cotula, 2009). In this regard, it the role of the court would not be limited to looking into the issue; the court can vary the title to the property, change it and have another title prepared for the right owner of the property, revoke the title to the property or make any changes as it considers appropriate in the circumstances (Van der Walt, 1999). Further, the court can take measures in the nature of financial compensation for purposes of ensuring that the past racial discrimination results is eliminated absolutely.
A. B. Human Rights There are several factors contributing to ascertain the legality of an action of the government to expropriate private land. The fundamental rights and freedoms of a proprietor ranks at the apex of the entrenched constitutional provisions under the Constitution of South Africa 1996, subject only to the general limitation of rights and fundamental freedoms and the underlying parameters (Van der Walt, 2001). The national government is not in position to disregard the property rights of the private owner of land, but the government can pursue expropriation for a justifiable cause as contemplated under the underlying limitation of fundamental rights and freedoms. C. The history of land dispossession in both countries is the cradle for the problem associated with land reforms in the regions.
Land reforms in the countries are shaped by the fact that the colonial governments in both countries shaped the mane in which the land discussion is supposed to be considered (Cotula, 2013). The colonial government decided to compulsorily drive Africans from their land in both South Africa and Zimbabwe enacted legal provisions to that effect. The implication of the laws was that the whites were given the mandate to occupy the vast arable land while the blacks were moved to the impoverished reserves (Peters,, 2004). The implication of the laws of the colonial government in alienating land for the white settlers to the disadvantage of the blacks led to the successive land policies that some scholars consider oppressive, after the end of colonialism (Bundy, 2001).
Both countries adopted the “willing seller, willing buyer approach” (Cotula, 2013). The willing seller, willing buyer approach to land ownership became one of the ways in which the newly incorporated governments administered and handle the land question. This meant that there was no state compulsion on the issue of land ownership hence someone has to be willing to sell his land for another one to purchase it (Hall, 2011). The implication of the same is that land tenure and ownership became an issue that state could not control much despite the racial inequality that had existed and continued to exist in the countries. Due to the slow pace of land reforms in Zimbabwe, the black majority invaded the white setters agricultural land and began to occupy them forcefully.
The constitution of South Africa is elaborate enough in providing for the right to own land and the right to have private property protected from encroachment and arbitrary expropriation laws of the state. This notwithstanding, the constitution also provides for limitation of the right to private ownership through a law of general application. The law must comply with the discussed parameters and the letter of Article 36 of the constitution of South Africa. In the present case, the expropriation laws seem to be in contravention of the constitution, but the public interest and land reforms needs seems to justify most of the government moves. References Books Bundy, C. Van der Walt, A. J. Constitutional property law. Juta and Company Ltd. Journals Van der Walt, C.
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