Part I - The Rights and Wrongs of South African Property Law

1 Politics or Principle? Making Sense of the Expropriation Without Compensation Debate

Zsa-Zsa Temmers Boggenpoel

Introduction

It has been argued that the idea behind nil compensation for expropriation is essentially political (Dugard, 2019: 137). The political dimension is driven, in part, by a particular narrative that is fundamentally based on the assumption that providing no compensation for expropriation will pave the way for large-scale, rapid and much-needed land reform in South Africa.¹ It is certainly no secret that in the context of land redistribution, as a sub-programme of land reform in South Africa, expropriation has not been used effectively as a tool to ensure more equitable (re)distribution of land. A number of reasons can potentially be advanced for this state of affairs – some of which are not necessarily linked to the compensation question (Hall, 2014: 659). For instance, the policies and laws to ensure land redistribution are not always clear enough to sufficiently ensure the reallocation of property rights in South Africa (Walker, 2009: 472; Kirsten & Sihlobo, 2021; Kotzé & Pienaar, 2021: 295–98; see further DRDLR, 2017). Questions connected to the issues mentioned above relate to the beneficiaries of land redistribution and the type of rights that should be established in terms of the land redistribution programme. In some respects, there is also a lack of political will to ensure that expropriation is a serious option to effect land redistribution (Dugard, 2019: 158). Not all of these alleged reasons for the slow pace of land redistribution are necessarily linked to compensation. However, there are also claims that compensation potentially stands in the way of expropriation for land redistribution purposes. The argument in favour of nil compensation speaks directly to these claims. In this regard, I would like to argue that we should not underestimate a principled approach to nil compensation and the potential it has to unlock the hand of the state to ensure that land reform is speeded up. A more principled approach in either legislation or policy may also be required to provide the necessary guidance to courts on when nil compensation is a serious option – if at all.

Lest I be misunderstood, let me say at the outset that I have, on a number of occasions in the last couple of years, joined in on the argument that it is not legally necessary to amend section 25 to achieve land reform in South Africa because of the numerous possibilities that are locked up within a progressive interpretation of section 25, and on the assumption that the tools and mechanisms that are currently in place, or could potentially be developed, are actually used. So, section 25 itself is not necessarily the problem. In Rakgase (para. 5.4.1),² the court remarked that ‘[s]ince the birth of democracy in our country in 1994, land reform, despite it being a Constitutional imperative, has been slow and frustratingly so’. Consequently, Pienaar warns that ‘if we are to avert systemic failure in the context of land reform, a concerted effort needs to be made to ensure that the programme is “pursued conscientiously and meticulously”’ (Pienaar, 2020: 546).

For land reform to work effectively, we need a legal framework that allows for it, but we also need a capable and proactive state and, very importantly, we need courts that are willing to assume the responsibility of interpreting section 25(3) in such a manner that compensation is not a factor that stands in the way of land reform. However, we are now at a point where various concrete suggestions are, or have been, on the table in terms of expropriation laws in South Africa. For instance, we have the suggestions that were made in the Constitution Eighteenth Amendment Bill 18-2021 (as tabled in August 2021), which sought to provide the authority for nil compensation to be paid in instances where property is expropriated to ensure land reform, although this Bill was rejected by the National Assembly on 7 December 2021. We also have the Draft Expropriation Bill B23-2020, which is still on the table. Given these examples and the problems we see in determining compensation for expropriation (especially by courts), I would like to posit that this is an opportune time to reflect on whether our legal framework should make room for nil compensation in some form and where and how such accommodation should be made.

This chapter aims to focus on the politics behind nil compensation against the background of some recent judicial developments, which arguably show a conservative trend in awarding compensation that deviates substantially from market value. More specifically, I am interested in the following questions: Why is the narrative in favour of nil compensation so dominant if it is argued that it is already legally possible to expropriate for very little compensation? Stated differently, is there a need for greater clarity about the specific instances where nil compensation is a viable option? I think these are important questions as we move forward with the debate around compensation for expropriation. I hope to provide some thoughts on nil compensation for expropriation in light of the Msiza judgments in the Land Claims Court (LCC) and the Supreme Court of Appeal (SCA) (for a critical discussion of the judgment, see Du Plessis, 2019), and I will ask: Do we need to rethink the space that nil compensation occupies in our legal framework?

Are the Calls for Nil Compensation Legally Justified?

Introduction

When considering whether our legal framework should make room for nil compensation, it is valuable to consider the extent to which nil compensation is possible (or not) under the current framing of section 25. It is difficult to conceive of situations where nominal or very little compensation would realistically be possible. The problem is we do not see many examples in the cases that have been presented to courts. In fact, barring some outliers like Du Toit that are clearly not reasoned or argued very well,³ what we do see are courts really struggling to provide compensation below market value and, in fact, moving towards market value, as I will show in the discussion of Msiza LCC.⁴ Moreover, what we also see is the state either not expropriating for land reform purposes or offering exorbitant compensation – even above market value. This makes one wonder whether the call for nil compensation to be provided for explicitly in legislation or in the Constitution of the Republic of South Africa, 1996 (Constitution) is not more legally necessary than we initially anticipated.

Let me illustrate by way of Msiza LCC. The facts of the judgment can briefly be described as follows: Mr Msiza was a labour tenant on a farm situated in the district of Middelburg, Mpumalanga Province (Rondebosch). In 2004, Mr Msiza was awarded a part of the farm under section 16 of the Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act). In the earlier judgment on the merits of the case, Moloto J found that Mr Msiza was a ‘labour tenant’ for the purposes of the Act and was therefore entitled to a specific portion of the land. The landowners sought compensation from the state for the part of the property expropriated in favour of Mr Msiza, but the parties were unable to agree on an appropriate amount of compensation. Consequently, the LCC had to decide the appropriate amount according to section 16(1)(a) and (b) of the Labour Tenants Act (Msiza LCC, para. 3). The owners wanted market value according to the development potential of the land, which increased from R1,800,000 (if viewed in terms of agricultural use) to R4,300,000 (if the property was valued according to the township that could be developed on the land).

Section 23 of the Labour Tenants Act authorises the court to determine compensation and states that an owner ‘shall be entitled to just and equitable compensation as prescribed by the Constitution’. Therefore, the Labour Tenants Act ensures that compensation is just and equitable as section 25 of the Constitution prescribes. When compensation is determined for purposes of section 23 of the Labour Tenants Act, section 25 should therefore be central to calculating such compensation.

The LCC began by setting out the legal position for assessing and determining just and equitable compensation in terms of the Constitution. The court acknowledged that ‘[t]he award of land to the applicant by this court in its 2004 judgment is an act of expropriation’ (para. 3) and questioned whether the requirements for expropriation were complied with. It disposed relatively quickly of the requirement of the law of general application (para. 11) and proceeded to discuss the public interest/public purpose requirement (paras. 12–15). Having accepted that both these requirements were complied with, the court questioned whether the requirement of just and equitable compensation was met. As was mentioned earlier, the 2004 decision entitled the owner to compensation, but the amount of the compensation was disputed in the LCC (para. 16). The landowners insisted that just and equitable compensation in the particular case was compensation at market value (para. 29). In this regard, the court held that:

I must dispense with this argument at this early stage. Market value is not the basis for the determination of compensation under s 25 of the Constitution where property or land has been acquired by the state in a compulsory fashion. The departure point for the determination of compensation is justice and equity. Market value is simply one of the considerations to be borne in mind when a court assesses just and equitable compensation. It is not correct to submit, as was done on behalf of the landowners, that the jurisprudence of this court installed market value as the pre-eminent consideration.

(para. 29)

Interestingly, the court emphasised further that market value would be used as an entry level for determining compensation because it is the most tangible in the list of factors in section 25(3) (para. 30). Therefore, market value should be used as a starting point in determining just and equitable compensation. A two-step approach would need to be followed. First, market value would have to be determined, after which the court would have to assess whether other factors justified adjusting the market value upwards or downwards. In this regard, the court was at pains to emphasise that the two-step approach did not mean that market value was the standard for determining compensation. Compensation must always be determined according to the standard of justice and equity (para. 30). This is especially true in light of the pre-constitutional position, where market value was the central (most important) consideration in terms of section 12 of the Expropriation Act 63 of 1975. The Constitution drew a line through the primacy of market value by allowing for a number of factors to determine just and equitable compensation. Very importantly, no hierarchy exists in relation to the factors, and a balance must be struck between the landowner and the public interest (para. 32).

In Msiza LCC, several factors justified a downward adjustment of market value because market value would not (according to the court) reflect just and equitable compensation in terms of section 25 of the Constitution. However, the court emphasised the point made earlier in Du Toit that market value is not the single most important element when it comes to determining compensation for purposes of section 25(3). The LCC awarded compensation at R1,500,000, which was R300,000 less than the market value (assessed according to the value of agricultural land at R1,800,000, which the government was willing to pay for the land awarded to Mr Msiza) (para. 82). Although it is not entirely clear how the factors translated into the exact amount of R300,000, the court purportedly arrived at the reduced amount after considering the factors listed in section 25(3) (paras. 48–76).

In the end, the court provided its reasons for awarding compensation below market value. These included: the difference between the amount paid for the whole property and the market value claimed for the portion of land awarded to Mr Msiza; the fact that the landowners had made no investments in the land; the current use of the property had not changed in fifteen years; the landowners purchased the property with full knowledge of the claim made by Mr Msiza; the claim for the portion of the land succeeded in 2004, after which the landowners were precluded from using that portion of the land; the purpose of the expropriation was land reform, and the landowners should not be able to claim extravagant amounts from the state in this regard; the Msiza family had resided and worked on the land and in line with the objects of the Labour Tenants Act the award of the land serves to compensate labour tenants who worked on the land in exchange for the right to reside there (para. 80).

The SCA’s decision in Msiza SCA is an appeal against the LCC judgment as outlined earlier.⁵ The main thrust of the appellants’ appeal was that the LCC had miscalculated the amount of compensation in line with the use of the property as agricultural land instead of its potential future use for development. Moreover, they argued that the amount of compensation had been incorrectly reduced simply because Mr Msiza was a labour tenant (Msiza SCA, para. 1). More specifically, the appellants asserted that the reduction of the amount of compensation for land reform purposes was arbitrary. As this chapter focuses mainly on identifying whether a more principled approach to nil compensation, specifically in legislation, is favourable, the first argument is not of specific interest here. Therefore, the focus will not be on how the court determined whether market value should be assessed in terms of agricultural or residential property, but rather on how courts are navigating the issue of determining compensation at below market value.

The SCA began its analysis by considering the extent of the land and the labour tenancy agreement to contextualise the determination of compensation for the land that was expropriated. Regarding the amount of land expropriated, the court highlighted that the entire property consisted of 352 hectares, of which just under 46 hectares had been awarded to Mr Msiza (para. 2). The labour tenancy agreement in favour of Mr Msiza (and his family) had been concluded in terms of the Native Service Contract Act 24 of 1932, and it was clear that the family had exercised the right since at least 1936.

