Section 25 of South Africa’s Constitution makes it very clear that property is not limited to land and therefore any changes to this section can seriously threaten all property rights in South Africa as well as severely damage the economy, says adv Anton Alberts, chairperson of the FF Plus.
According to adv Alberts, the fact that the Institute of Race Relations (IRR) shares the FF Plus’s concern about possible amendments to the section should serve as a sure warning to the public to do everything they can to prevent the ANC from making changes to the Constitution.
In a written document just released by the IRR, is states that the Institute “has taken note of the widespread confusion around the proposal adopted by the African National Congress at its recent elective conference pledging expropriation without compensation to drive land reform”. It also states:
“At present, few details exist as to how this would be achieved, beyond comments made at the conference that it would entail amending Section 25 of the Constitution.”
“Because the ‘property clause’ is so often discussed in relation to land reform and the agricultural sector, it is often mistakenly assumed that a move on property rights will be limited to farming and agricultural landholdings.”
Adv Alberts says that the property under discussion is not only limited to agricultural land, as is clearly stipulated in the Constitution. He says that the implication is frightening as it would mean that the state would be able to expropriate any property without compensation. That includes everything from your car to your house in town or your farm.
At present, the Constitution does make provision for expropriation, but then it has to be in the public interest, for a road or a dam to be built, for example, and then the compensation must be just and equitable. Without this assurance, investors will not dare to invest in South Africa as the risk will simply be too great.
“It goes without saying that pension funds can also be expropriated in this way. It is widely known that the government would like to get its hands on the Government Employee Pension Fund (GEPF).
“To understand the full extent of expropriation without compensation, one must take note of the protection currently offered by the Constitution. Take special note of the last point, 25(4)(b). It summarises the entire issue in a single sentence,” says adv Alberts.
Here follows an excerpt from Section 25:
Property
(1) No one may be deprived of property except in terms of law of
general application, and no law may permit arbitrary deprivation
of property.
(2) Property may be expropriated only in terms of law of general
application—
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the
time and manner of payment of which have either been
agreed to by those affected or decided or approved by a
court.
(3) The amount of the compensation and the time and manner of
payment must be just and equitable, reflecting an equitable
balance between the public interest and the interests of those
affected, having regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the
acquisition and beneficial capital improvement of the
property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to
land reform, and to reforms to bring about equitable
access to all South Africa’s natural resources; and
(b) property is not limited to land.
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