The court set out the wording of section 23(1) of the Labour Tenants Act to essentially emphasise the link between determining compensation under the Act and ‘just and equitable’ compensation in line with the Constitution (Msiza SCA, paras. 7–8). It identified what should be taken into account in determining ‘just and equitable’ compensation for the purposes of sections 25(2) and 25(3) of the Constitution. Having regard of these constitutional provisions, the SCA considered the judgment in Du Toit, where the Constitutional Court reiterated the general principles relating to the requirement of just and equitable compensation. As a starting point, the Constitution provides the appropriate standard even in cases where legislation – such as the Labour Tenants Act (as in Msiza SCA, paras. 11–12) or the Expropriation Act (as in Du Toit, para. 26) – applies. Therefore, the first step is to consider the list of factors in section 25(3), even if there is direct legislation that regulates the specific type of expropriation in the case, which includes compensation provisions of its own.

Having regard to all the factors listed in section 25(3), the court conceded that market value is usually the one objectively quantifiable factor (Msiza SCA, para. 12; Moloto Community, para. 59).⁶ This reasoning endorses that of the LCC in Msiza LCC and the two-stage approach followed in Du Toit. The court in Du Toit stressed that this approach might not work in all instances, but in most cases it appears to be the most practical. According to the court in Du Toit, this approach can only truly reflect just and equitable compensation if all the factors (where applicable) are accorded equal weight and due consideration (Du Toit, para. 84).

In Msiza, the dispute centred on whether the compensation should be assessed according to the actual use of the property (which was agricultural and valued at R1,800,000) or the development potential of the land (as residential property estimated at R4,000,000). An expert on behalf of the state estimated the current value of the property at R1,800,000 (Msiza SCA, para. 15). Interestingly, according to the ‘Pointe Gourde’ principle, Mr Msiza’s claim for compensation should not be taken into account in determining the market value of the property (Msiza SCA, para. 16). This principle (see Msiza SCA, paras. 18–19 for its origins) applies in the context of determining the amount of compensation for expropriation and is contained in section 12(5)(f) of the Expropriation Act 63 of 1975, which provides that

any enhancement or depreciation, before or after the date of notice, in the value of the property in question which may be due to the purpose for which or in connection with which the property is being expropriated or is to be used, or which is a consequence of any work or act which the state may carry out or perform or already has carried out or performed or intends to carry out or perform in connection with such purpose, shall not be taken into account.

In this respect, the court considered whether ‘a known impediment to the property’s development potential when the property was purchased which ha[s] a direct bearing on the price that a willing buyer in the Trust’s position would have been prepared to pay for the property’ (Msiza SCA, para. 19) should be considered when determining compensation. However, the court relied on the earlier decision in Port Edward v Kay⁷ to conclude that the Pointe Gourde principle does not apply in this case and that the accepted market value of the property should be R1,800,000 (Msiza SCA, para. 20). The ‘Pointe Gourde principle, therefore, does not apply to the present case as the Trust bought the land knowing of the Msiza claim and the presence of the Msiza family on the land’ (Msiza SCA, para. 21; see also Moloto, para. 86). Nonetheless, the question remained whether there were any cogent reasons to reduce the compensation to below market value in this particular case.

The SCA considered the approach adopted in Msiza LCC and the reasons for the LCC deducting R300,000 from the market value of R1,800,000. The court found the reasons for reducing compensation as advanced by the LCC unconvincing (Msiza SCA, para. 20). It held that most of the factors listed by the LCC had, in any event, been accounted for in the determination of the market value of the property (para. 25). There was also no indication that the amount claimed as compensation by the appellants was extravagant or that the state could not pay it. Moreover, the court commented that the R300,000 had been arbitrarily arrived at as there was no indication of its basis, especially since all the factors that the LCC indicated for the deduction were already taken into account in considering market value (para. 25). In the end, the SCA held that R1,800,000 – in other words, market value based on agricultural use of the land without the deduction as indicated by the LCC – constituted just and equitable compensation (para. 28).

Reflection

If one reflects for a moment on the difference between the Land Claims Court’s determination of compensation – where we see some engagement with a reduction of compensation to below market value – and the SCA’s difficulty in accepting this reduction, one is forced to consider the question of when (if at all) an amount below market value (never mind nil compensation) would be a serious option, if not provided for on a more principled basis in legislation.

Even though the court followed the two-step approach in the LCC judgment in Msiza, the principle that compensation for expropriation must be just and equitable – as opposed to market value – seems, at least in theory, to have been seriously considered. The way in which the factors in section 25(3) were considered and applied could therefore be applauded. However, given that the LCC is still focused very heavily on market value in its determination of compensation, it forces one to acknowledge that it will be very difficult to deviate from this standard (Du Plessis, 2015b).

Jeannie van Wyk argues that the two-step approach that focuses on market value and determines the extent to which the amount must be adjusted, as developed in the majority of cases dealing with compensation for expropriation, is not ideal (Van Wyk, 2017: 27). The problem remains the risk of making market value the central consideration, as was the case in the pre-constitutional calculation of compensation for expropriation. That is arguably exactly what happened in the Msiza judgment. Elmien du Plessis, therefore, asserts that in the end, the owner in Msiza received market value compensation as ‘just and equitable’ compensation (Du Plessis, 2019: 217). Therefore, according to Du Plessis, the judgment ‘is a showcase of failed reform with regards [sic] to labour tenants and the state’s inability to transfer the land to the lawful beneficiary due to disagreement about the compensation amount’ (Du Plessis, 2019: 217).

The Msiza judgment shows the difficulty courts have in determining just and equitable compensation for expropriation. The obligation is placed on courts to determine just and equitable compensation in each individual case. The task is exacerbated by the fact that the compensation provisions in the expropriation legislation (the Expropriation Act 63 of 1975) and the compensation provisions in the Constitution are (still) not aligned (Iyer, 2012: 74; Van Wyk, 2017: 25). The calculation of compensation in terms of the 1975 Expropriation Act is of course essentially focused on market value (see section 12 of the Expropriation Act; Van der Walt, 2011: 513). Land reform expropriations add a further dimension to the complicated task of calculating compensation for expropriation (see Du Plessis, 2015a: 369–87; Van Wyk, 2017: 35). To what extent does land reform (alone) justify a (significant) reduction in market value?

The decision in Msiza LCC directly raises the question of determining compensation for a land reform expropriation in terms of section 25(3) of the Constitution. More specifically, the decisions of the LCC and the SCA engage (to some extent) with the question of when we can expect the amount of compensation to be less than market value in terms of section 25. But where does the decision leave South African law in terms of the appropriate determination of compensation for expropriation, specifically expropriations undertaken for land reform purposes, and even a further stretch in terms of opening up debate about the possibility of ever having nil compensation as a serious option in the absence of dedicated legislation aimed at achieving that goal?

Evaluation of the Msiza Judgment: Some Implications for the Determination of Compensation for Expropriation

The calculation of compensation for expropriation as adopted in Msiza LCC seemed sensible and, as stated earlier, could even be commended. The way in which the court engaged with all the relevant factors in section 25(3) is particularly encouraging considering the criticisms often levelled against courts for focusing too much on market value (see specifically Mokgoro J’s comments in Du Toit, para. 36). In this regard, the case is a reminder that the Constitution has allowed for the determination of compensation for expropriation on the basis of just and equitable compensation instead of compensation based on market value. According to Du Plessis, this standard of justice and equity should have a direct bearing on the transformative impact of the expropriation clause in terms of land reform (Du Plessis, 2009: 267).

Du Plessis maintains that courts must be aware of what they are protecting in the process of awarding compensation. Compensation may therefore be a way of ensuring redistributive justice. This will create the possibility of moving away from what Du Plessis calls ‘market value centred’ and ‘scientific’ ways of determining compensation, based on a particular legal culture, towards the calculation of compensation for expropriation that is based on a transformative, constitutional legal culture within expropriation law. She introduces the idea of a ‘transformative interpretation of the compensation requirement in the post-apartheid context’ (Du Plessis, 2009: 271) and concludes that there are various considerations that the just and equitable requirement in relation to compensation requires in the new constitutional dispensation (Du Plessis, 2009: 299–300).

The just and equitable requirement may necessitate an inquiry that a narrow market-driven determination of compensation would disregard. Furthermore, determining the amount of compensation requires a contextualised judgement, which should be sensitive to the facts in the particular case and determining compensation cannot be an abstract analysis (Van der Walt, 2011: 509). This should include consideration of the factors listed in section 25, but courts are not limited to considering only those factors. Courts should, however, give special attention to land reform aspirations (Van der Walt, 2011: 509).

The SCA decision in Msiza highlights that courts essentially still follow a predominantly ‘market value centred’ approach when determining compensation for expropriation and find it difficult to deviate from that standard. Stated differently, when considering the factors (other than market value) in section 25, courts struggle to find adequate justification for reducing the value and almost instinctively revert to market value. This conclusion is especially interesting considering the debates around nil compensation. If the practice is to award market value, even in land reform expropriations, it becomes difficult to accept the theoretical arguments asserting that compensation below market value – never mind nil compensation – is possible within the current constitutional or legislative framework.

A pertinent question arising from the SCA Msiza judgment is: Is there a missing link between the rhetoric that expropriation below market value is possible and the actual practice playing itself out in courts? More specifically, the SCA decision calls into question the theoretical argument that compensation below market value is ever possible. Msiza LCC certainly purports to be a different approach to the one which singles out market value as the determining factor, especially since the LCC ordered compensation at below market value. The fact that the SCA overturned this decision raises serious doubts regarding the contention that compensation below market value is a serious possibility. The centrality of market value is nothing new and has, of course, been the focus of the courts for decades, before and after the property clause came into effect. Several judgments, even in the constitutional dispensation, have highlighted market value as the starting point in the calculation of compensation for expropriation, making it very difficult to deviate substantially from this standard. In Ash v Department of Land Affairs⁸ (paras. 34–35), the LCC formulated a two-step approach when calculating compensation. The court indicated that it would determine the market value of the property and thereafter subtract from or add to the amount of the market value, as other relevant circumstances may require (paras. 34–35). A similar approach was, of course, adopted in Du Toit (para. 37) – as highlighted earlier. This approach is arguably understandable since the general tendency of courts has been to compensate those expropriated by placing them in the same position they were in but for the expropriation (Du Plessis, 2015b: 1728). This is in line with section 12(1) of the Expropriation Act, which indicates that compensation is determined according to what the property could have been realised in an open market if sold by a willing seller and purchased by a willing buyer. There are several judgments that highlight this point.⁹ Recently, the LCC in Moloto had to decide whether the formula of adding the market value to the current use value and dividing the consolidated value by two would constitute just and equitable compensation for purposes of section 25. The court mentioned that this formula is, in fact, similar to the two-stage approach ordinarily adopted by the courts (paras. 20, 63). Although this is a somewhat different approach, market value still plays a key role in that it is used as the starting point from which compensation for expropriation is determined. In the end, the court in Moloto concluded that ‘[i]n the absence of any other information and satisfactory evidence upon which just and equitable compensation can be assessed, this court is constrained to conclude that market value is, in the circumstances of this case, just and equitable compensation as the landowners contend’ (Moloto, para. 96).

Although recent judgments including Msiza and Moloto tried to indicate that market value should not be the primary focus when it comes to compensation for expropriation, the judgments fail to provide clarity on the question of whether expropriation below market value can be justified in the land reform context, and if so, how such an adjustment from market value should be made within the current legal framework. The cases prove that it is difficult to justify why a reduction in market value is possible, even though it is often argued that the law allows for such a possibility in theory. Ernst Marais made the same argument, submitting that Msiza SCA appears to suggest that a downward adjustment of compensation at market value, purely on the basis of land reform, is impermissible (Marias, 2018).

The difference between the approach to the reduction of compensation in the LCC and the SCA in Msiza indirectly invites a conversation about whether land reform alone is sufficient justification for a significant reduction of market value (even a nominal amount of compensation). Interestingly, in this respect, in Du Toit, a so-called non-land reform case, the Constitutional Court was willing to recognise a significant reduction in the market value of the gravel because it held that the public interest in the building of roads was important for the economy and the improvement of the road system in general (Du Toit, para. 51). This case is clearly an outlier, and the interpretation of the purpose of the expropriation in relation to the determining compensation has been criticised. Van der Walt, for instance, argues that the interpretation of this factor in the calculation of compensation in Du Toit is unconvincing from a practical and economic perspective (Van der Walt, 2011: 514). He goes even further to argue that expropriation for land reform purposes without compensation will, in most instances, be unconstitutional. This is because all the factors have to be considered, and ‘land reform should therefore not on its own imply that compensation is not required’ (Van der Walt, 2011: 518). These arguments made by leading scholars on expropriation law and compensation for expropriation have huge implications for the assertion that expropriation at nil compensation is already possible under the current legal framework. In fact, it negates entirely any possibility that awarding nil compensation for expropriation is possible within the current framing of section 25 or the current Expropriation Act. This is not because it is theoretically impossible, but perhaps because it is difficult to conceive of examples where this would be possible.

As indicated earlier, the question remains: Can the purpose of the expropriation (alone) justify a (significant) reduction in compensation? Du Plessis asserts that courts dealing with this factor in the determination of compensation tend to confuse the requirement of public purpose/public interest and public purpose as a factor in calculating compensation for expropriation (Du Plessis, 2015a: 369–87). She uses the examples of Du Toit and Mhlanganisweni Community to argue that the interpretation of public purpose when determining compensation for expropriation is misconstrued in both cases. In Du Toit, the court’s reasoning is problematic because it would mean that in all cases where the expropriatee has property necessary for the upkeep of national resources (or assets), he can expect compensation that is below market value (even significantly so). The decision in Mhlanganisweni Community is disconcerting because it would mean that where property is expropriated for land reform purposes, it should be treated the same as non-land reform expropriations, with the potential that the state may have to pay full market value for those properties in all instances. She considers both interpretations unfair and confusing – Du Toit because one individual is unduly burdened with the task of paying for the upholding and maintenance of a national asset that should be borne by the general tax-paying public, and Mhlanganisweni Community because ‘in view of the history of the privileged land ownership in South Africa and the constitutional imperative to transform, one should acknowledge that market value cannot be treated as a strict requirement’ (Du Plessis, 2015a: 379).

An alternative approach to the role of public purpose as a factor in determining compensation may be to distinguish ‘run-of-the-mill’ or ‘business-as-usual’ expropriations and land reform expropriations (Du Plessis, 2015a: 380). In non-land reform expropriations, the payment of market value may reflect just and equitable compensation as market value may strike the most appropriate balance between the interests of the public and the landowner affected by the expropriation. This is if there are no other factors that nonetheless justify a downward adjustment of market value in these instances. In land reform expropriations, where there may be other considerations at play, and the protection of existing property rights must be assessed in light of the promotion of social justice and transformation, a different interpretation of public purpose may be required when calculating just and equitable compensation. Reconciling the opposing claims in a just and equitable manner may require a more contextual, balancing approach that is sensitive to the task of promoting the spirit, purpose and object of the Bill of Rights (Du Plessis, 2015a: 387). A downward adjustment may be more appropriate in the latter case than the former – as is, in fact, illustrated by the LCC in Msiza. This may be one approach to determining when compensation below market value would be justified. Another (or perhaps supplementary) approach would be to provide guidance in legislation on more specific instances where compensation below market value is plausible. Either way, what is clear is that courts need some more direction in this regard; otherwise, we may continue to see a natural inclination towards market value compensation.

The Suggested Way Forward: A New Expropriation Bill?

Du Plessis points out that it is time for the legislature to deal with compensation for expropriation in a pertinent manner. She notes that ‘[t]he legislature can do this by making sure it provides clear guidelines on the calculation of just and equitable compensation, rather than a mere “copy and paste” of Section 25(3)’ (Du Plessis, 2015a: 387; and see Du Plessis, 2014). I would agree with Du Plessis and take it a step further. A new Expropriation Bill could potentially provide greater clarity regarding compensation for expropriation in the land reform context. It could do so by providing more indication of how the different factors relate to one another, especially if the Bill is to provide further guidance to courts regarding the relative importance of the factors listed in section 25(3) when it comes to calculating the amount of compensation in land reform expropriations. I think the Bill could even do more than that. It could guide the courts in establishing when nil compensation should be a viable option.

There are relatively few instances in which I envisage that nil compensation can be awarded, especially given the tendency of courts to compensate individuals for their loss experienced as a result of the expropriation, as highlighted in the chapter thus far. However, we do see some examples. Clause 12 of the latest Expropriation Bill aims at replacing section 12 of the 1975 Expropriation Act. The Bill is not perfect, but it does lay down the principles that must be adhered to when determining compensation, and in this respect it is certainly more aligned with the Constitution than the existing legislation. The Bill makes it clear that the compensation standard is just and equitable and not market value, thereby bringing it in line with the Constitution to a much greater extent than the current Expropriation Act does. Of particular interest for the purposes of this chapter are the examples listed in clause 12(3), which indicate the instances where nil compensation is plausible. It is important to note that there is still some discretion in terms of the Bill to determine when it may be just and equitable for nil compensation to be paid. Therefore, clause 12(3) is peremptory but not exhaustive. This provision leaves the discretion to the expropriating authority to determine whether the compensation will be nil. Since the expropriating authority is left with a discretion, I would argue that it may be even more helpful to have guidelines on how such a discretion must be exercised.

Clause 12(3) of the Expropriation Bill is relevant when thinking about instances where nil compensation may be applicable and reads as follows:

1. (3) It may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited to –

   1. (a) where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from appreciation of its market value;

   2. (b) where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;

   3. (c) notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), where an owner has abandoned the land by failing to exercise control over it;

   4. (d) where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and

   5. (e) when the nature or condition of the property poses a health, safety or physical risk to persons or other property.

These instances are not without criticism but may be the starting point when considering possibilities where nil compensation is envisaged.¹⁰ Clause 12(4) is particularly interesting if one considers some of the issues I mentioned in relation to the Msiza judgment. Clause 12(4) states that when a court or arbitrator determines the amount of compensation in section 23 of the Labour Tenants Act, it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances. A number of questions arise: First, this section brings claims of labour tenants under the purview or possibility of nil compensation. However, given the difficulty portrayed by courts in even reducing market value, never mind ordering nominal or nil compensation, it is not clear exactly how this provision is going to take us further in terms of assisting courts to deviate from market value. Second, questions may arise about whether a principled or default approach in favour of nil compensation in the context of labour tenants is even the best example or category. In this regard, it is not evident why this group of claimants (namely labour tenants) are included when other groups of claimants, such as restitution claimants, are specifically not included.

These questions, together with those one can equally raise about some of the other categories listed in clause 12(3), are not irrelevant, but they arise only when we are willing to acknowledge that it is necessary to have the conversation about nil compensation in the first place. The point that I would therefore like to make is this: If we are willing to open up a conversation about instances where nil compensation is a possible or valid option, we need to potentially think about the following:

1. (i) Why do we need to recognise a principled approach to nil compensation?

2. (ii) How will we demarcate instances or provide categories suited for nil compensation on a more principled basis?

3. (iii) Should we leave an open-ended discretion, or formulate guidelines that are more specific, like all the instances that are currently listed in clause 12(3)(a)–(e) of the suggested Bill?

This chapter has highlighted at least one reason why it may be important for us to have a conversation about instances where nil compensation should be a more principled possibility. First, expropriation assumes compensation. Arguably, whenever you are in the realm of expropriation, there is an assumption of the obligation to pay (an amount of) compensation. The obligation to pay compensation, which ordinarily goes hand in hand with expropriation, is also why there were conceptual difficulties with introducing notions like custodianship (as distinguished from trusteeship or nationalisation) within the realm of expropriation law in 2021. While there is authority to concede that, on the one hand, compensation is not a prerequisite for expropriation in the technical sense of what comes first, and in a legal sense of recognising that expropriation has occurred even though compensation has not been determined or paid, we cannot get away from the fact that compensation is an integral part of expropriation. In the absence of any obligation to pay compensation, one would arguably not be talking about an expropriation but another form of limitation/interference with property rights. We see, for instance, in the Final Report of the Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) that ‘[t]he words “subject to compensation” and the presence of the word “amount” denote that compensation is indivisible from expropriation’ (PAPLRA, 2019: 71). Compensation can therefore be a stumbling block to the full enjoyment of the benefits of expropriation, especially in the land reform context. We see this unfold in the Msiza judgment.

The Final Report of the Advisory Panel went on to mention that section 25 is a compensation-based clause and that it is ‘highly unlikely and improbable that there could be a plethora of circumstances that would lead to nil compensation’ (PAPLRA, 2019: 72). The presence of a clause dedicated to nil compensation would therefore provide clarity on instances where despite the obligation to pay compensation for expropriation, there may be instances of nil rand compensation. Those instances can then be justified and demarcated more clearly, and we should stop trying to insist that it is already theoretically possible when legally it is unlikely. At this stage of the developments in this area of the law, it is no longer controversial. I think that is one of the reasons we have seen various permutations of nil compensation in a number of Bills over the last couple of years (including, for instance, the Bills aimed at amending expropriation legislation and, of course, the various Bills aimed at amending section 25 of the Constitution), all of which contain varied provisions with possibilities for nil compensation.

The fact that expropriation is essentially compensation-based, coupled with the difficulty that courts have in determining compensation that is not (always) related to market value, suggests that it may be necessary for us to engage more directly with the idea of nil compensation in a much more open, honest and principled manner. I think there is enough evidence to show that this option is not only politically driven but, in fact, legally necessary.

2 The Legal and Philosophical Dichotomy between Land and Property A Transformative Justice Approach to the Rights and Wrongs of South African Property Law

Bulelwa Mabasa , Thomas Ernst Karberg and Siphosethu Zazela

Introduction

The premise of this chapter is that since the advent and the promulgation of the Constitution of the Republic of South Africa, 1996 (Constitution), which came into force on 4 February 1997, South African courts have developed a rich body of jurisprudence that has contributed significantly to developing pre-existing notions of common property law, within a constitutional dispensation.¹ It is widely accepted that transformative justice is not a concept that has a finite period for its achievement. It is an elusive endeavour that must mirror the needs and aspirations of a changing and dynamic society. In its preamble, the Constitution contains an express goal to create ‘a society based on democratic values, social justice and fundamental human rights’ to ‘improve the quality of life of all citizens and free the potential of each person’.

This chapter argues that it is incumbent upon South African society to critique, assess and probe whether the provisions embedded in section 25 (with or without an amendment) of the Constitution are in and of themselves adequate tools to deliver the goals of land justice and land reform within the current property law framework. This chapter asserts that it is critical to implement the provisions contained in section 25 of the Constitution – but that there are underlying structural, systematic, social, economic and historical legacies, as well as legal impediments that continue to evade justice in its essence, even if the constitutional provisions were to be applied to the letter. To support this contention, the drafters of the Constitution appreciated the need to progressively develop principles of transformative justice beyond the role of the judiciary. The statement by the Department of Justice and Constitutional Development that it has committed to ‘co-ordinating a focused national dialogue to review and assess the impact of 25 years of a constitutional democracy’ and whether the intention of constitutionalism is realised (Department of Communications and Information Systems, 2020) finds relevance in the context of the call for an effort to develop a system of property laws that finds its expression, grounding and meaning in the South African population.

The Principle of Transformative Justice

The Preamble of the Constitution states that the Constitution was adopted as the supreme law of the country to, among other goals, ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’; lay the foundation for a democratic and open society; and improve the quality of life of all citizens. Evident in the goals laid out in the Constitution is the desire to facilitate the migration from one form of rule or government to another – an example of an incoming government establishing principles aimed at justice during a period of transition.

Transitional justice denotes measures adopted by the government of the day to address a departing regime’s legacy of repression and violence during a period of political transition (Gready & Robins, 2014: 340). Such methods include truth commissions, the repeal of old discriminatory laws for the creation of new laws, and the creation of new bureaucratic structures (Daly, 2001–2002: 73). Measures one can note as products of the principles of transitional justice in the realm of land reform would include section 25(1) and 25(7) of the Constitution² and the various pieces of statute flowing from these provisions. The aforementioned sections of the Constitution indicate a clear transition from deprivation to express protection against it. Transitional justice has also meant selecting legislation deemed useful and non-discriminatory for use in the legal system of the incoming regime. An example of this, as illustrated in the discussions to follow, is the Deeds Registries Act 47 of 1937.

Though necessary for the seamless introduction and establishment of a new dispensation, one can note that transitional justice serves merely to usher and facilitate. Transitional justice lacks the specificity to substantively address the ills that attach themselves to the new dispensation as legacies of the past government. It is in this way, one can opine, that a state finds itself with parallel legal and political realities – the understanding that one has heightened freedoms under the new political dispensation while one’s lived reality does not mirror the outcomes envisioned by the new legislation and policy.

In this context, we find the principle of transformative justice. Transformative justice is focused not only on the legal and overarching political framework. The principle of transformative justice emanates from the criticism of traditional approaches to nation formation (for example, truth commissions and criminal trials) for providing forms of justice which ‘do not resonate with and are not embedded in communities, cultures and contexts’ (Hoddy, 2021: 341). Transformative justice involves ‘change that emphasises local agency and resources, the prioritisation of process rather than preconceived outcomes, and the challenging of unequal and intersecting power relationships and structures of exclusion’ (Hoddy, 2021: 341). One can thus opine that this is a process that entails the meaningful participation of the polity, particularly those previously marginalised, in the formation and development of the legal and social framework of the country. Transformative justice proposes that ‘empowerment and participation’ be at the centre of nation formation (Hoddy, 2021: 341). There have been few examples of the application of this principle in practice. This chapter, having had regard to South African political history and the legislative structure of the South African property system, aligns with the approach and uses the principles gleaned from it to provide a critique of the South African property law in its current form as well as propose measures for the achievement of transformative justice.

Considering this, it is critical that the transformative potential of section 25 of the Constitution is realised and implemented – not only by our courts but also in the realm of policy development. While, as argued later, shortfalls and spaces for greater inclusion remain in section 25, we provide a short overview of the property clause’s potential for transformation.

Transformation and Section 25 of the Constitution

Section 25 contains three primary pillars, which are a vehicle for transformation. First, it provides in section 25(3) that where property is expropriated, the compensation payable must reflect an equitable balance between the public interest (that is, the purpose for which the property is expropriated) and the interests of those affected (that is, the landowner’s loss as a result of the expropriation). Section 25 lists five factors (which rank equally) in determining what will count as ‘just and equitable’ compensation. Market value is only one of these factors. The mechanism envisaged in section 25 is a flexible one that permits payment of compensation on a scale which can be adjusted based on the circumstances of each case, ranging from above-market value compensation to below-market value compensation and arguably even nil compensation in certain limited circumstances (Ngcukaitobi, 2021: 184).

Secondly, section 25(5) expressly enjoins the state to enable citizens to gain access to land on an equitable basis by taking reasonable legislative and other measures within its available resources.

Finally, section 25(6)–(9) envisages the creation of a range of statutes aimed at transforming land ownership patterns through restitution, strengthening tenure security, and achieving broader land and water reform measures. Some of these statutes have now been created – including the Extension of Security of Tenure Act 62 of 1997, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, the Land Reform (Labour Tenants) Act 3 of 1996 (LTA), the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), the Upgrading of Land Tenure Rights Act 112 of 1991 (ULTRA) and the Restitution Act 22 of 1994.

However, a key provision that has remained under-utilised is section 25(3), which allows for a flexible compensation regime guided primarily by considerations of justice and equity as opposed to market value. The intention of the drafters of the Constitution was clearly to enable a move away from the market-based pre-constitutional approach and to make land reform more affordable for the state when considerations of justice and equity permitted payment of below-market value compensation.

Historically and for policy reasons, the South African state has implemented what is known as the ‘willing buyer, willing seller’ principle of compensation for expropriation or acquisition of land, including for land reform purposes. This principle dictates that where property is expropriated in the public interest, the compensation paid for it should be equivalent to the price a willing buyer would have paid a willing seller for it on the open market. The Constitution does not mandate the willing buyer, willing seller principle. It was a policy choice that reflected the post-1994 shift of the African National Congress (ANC) from a radical Marxist-leaning liberation movement focused on expropriation-centred land reform towards a neoliberal and investor-friendly approach (Lahiff, 2007: 1580). The approach has been criticised as a major obstacle to transformation in that it allows land reform to be ‘dictated by one of the most conservative elements in South African society [i.e. landowners] and one with a vested interest in maintaining the current – highly unequal – structure of the agrarian economy’ (Lahiff, 2007: 1593).

Since approximately 2013, however, the ANC has indicated a desire to move away from the willing buyer, willing seller model towards one focused on payment of below-market value compensation – and possibly expropriation without compensation in some cases. This shift can be demonstrated with reference to recent legislative developments in this area, such as the Property Valuation Act 17 of 2014, which established the office of the Valuer-General for purposes of valuing land identified for land reform and sets out guidelines and factors for such valuations. Planned developments include the (now failed) amendment to section 25 of the Constitution and the Expropriation Bill B23-2020. The constitutional amendment aimed to insert a proviso in section 25 to the effect that compensation for expropriation for land reform purposes may, in certain circumstances, be nil. The Expropriation Bill that is under consideration by the National Council of Provinces at the time of writing aims to repeal the old Expropriation Act of 1975 and to bring the compensation regime in line with the principles espoused in the Constitution.

The question of whether the Constitution implicitly allows nil compensation is beyond the scope of this chapter. However, it is clear that section 25 contains a clear transformative mandate which enjoins the state to pass legislation aimed at land reform and enables it to pay below-market value where that would be just and equitable.

Support for the notion of a concerted and direct effort at reforming property laws finds expression in both the interim and current Constitutions. In other words, beyond the presence of section 25 within the Bill of Rights, it was the intention of the drafters of the Constitution that Parliament and the Executive would, in parallel (with the promise of a constitutional interpretation and application of laws by the courts), contemporaneously seek to either amend and/or repeal laws that work at odds with the constitutional framework after the dawn of democracy.

Schedule 6 of the Constitution is a provision that is hardly considered, debated and applied in the context of property law and land reform, yet it provides a useful lens within which to analyse the role of the law in the discussion on the rights and wrongs of property law in South Africa and how to address the dichotomy between land reform and property laws.

Schedule 6(2)(1)(a) of the Constitution provides that ‘all law that was in force when the new Constitution took effect continues in force, subject to any amendment or repeal and … consistency with the Constitution’. The drafters of the Constitution, therefore, understood that the promulgation of the Constitution and, in particular, section 25 could not, by its mere interpretation and application by the courts, simply eradicate the oppressive body of common laws and legislation that existed prior to 1996. Schedule 6(2)(1)(a) is, therefore, authority for the proposition that the Constitution necessitates a direct, focused and intentional need to transform, repeal and amend the common law in so far as it is at odds with the Constitution. In other words, it was not enough that section 25 was promulgated. It remained incumbent upon Parliament and the Executive pointedly to develop laws and policies aimed at achieving the goals of substantive justice. The court in Soobramoney³ (para. 8) pointed to the conditions of rampant poverty, racial disparities in wealth and the deplorable conditions in which the overwhelming number of South Africans existed prior to the adoption of the Constitution. In essence, therefore, while the law would be developed and interpreted as provided for in section 39(2) of the Constitution,⁴ positive action and conduct in the form of pointed legislation, policy and common-law reform were required. This chapter assesses whether Parliament has exercised its powers adequately to bridge the dichotomy between property laws and land reform in a transformative and meaningful way.

We have briefly discussed the transformative potential of section 25. While section 25(1) of the Constitution protects against the arbitrary deprivation of property unless, by a law of general application, it is useful and necessary to delve deeper and to assess the transformative potential and aspiration of this protection to have meaning and substance, in a large-scale and intentional way. The constitutional provision must be applied within its historical context, especially in light of widespread inequality and an inequitable and skewed property rights regime. The Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) states that ‘an estimated 60% of South Africans have no recorded land or property rights’ (PAPLRA, 2019: ii). This endeavour necessitates an assessment of the status of the current property rights regime in South Africa and if the regime, in and of itself, impedes or elevates land reform objectives. It is trite that Roman-Dutch law is a notable source of the South African law of property. The existence of the Constitution does not, on its own, automatically eradicate or dismantle the legacy of inequality which the South African law of property in its current state carries.

Left unchallenged, common-law principles, in their interaction with the structure of South African property law, particularly as they relate to ownership, only serve to perpetuate inequality and the exclusion of the majority of South Africans. Sachs J wrote in the leading Port Elizabeth Municipality case:⁵ ‘complex socio-economic problems … lie at the heart of the unlawful occupation of land in urban areas’; and under apartheid dispossession was nine-tenths of the law.

Sachs J was of the view that Roman-Dutch law conceptions of the ownership of property may appear neutral on the face of it, but in fact they carry racist notions in their essence (para. 10). This chapter asserts that common-law conceptions of ownership continue to find application in commercial, formal sectors of society and are enjoyed largely by the economically active and white minority,⁶ while the black majority has largely remained in the periphery of property law protection, relying heavily on the elusive land reform promise. In 1997, the year that the Constitution came into force, it is estimated that 32 per cent of South Africa’s population lived in the former TBVC (Transkei, Bophuthatswana, Venda and Ciskei) states and that 63.6 per cent of those inhabitants did not enjoy formal property rights protection (PAPLRA, 2019: 69). This statistic is juxtaposed against approximately 72 per cent of land being held privately in freehold and leasehold.

Schedule 6(2)(2)(b) provides that: ‘old order legislation that continues in force … continues to be administered by the authorities that administered it when the new Constitution took effect’. Schedule 6(2)(2)(b) fortifies the view espoused in this chapter that the mere existence of the Constitution and, indeed, the provisions of section 25 were understood by the drafters of the Constitution not as a means to an end, but rather that there needs to be a revision, reimagining, reworking of common-law principles of property law that continue to permeate and define social and economic relations twenty-six years after the promulgation of the Constitution. In applying the principles of transformative justice discussed earlier, one can thus opine that the transformative endeavour must entail assessment and revision of the private and common-law principles of property which permeate the lived experiences of South Africans. In this vein, an over-reliance on the courts, and in particular the Constitutional Court, to interpret provisions of section 25 of the Constitution would not serve to speed up the slow pace of land reform. This is in the context of an overwhelming majority of historically dispossessed South Africans who have little to no access to the courts to benefit from the development of the common-law notions of ownership and the possible inclusion of indigenous thought systems into South African property law via the judiciary.

With the Constitution being a court of appeal and of final instance and section 25 being a constitutional provision, it bears mention that it would be a hefty burden on the judiciary to single-handedly carry the task and delivery of transformative justice and land reform, without Parliament and the Executive actively undertaking a review of current property laws to bring them in line with South African realities. This would entail South African property law reflecting in policy the values and principles that emanate from indigenous South African systems of tenure (Mabasa, 2021: 67).

This chapter attempts to bring to the fore the inherent, underlying conceptual, legal and philosophical differences between property law and land reform, and ultimately calls for a coherent, purposive upliftment and reimaging of property laws to strengthen land reform objectives.

The Wrongs and Rights of Property Laws

As a member of the Presidential Advisory Panel and the only attorney in a ten-member panel of experts, professionals, academics and businesspeople, I authored the section dealing with ‘what constitutes property in South African law’. Similar to the observation by Sachs J cited earlier in this chapter, I bemoan the fact that despite the superstructure that is the Constitution, Roman-Dutch and English law remains dominant in our legislation in the post-democratic era (PAPLRA, 2019: 69). I point out various examples that include a central piece of legislation in property law which was promulgated in 1937 – the Deeds Registries Act. This Act only recognises the mortgaging of real rights to land and rights of security over leases, servitude and mining rights. The Act is not, on its own, perverse. Its shortcoming is that it only applies to a small formal, commercial and economically active segment of society. Although this Act is blind to which race may rely on it, it presupposes land transactions that have been written down and registered in the Deeds Registry. By virtue of its inherent conceptions derived from common law regarding registrability and principles of ownership and possession, this Act excludes approximately 31 million South Africans who hold and dwell on land outside the formal property system (PAPLRA, 2019: 69).

The Alienation of Land Act 68 of 1981 is another piece of legislation that predates the Constitution, remains valid and does not take into account the property ownership disparities in South Africa. A central feature of the Act is that the purchase and sale of land must be in writing in a deed of sale and signed by the parties. On the face of it, this legislation appears innocuous. However, underneath the lofty concepts of property law is the fact that the overwhelming majority of South Africans cannot benefit from the legal protection of this Act. This is because only the real rights of those whose names appear on the Deeds Registry may seek the protection of the Act. As already mentioned, South Africa remains a divided society which largely has no protection under property laws. As such, I call for the review, assessment and amendment of the legal definition of ‘real rights’ and ‘property’ to align with a multi-faceted approach to land holding that is not dominated by individual tenure. As observed by Brits (2018: 363), most transactions in the informal or customary sector are not recorded in writing, which limits the ability of property laws to resolve land rights as they pertain to communities.

While property laws protect those who have legally recognised and strong property rights, Parliament has perpetuated the exclusion of people without secure tenure in the way that it has persisted with the introduction and continuation of a weak tenure system – which largely affects the black majority. Next, this chapter assesses how the courts have interpreted legislation as it relates to the existing systems of tenure.

Development of the Common Law towards the Protection of Informal Rights

Baleni v Minister of Mineral Resources

This matter dealt with an Australian company’s application for a mining right over communal land in the Xolobeni area in the Eastern Cape. The main issue was whether mining rights could take precedence over informal land rights. The community argued that the granting of the mining right amounted to a deprivation of their informal rights to property in terms of section 2(1) of IPILRA. Considering this, the community argued that its consent was required before the mining right was granted. The mining company opposed the community’s view on the basis that section 23 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) only requires consultation with the affected community prior to awarding a mining right and not during the application process for that right. It also argued that the rights in the MPRDA trump IPILRA on the basis that the MPRDA is the chief statute governing mining and that the MPRDA provides in section 4 that the interpretations consistent with its objects must be preferred over interpretations inconsistent with those objects. The court ruled that mining operations interfere substantially with the agricultural activities and general way of life of the community, which constitutes deprivation as espoused in section 25 of the Constitution. Furthermore, the court stated that both IPILRA and the MPRDA are statutes aimed at redressing the South African history of economic and territorial dispossession under apartheid and, as such, should be read together. Moreover, IPILRA places an additional obligation on the Minister of Mineral Resources to seek the consent of affected communities in terms of customary law as opposed to mere consultation as required by the MPRDA. Where land is held on a communal basis, the community must be allowed to consider the proposed deprivation and make a collective decision regarding their custom and community on whether they consent to the proposed disposal of their land. Consequently, the Minister was prohibited from granting a mining right to the mining company until the company had complied with the provisions of IPILRA.

The Baleni judgment⁷ was a ground-breaking precedent which affirmed the rights and interests of communal and informal land rights holders and emphasised the importance of consultation with such communities. In fact, the rights of such communities have been elevated above common-law landowners in that what is required is their consent as opposed to consultation only (para. 76). The result of this judgment is that a failure to obtain the consent of the community holding informal rights before granting a mining right may expose a mining right holder to judicial review and may ultimately prove fatal to such a mining right.

Maledu v Itereleng Bakgatla Mineral Resources

In this case,⁸ Bakgatla Mineral Resources held mineral rights in respect of land that was registered in 1919 in the Ministry of Rural Development and Land Reform and held in trust on behalf of the Bakgatla-Ba-Kgafela community. In preparation for its mining activities in 2008, Bakgatla Mineral Resources concluded a lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority and the Minister. In 2014, when preparation for full-scale mining operations commenced, these operations badly impacted the farming operations of the community, and they obtained a spoliation order against Bakgatla Mineral Resources. In retaliation, Bakgatla Mineral Resources lodged an eviction application in the High Court to interdict the community from entering the farm.

The community, however, argued that the Tribal Authority did not have sufficient authority to speak for them and that they did not consent to mining on their land – they had not been properly consulted as was required under the terms of the MPRDA. The mining companies had failed to establish that the community had had a reasonable opportunity to participate in the resolution which authorised the conclusion of the surface lease agreement.

The High Court granted the application, and the Supreme Court of Appeal (SCA) refused to grant leave of appeal of the High Court’s decision, so Bakgatla Mineral Resources approached the Constitutional Court, which granted the leave to appeal.

The apex court identified the issues for determination as, first, whether the dispute resolution mechanism created by section 54 of the MPRDA was available to Bakgatla Mineral Resources. Secondly, whether section 54 precluded Bakgatla Mineral Resources from approaching the courts for an eviction order without first exhausting this process and, lastly, whether the community had consented to being deprived of their land rights in the farm in terms of section 2 of IPILRA.⁹

The court found that section 54 of the MPRDA employs mandatory language; therefore, this dispute resolution mechanism must be exhausted before approaching the courts for redress. In this regard, the court held that Bakgatla Mineral Resources was obliged to take all reasonable steps to exhaust the section 54 process, which they had already initiated before approaching the court, and while this process is still undergoing, mining operations cannot proceed as this would undermine the independence of the section 54 process. Over and above this, section 2(4) of IPILRA required the community to have been given sufficient notice and be afforded a reasonable opportunity to participate in person or through representation in the meetings where decisions to dispose of their land were taken. In the circumstances, there was no evidence that this process had taken place, so the decision of the High Court was overturned.

Maledu again emphasised the importance of proper consultation with affected communities, particularly those that hold informal rights under IPILRA. It recognised that tribal authorities do not automatically speak for the communities they ostensibly represent and rejected the old approach of concluding agreements with tribal leaders and authorities without consultation with communities themselves. It also highlighted the importance of exhausting the internal appeal process under section 54 of the MPRDA.

Rahube v Rahube

This matter involved siblings, Ms Matshabelle Mary Rahube and Mr Hendrina Rahube, who lived in a property in 1970.¹⁰ When the grandmother passed on in 1978, there was no documentary proof of her ownership. Ms Rahube moved out of the home in 1973 and moved back in 1977 when her marriage broke down. Mr Rahube became the owner of the property by virtue of his land tenure rights having been converted to full ownership under section 2(1)(a) of ULTRA, which provides for the automatic conversion into ownership of any land tenure right.

His tenure rights were conferred by a deed of grant, which provided for the issuing of a deed of grant in respect of residential units but limited its issuing to the head of the family who desires to purchase a dwelling for occupation by him and members of his family for residential purposes.

The High Court had declared section 2(1) of ULTRA unconstitutional in that its inherently gendered automatic conversion mechanism was inconsistent with the right to equality in section 9 of the Constitution. The basis for the declaration of invalidity was that a woman could, in terms of customary law, not be a ‘head of the family’, thus perpetuating the exclusion of women from land rights ownership. To this end, the High Court reasoned that the conversion of tenure rights did not make provision for a dispute resolution mechanism. It defied the audi alteram partem principle, and the court accordingly held that it was inconsistent with the right of access to courts in section 34 of the Constitution.

Thereafter, the Constitutional Court was approached to confirm the High Court’s order. Here the Constitutional Court held that the Proclamation envisaged a situation where only men could be the head of the family, with women relatives and unmarried sons falling under their control. Consequently, a provision in the statute that differentiated between groups of people did so without a legitimate governmental purpose and is irrational and unconstitutional due to its inconsistency with section 9(1). Moreover, it would undermine the purpose for which ULTRA was enacted – as legislation focused on land reform to redress the injustices caused by the colonial and apartheid regimes. On this basis, the Constitutional Court confirmed the order of the High Court.

Mwelase v Director-General for the Department of Rural Development and Land Reform

This decision, which was the last judgment delivered by Cameron J on his last day as a Justice of the Constitutional Court, involved labour tenants who all occupied land on the Hilton College Estate in KwaZulu-Natal.¹¹ These labour tenants lodged applications under the LTA with the Department of Rural Development and Land Reform before the cut-off date of 31 March 2001. However, the Department failed to process the applications submitted before the cut-off dates. This then necessitated the labour tenants approaching the Land Claims Court (LCC), challenging the Department’s failure to process their applications in time.

Because of this failure, the LCC ordered the appointment of a Special Master for labour tenants to assist the Department in implementing the LTA. However, the LCC found that the labour tenants had not established that the Minister was in contempt of its order, and the SCA unanimously dismissed the appeal against the LCC’s exoneration of the Minister. Subsequently, the labour tenants approached the Constitutional Court for leave to appeal against the LCC and SCA findings.

The Constitutional Court delivered a scathing judgment in which it expressed its frustration with how poorly the government is administering labour tenant applications as well as other forms of land reform. To this end, the court criticised the government’s failure to protect and secure the informal land rights of the destitute and to cure landlessness that was created by the apartheid system.

Delius and Bernart (2021: 100) suggest that legislative reform is a route to enhance land rights and that land rights could be converted into privately held titles. This chapter supports the notion of reforming current property laws to recognise and protect land rights and, as such, recognise ‘family rights’, family grazing land and a multitude of forms of tenure.

Conclusion

As discussed in this chapter, the South African Constitution is the supreme law of the country. Though the Constitution, among other protections, prohibits the arbitrary deprivation of property, a discrepancy exists in respect of who the existing conceptions of ownership in South African property law cater for and protect. South Africans whose property custodianship exists outside the prescripts of what is regarded as ‘ownership’ and consequently what is regarded as ‘private property’ are excluded from protection by South African property law. Consequently, one can opine that participation in those sectors of the economy leans on private property ownership. In that respect, this chapter proposes that a transformative justice approach be adopted in developing and promulgating South African property law. As discussed, transformative justice is a novel concept that arose as a critique of transitional justice. The principles emanating from the concept are thus relatively untested. Despite this, and having had regard to the principles of transformative justice and the South African Constitution, South Africa is well-placed to adopt the principles emanating from transformative justice.

This chapter discusses case law where the court has had to recognise the inequalities emanating from the disparity between land reform and property ownership. This disparity can only be addressed by the legislature taking an active role in the integration of indigenous thought systems, as it relates to the concept of property ownership, into property law as it stands. Such an approach, this chapter proposes, will ultimately serve to remedy the continuous legal battles faced by those on the periphery of the protections of the current conceptions of ownership.

The Constitution in section 34¹² unequivocally provides all with the right of access to justice. Notwithstanding the aforementioned provision, there exist numerous barriers to South Africans’ right to access courts. Particularly relevant among these is spatial inequality. In 2020, the South African Department of Statistics reported that the poorest South Africans are located in the rural peripheries of the country (Department of Statistics South Africa, 2020: 18), outside of urban areas where courts are ordinarily located. In 2018, the South African Human Rights Commission reported that 64 per cent of black people in South Africa live in poverty (South African Human Rights Commission, 2018).

Having regard to the above statistics, the costs of legal proceedings and the periods that legal proceedings typically span, it is untenable for South African courts to be charged with the responsibility to lead the transformation of select areas of South African property law, as discussed. Such an approach would perpetuate the exclusion of those who are the subject of transformative justice.

This chapter emphasises that it is incumbent upon the legislature and the executive to lead the transformative justice agenda insofar as it relates to the South African law of property and land reform.

3 The ‘Justice’ in ‘Just and Equitable’ Compensation

Elmien W. J. du Plessis

Introduction

During his testimony in the South African Students Organisation trial, Steve Biko was called to the witness stand for the defence of nine black activists. At one stage, the prosecutor asked Biko to explain his stance on expropriation: ‘Is there any part of your programme which suggests that all private property must be expropriated, full stop?’ ‘I am not aware of this’, was Biko’s reply.

During interrogation, the court intervened: ‘I think your counsel is probably afraid to mention it. Isn’t it part of the policy to redistribute wealth?’ ‘That is correct’, Biko answered. The court was confused. ‘Now, how can you have a redistribution of wealth without taking it from somebody.’

Biko explained that taking from somebody without abolishing the principle of private ownership is possible. Explaining property, he answered, ‘my relationship with property is not so highly individualistic that it seeks to destroy others. I use it to build others’. The court seems to have accepted this but was still uneasy: ‘What about the White man’s property?’ Biko answered that it is possible that ‘certain people in the country according to whatever values are adopted at the time, own things that they should not have, which historically they have immorally got, to a point which cannot be forgiven’. Continuing this, Biko foresaw the possibility that a time might come when people might be told to ‘[g]ive it back; we will give you what we think it is worth, you know’. The government will pay the price that the government thinks it is worth (Arnold, 2017: 90). Biko foresaw some form of compensation, even if not full market value.

Years later, section 25 of the Constitution of the Republic of South Africa, 1996 (Constitution) shifted our compensation standard from market value to ‘just and equitable’ compensation. Our Constitution is thus a culmination of various conversations, compromises and contestations of the notion of justice that underlies the Constitution. This has certain implications for how section 25 should be interpreted, specifically our understanding of ‘just and equitable’ compensation.

The African National Congress’ (ANC) Nasrec conference in 2018 opened a conversation to reassess this notion of ‘just and equitable’ when the party made a policy decision to consider ‘expropriation without compensation’ (Slade, 2019: 1, 3)¹ as one of the mechanisms to give effect to land reform (ANC, 2017; Du Plessis & Lubbe, 2021). This set a process in motion that eventually ended in the Constitution Eighteenth Amendment Bill (2021). This Bill was not voted on in the National Assembly at the end of 2021 and therefore lapsed.² Still, some valuable lessons can be learnt from this process, which will also become important for interpreting the Expropriation Bill (2020), once enacted.

I do not want to focus too much on the technicalities of the conversation or the broader issue of land redistribution – or what must happen to property once it is expropriated. Of course, with expropriation being part of a process to redistribute or return the land, it does not happen in a vacuum. When there is a need to include the ‘what after’ question, it will be briefly addressed. Instead, this chapter seeks to ask: If compensation must be ‘just and equitable’, what notion of justice informs our understanding of the clause? The focus is, therefore, on compensation for expropriation in cases where land is expropriated for land reform purposes.

The chapter discusses the various forms of justice: transitional, restorative, retributive and transformative. That is followed by a brief historical discussion on the making of section 25 of the Constitution to evaluate the concept of justice that underlies the provision for compensation for expropriation. I argue that the making of the Constitution Eighteenth Amendment Bill was also about reassessing the justice foundation of our Constitution, albeit in the language of expropriation without compensation.

Through this process, the argument is made that the initial concept of justice was transitional and restorative, but this has now shifted to transformative justice. This might influence our interpretation of section 25 of the Constitution and the legislation promulgated to give effect to it. I therefore suggest a preliminary observation on how to understand ‘just’ in the ‘just and equitable’ formulation of section 25(3), which, for the time being, remains unamended in the Constitution.

The chapter is structured as follows: it starts with a cursory overview of the four main types of justice that might apply to section 25. It then discusses the making of section 25 of the Constitution, starting with section 28 of the interim Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution) and ending with the Constitution Eighteenth Amendment Bill. The focus is on the conversations that were had, which can give a glimpse into the type of justice envisioned. Then, focusing on specific submissions, the chapter applies the different notions of justice to ascertain if there is a certain leitmotiv (Du Plessis, 2015) of ‘just and equitable’. A case is then made to consider transformative justice as a theory that informs the ‘just’ in ‘just and equitable’.

Notions of Justice

Introduction

Justice does not define itself and is contextual. Different contexts might require different kinds of justice. Different kinds of justice address different needs, and sometimes different forms of justice overlap (Villa-Vicencio, 2004: 67). There are also individual and communal demands for justice, and these often compete. To complicate things, political and economic considerations often impact the form of justice required to address a situation. Therefore, the forms of justice listed here should not be regarded in silos and are by no means exhaustive but add to the conversation reflecting on the forms of justice underlying section 25.

Transitional Justice

New regimes often face challenges in redressing victims of state wrongs inflicted by previous regimes. International law obligates successive states to repair harms caused by previous regimes (Teitel, 2000: 119). On a national level, states are often torn between the backwards-looking purpose of compensating victims to address past state abuses and the state’s political interests that require it to look forward. This conversation also sits with the complexity of individual and collective dilemmas (Teitel, 2000: 119). With transitional justice, corrective aims are balanced with forward-looking transformation aims. It also mediates individual and collective liability (Teitel, 2000: 119).

Transitional reparatory justice plays a complex role in this regard. It tries to mediate the repair needed between victims and communities, ties the past with the present, and lays the foundation for redistributive policies (Teitel, 2000: 119). Reparatory goals often need to be balanced with economic concerns, and this balance of interests is not static (Okun, 2015).³ This all needs to occur within the rule of law, which, during a time of transitional justice, is also concerned with societal reconciliation and economic transformation (Teitel, 2000: 132).

In this sense, transitional justice deals not only with redress. It is also aimed at changing society. Transitional justice not only wants to redress an injustice, it also wants to change society and re-legitimise the law.

Moreover, the passage of time can create problems with the ability of transitional reparatory projects to address intergenerational justice. In conventional justice settings, the direct wrongdoers or the wrongdoers’ political generation provide reparations to the victims. Over time, the identity of the beneficiaries of the reparatory system and those who will be held liable changes (Veraart, 2009: 56). It then leads to a system where the generation that might not have personal responsibility must pay for past wrongs (Teitel, 2000: 139). Ideally, transitional justice needs to be effected as soon as possible after the end of the wrongdoing. Intergenerational justice becomes important when wrongs are not effectively dealt with as soon as possible.

Intergenerational justice also speaks to the problem of the current generation making sacrifices based on other rationales (Teitel, 2000: 140). Successor generations assume the obligations of the past because evil legacies have implications for long-standing societal concerns and therefore have implications for the current and future generations. This is a collective responsibility, not an individual one, and if unaddressed will lead to the sense of injustice being heightened (Teitel, 2000: 140). It seeks to repair the system rather than change it radically.

Thus, over time, in most reparatory projects, the wrongdoers no longer pay; the innocent people do, and the benefits of the reparations do not go to the original victims but to their descendants. This leads to reparatory projects looking more like social distribution and political projects than any form of corrective justice. These distributive schemes are often controversial as people start to question, for instance, the fairness of allocating public and private benefits along racial lines. This much is also true for South Africa, even recently, after democracy (Teitel, 2000: 141). Race-conscious remedies can be justified when the people who suffered the wrongful race-based harm have a right to reparations from those who harmed them. This leaves the question: when there are ongoing effects of prior official discrimination, how do we deal with it if the original wrongdoers are no longer there? In other words, how do we deal with the legacy of unrepaired injustices in a time of unresolved transitional reparatory justice? (Teitel, 2000: 141). Is this the place of transitional justice, or does transitional justice consist of specific mechanisms built for a specific reason, namely transitioning from one (unjust) system to another (just) system? A strong argument can be made in this regard (Evans, 2019: 8).⁴

In this context, one can argue that South Africa is ‘post-transition’ as far as the traditional, transitional justice mechanisms such as truth commissions, amnesties and reparations are concerned (whether concluded successfully or not) (Evans, 2019: 2). This might then require a move to another form of justice.

Restorative Justice

Restorative justice (Murphy, 2015)⁵ also works within the realm of transitional justice. While the two concepts share certain underlying normative values, the two terms should not be used interchangeably. Some scholars argue that restorative justice is unsuitable for transitional problems because it is an underdeveloped concept in such settings and does not necessarily allow for punishment, which might be required in specific transitional contexts (Murphy, 2015). The role of forgiveness in restorative justice, which might not be desirable in transitional justice settings, is also critical.

Restorative justice is context insensitive, while transitional justice is contextual (Murphy, 2015). Restorative justice focuses on the relationship among the offender, the victim and the community in which the offence is committed (Walker, 2006: 383). This means justice is fundamentally about repairing damaged relationships and addressing wrongdoing to restore a disrupted equilibrium. Restorative justice calls for balance, harmony and reconciliation (Pienaar, 2015: 157).⁶

Restorative justice is victim-focused, giving the victim a voice in the restoration process. It asks the victim what he or she requires to make amends. It also requires the perpetrator to take responsibility, apologise, make good (Pienaar, 2015: 157), and thereby restore the offender’s dignity and sense of self-worth (Zehr, 1990). The key aim of restorative justice is forgiveness,⁷ rebuilding or building bonds and providing for measures such as restitution payments to restore the relationship (Brathwaite, 2002).

The call for restitution focuses on the restoration of dignity (Gibson, 2009; Dikoko v Mokhatla⁸). Pienaar (2015: 14) argues that restitution measures are not exceptions to property guarantees, but rather natural consequences. Redress follows naturally in a new constitutional dispensation from the property clause.

Restorative justice is primarily concerned with social relationships – restoring these relationships, but also establishing or re-establishing socially equal relationships (Llewellyn, 1998: 1, 31, 33, 36).⁹ Focusing on social equality means it is important to attend to the nature of the relationship between individuals, groups and communities. This requires a focus on the wrong and the context and causes of that wrong (Llewellyn, 1998: 1).

Since it is about restoring dignity, respect and relationships, the question of what is required to restore relationships will be context dependent. Restoring does not mean restoring the position as it was before the wrong but is focused on working on ideal social relationships (that might have been radically unequal to begin with, before the wrong) (Llewellyn, 1998: 3). Restorative justice, therefore, not only has a strong moral component to it but also is, like transitional justice, oriented towards the future. It offers a relational view of justice (Harris, 1987: 27–38; Nedelsky, 1993: 13; Koggel, 1997; Llewellyn, 1998: 1), aiming to protect the human relationship.

Restitution is an important part of the restorative justice process. However, there are different understandings of what ‘restitution’ entails in the restorative justice context (Llewellyn, 1998: 22). Restorative justice is also not only concerned with restitution as the ultimate aim of justice (Llewellyn, 1998: 25). Restitution alone will also not bring about the restoration of social relationships. Restoration is thus not an end in itself but rather regarded as part of the requirement of justice. In this context, compensation is required to the extent that it enables restoration without creating new harm. While it looks at restoration, it is ultimately not concerned about the structural causes of crime (Coker, 2002: 144).

Retributive Justice

Retributive justice focuses on punishment, and very little is required from the wrongdoer – the wrongdoer merely has to endure the punishment (Llewellyn, 1998: 37). There is no need for a wrongdoer in such a situation to take responsibility for their actions (other than enduring punishment), which often leads to a wrongdoer focusing on the injustice they suffer because of the punishment (Llewellyn, 1998: 37). Punishment should be understood as any negative outcome imposed on a wrongdoer in response to the wrongdoing (Wenzel & Okimoto, 2016: 239).

It places the blame on particular individuals. It does not regard the wrongdoing in the context of a society that might be problematic and that might need social reform (Llewellyn, 1998: 37). Some argue that retributive justice is justified because wrongdoing merits punishment (proportionate to the wrongdoing) and that it is morally better if a wrongdoer suffers punishment than not (Rawls, 1995: 4–5).

Transformative Justice

Like transitional justice, transformative justice is concerned with addressing historical wrongs. But, unlike transitional justice, transformative justice focuses on socio-economic rights issues, is concerned with structural violence (Gready & Robins, 2014: 1; for a detailed argument, see Evans, 2016) and long-term change, and focuses on the participation of affected communities rather than on elite bargains (Evans, 2016: 2).

Transformative justice seeks to understand the deep roots of the symptomatic problems in society and to break away from the traditions or customs that caused the pain. It goes further than transitional justice: instead of focusing on reconciliation and legal accountability, it focuses on the deep social inequalities and class structures (Garnand, 2021: 11). In other words, the focus is on correcting the injustices and transforming societies to overcome inequality and exclusion (Evans & Wilkins, 2019: 140; Gready et al., 2012: 1). It requires ‘a more sophisticated understanding of the relationship between past, present, and future, and between continuity and change in post conflict societies’ (Gready et al., 2012: 3). More pertinently, it interrogates the structural violence that resulted from historical patterns to avoid repetition. To do this, transformative justice requires an engagement with the past and the present while establishing how the lingering past shapes the present (and invariably the future) (Gready et al., 2012: 3).

This fills the gap that transitional justice leaves, namely, how to address poverty and inequality as the inheritance of a violent or repressive past, since transitional justice is often more focused on peace-building and post-conflict reconstruction through democratisation and market liberalisation (Gready et al., 2012: 4). It goes further than restorative justice in that it does not seek to restore a specific relationship or time but to transform that which caused the injustice in the first place. Its aim is not to punish or retribute but to transform.

I now turn to the making of section 25 to assess what form of justice best describes the various eras of the making and understanding of section 25.

The Making of Section 25

Introduction

The early 1990s was a time of significant change in South Africa as various interested parties contested the transition from an apartheid South Africa to a constitutional dispensation. The first attempt at such negotiations was the Convention for a Democratic South Africa (CODESA I), which set some ground rules going forward and established working groups to prepare for CODESA II. CODESA II, however, collapsed because of a lack of agreement on the size of the majorities necessary in an elected constitution-making body to adopt a new Constitution (Corder & Du Plessis, 1994: 6; see also Cachalia, 1992; Welsh, 1992; Friedman, 2021). Eventually, a joint proposal was reached between the ANC and the government, resulting in a joint proposal for power-sharing and the establishment of a five-year interim government of national unity after electing a Constitutional Assembly. This led to the Multi-Party Negotiation Process (MPNP), tasked with crafting an interim Constitution.

Before briefly discussing the drafting process, it should perhaps be clarified from the outset that I subscribe to the view that Constitutions are living documents that often transcend their original meaning (Strauss, 2010: 1; see also Balkin, 2012, who supplements Strauss’ views). When we want to understand and interpret the Constitution, it is useful to understand what was intended when it was drafted. However, the language of the South African Constitution is open-ended enough not to require courts and the legislature to be bound by one unevolved meaning.

The Interim Constitution

In the late 1980s, the ANC outlined its vision for a Constitution (ANC, 1989; Klug, 2000: 125).¹⁰ These guidelines were contained in a 1990 document that focused on a Bill of Rights for South Africa (Constitutional Committee, 1991), with a revised Bill of Rights produced in 1992 (Sachs, 1992). This Bill protected the right to own private property and did not deal with the issue of land ownership (Mutua, 1997: 78). It did assure the owners that land restoration would be handled by a tribunal and be subject to the payment of compensation (Sachs, 1992: 222). It is with this that they entered CODESA.

Initially, the MPNP was advised against including a property clause in the interim Constitution. However, it was eventually added when it became evident that the National Party and the libertarian parties would not settle unless it was. Property rights were therefore guaranteed, and interference with such rights was circumscribed in detail.¹¹ Expropriation was limited to ‘public purposes’ only, and the compensation standard was set at ‘just and equitable’ to establish a balancing effect (between the vested interests and legitimate claims) (Corder & Du Plessis, 1994: 183).

Section 28 did not make provision for land reform in the property clause (Corder & Du Plessis, 1994: 183). Instead, land reform was included in section 8(3)(b), the equality clause, and provided that ‘[e]very person or community dispossessed of rights in land before the commencement of this Constitution … [as a result of discriminatory legislation that existed before the commencement of the Constitution] … shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123’. In the interim Constitution, land reform was part of the question of equality.

The question of the type of justice was not articulated in the clause itself or the Bill of Rights, but the postamble of the Constitution focused on reconciliation and provided:

This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans … These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

‘Just and equitable’ must be viewed in this context. The approach is restorative, not retributive. There was a need for substantive corrective justice, juxtaposed with white beneficiaries’ fear that transformation would involve material sacrifices. Nevertheless, there was also the knowledge that transformation in the form of restitution and redistribution would inevitably impact the wealth and privilege accumulated during apartheid. As van der Walt (2009: 6) puts it:

A political settlement could bring about a peaceful transition to a democracy based on human dignity and equality without necessarily destroying existing privilege. A peaceful transition therefore became possible on the basis of agreement that political change, while inevitable, need not be disastrous, but it was clear that such a transition would scarcely enjoy any legitimacy unless it could provide real benefits for poor and marginalised members and sectors of society. A peaceful political transformation thus inevitably had to include very substantial, even dramatic, corrective measures that would change the existing distribution of wealth visibly and substantively.

At the beginning of the democracy, there were firm hopes that such an approach would lead to reconciliation. The Truth and Reconciliation Commission (TRC), founded on the values of restorative justice, played an important role in the transition (Du Plessis, 2017).¹² In its final report, the TRC stated that: ‘The tendency to equate justice with retribution must be challenged and the concept of restorative justice considered as an alternative … focusing on the healing of victims and perpetrators and on communal restoration’ (TRC Report, 1999b: ch. 5, para. 55). The TRC did seriously consider the calls for including victims of forced removals (TRC Report, 1999a: vol. 1, ch. 4, para. 54), but the TRC narrowed the mandate to ‘human rights violations committed as specific acts, resulting in severe physical and/or mental injury, in the course of past political conflict’ (TRC Report, 1999a: vol. 1, ch. 4, para. 55). It focused on ‘bodily integrity rights’ (TRC Report, 1999a: vol. 1, ch. 4, para. 56). It did not include questions of distributive justice (Madlingozi, 2007: 116) or consider the effects of the laws passed by the apartheid government. This was because it viewed itself as one of several instruments for transformation (TRC Report, 1999a: vol. 1, ch. 4, para. 55).

Thus, the TRC (s. 3(1)(a)) focused only on gross human rights violations (Lansing & King, 1998; Simcock, 2011),¹³ looking for clear, individual victims and providing amnesty for identifiable perpetrators. It was focused on individuals, not on society, and did not address systemic issues. And while the deprivation of land was violent, one would suspect that it was not included in the TRC process due to the lack of physical violence that infringes on bodily integrity rights, where one perpetrator could be identified and victims could be neatly isolated.¹⁴

It can be argued that the TRC was well aware of its limitations and allowed for other avenues to be used in pursuing justice (Simcock, 2011: 242). In other words, the TRC did not exclude reaching reconciliation through other avenues. There was also a realisation that the TRC could not lead to ultimate justice and, in some cases, might even hinder access to justice (Langa, 2000: 353).¹⁵

What was, however, left unaddressed was the suspicion that the legal order itself sanctioned the dispossession (Veraart, 2009: 48) and must now be trusted to restore it. This dispossession that took place through legislation¹⁶ not only had an economic or punitive effect but was political in that it supported the apartheid project of separate development. It crushed the social fibre of communities and often led to perpetual poverty in once-stable families.¹⁷ This has a generational spill-over that entrenches systemic inequalities unless properly addressed. Restoration of property thus plays a role in restoring dignity as it would enable individuals to participate in social and economic life and show a renewed commitment to human rights (Allen, 2006: 5). Villa-Vicencio writes: ‘[H]uman security, dignity and political stability occur when basic material needs are met. … Bluntly put, a simple payment of reparations to victims of Apartheid, as important as this is, is not sufficient to restore the human and civil dignity of Apartheid’s victims. Reparation demands more’ (Villa-Vicencio, 2004: 76).

The restorative justice model seemed to have limited application, with the government not responding to the Commission’s further recommendations on reparations (TRC Report, 1999b: vol. 5, para. 39).¹⁸ This is particularly lamentable since reparations are an integral part of the ‘justice’ in restorative justice. The relationship between restorative justice and reparations is reciprocal (Llewellyn, 2004: 167). Arguably, in a restorative justice context, the payment of compensation would be a requirement. And as the goal is not to punish the wrongdoer (or the descendants of the wrongdoer), the amount must also not impede the restoration or redistribution of the land itself. The amount would be that which helps to strike this balance.

The Constitution

While not as explicit as in the postamble of the interim Constitution, such thinking was still possible in the Constitution. Section 25 (the ‘property clause’) both protects holders of rights in property (s. 25(1)–(3)) and initiates reformist imperatives (s. 25(5)–(8)). In the one-system-of-law view,¹⁹ the two parts do not stand opposite each other but form part of the same constitutional goal and should be read together. This requires a balancing of rights. The court in AgriSA v Minister of Minerals and Energy²⁰ said:

The approach to be adopted in interpreting section 25, with particular reference to expropriation, is to have regard to the special role that this section has to play in facilitating the fulfilment of our country’s nation-building and reconciliation responsibilities, by recognising the need to open up economic opportunities to all South Africans. This section thus sits at the heart of an inevitable tension between the interests of the wealthy and those of the previously disadvantaged. This tension is likely to occupy South Africans for many years to come, in the process of undertaking the difficult task of seeking to achieve the equitable distribution of land and wealth to all.

(para. 60)

Creative tension is visible in the compensation provision that requires balancing the public interest (in land reform) and the interest of those affected (the landowner and the possible beneficiary). This balancing seeks to avoid a zero-sum game, and it is a creative tension that should be balanced and reconciled as far as possible. Notions of justice should play a facilitating role in achieving this balance. But what justice?

Courts’ Interpretation

It seems that the courts thus far have given little consideration to the notion of justice underlying ‘just and equitable’, focusing instead on what compensation entails rather than how compensation balances the interests of the parties. For instance, in Du Toit²¹ (para. 22), it was held that the expropriatee must be put in the same position he would have been in but for the expropriation. In City of Cape Town²² (para. 21), it was held that an owner may not be better or worse off because of the expropriation and that a monetary award must restore the status quo ante. Khumalo v Potgieter²³ (para. 22) stated that compensation is paid to ensure that the expropriatee is justly and equitably compensated for his loss, while Hermanus (para. 15) ruled that the expropriatee is compensated for the loss of the property. This sentiment was echoed in Ash v Department of Land Affairs²⁴ (paras. 34–35), where it was found that the interest of the expropriatee requires full indemnity when expropriated. Therefore, it is possible to pay more than market value.

In Haakdoornbult²⁵ (para. 48), the court ruled that for compensation to be fair, it must be recompense. To the court, compensation must put the dispossessed, insofar as money can do it, in the same position as if the land had not been taken. This compensation might not always be market value, but might be something more,

[b]ecause of important structural and politico-cultural reasons indigenous people suffer disproportionately when displaced and Western concepts of expropriation and compensation are not always suitable when dealing with community-held tribal land. A wider range of socially relevant factors should consequently be taken into account, such as resettlement costs and, in appropriate circumstances, solace for emotional distress.

(Haakdoornbult, para. 48)

More recently, the court in Mhlanganisweni Community²⁶ relied on several foreign dicta to show that the purpose of compensation is to recompense. In Florence v Government,²⁷ the Constitutional Court, in the context of a restitution claim, opted for the ‘generous construction [rather than] a merely textual or legalistic one to afford claimants the fullest possible protection of their constitutional guarantees’ (para. 48). The focus moved from recompensing to constitutional guarantees. When calculating compensation, the court warned that the burden on the fiscus was an important consideration, as compensation claims are paid from taxpayers’ money and therefore need to advance a public purpose (para. 71). The court, significantly, acknowledged the proportionality or the balance required between the interest of the individual and that of the public.

The one outlier is Msiza in the Land Claims Court,²⁸ where the court stated that ‘[t]he departure point for the determination of compensation is justice and equity’ (para. 29). The court interpreted this justice as ‘redistributive justice, which lies at the cornerstone of section 25 of the Constitution’ (para. 15). The court regarded issues of justice and equity as paramount in calculating compensation (and not as a second-level review test) and applied these principles to strike an equilibrium between the different interests (paras. 75–76). This is correct. However, it was overturned by the Supreme Court of Appeal.²⁹

What is evident from this summary of cases is that the bulk of these justifications for the payment of compensation place ‘property’ at the centre of the inquiry without focusing much on the competing claims. Despite the focus on recompensing the individual, the central principle should remain that the amount of compensation should reflect an equitable balance between the public interest and the interests of those affected. This balance must be established with reference to the relevant circumstances and should focus on the concepts of justice and equity rather than the property itself.

Call for Change

Despite these mechanisms being available to the government, it mostly paid market value in case of expropriation. Thus, the frustration for slow land reform was blamed on the provision that compensation must be paid when expropriating property.

Still, various reports (HLP, 2017; PAPLRA, 2019), experts (Parliamentary Monitoring Group, 2019), courts,³⁰ and even President Ramaphosa himself (Ramaphosa, 2018), said that section 25 is not an impediment to land reform and does allow for compensation below market value. The Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP) recorded Justice Albie Sachs saying that:

Far from being a barrier to radical land redistribution, the Constitution in fact requires and facilitates extensive and progressive programmes of land reform. It provides for constitutional and judicial control to ensure equitable access and prevent abuse. It contains no willing seller, willing buyer principle, the application of which could make expropriation unaffordable.

(HLP, 2017: 206)

This was echoed by Justice Dikgang Moseneke, who said: ‘Everyone, whose property is expropriated, must be for a purpose the Constitution authorises and against payment of equitable compensation. The willingness of the buyer and/or the seller may facilitate a smooth transaction, but does not seem to be a constitutional requirement’ (HLP, 2017: 206). If the Constitution does not impede land reform, it is possible that the call for amending the Constitution, in large part, was about our understanding of ‘justice’, blurring the lines between law, politics and morality (Du Toit, 2018).

This issue of justice and the moral argument is evident in the language often employed in the conversation: current (white) landowners are often referred to as ‘thieves’ (De Lange, 2011), implying that their land ownership rests on an immoral deed, regardless of whether the land was acquired under valid laws or after apartheid. Some commentators (Grootes, 2018) observe that certain aspects of this debate are more of a demand that white people lose something, that they should pay to some extent for what their ancestors did. On the other hand, some white people admit no personal culpability and claim they acquired the land by lawful means (Oppenheimer, 2020).

This all rests on the centuries of dispossession of land and exploitation (see Desmond, 1970; Walker & Bradford, 1988) that culminated in four decades of apartheid. Thus, when the foundations of the Constitution were negotiated, white political power was intertwined with social and economic privilege (Terreblanche, 2002). The remnants of this institutionalised privilege and disadvantage are evident in South African society today, which is still primarily skewed along racial lines, including land ownership (Sulla et al., 2022: 1, 3).³¹ The frustration over slow land reform was fertile ground for a contestation on section 25, specifically the compensation provision.

Constitution Eighteenth Amendment Bill

Thus, on 27 February 2018, Julius Malema of the Economic Freedom Fighters (EFF) introduced a motion in Parliament by stating that ‘almost 400 years ago, a criminal by the name of Jan van Riebeeck landed in our native land and declared an already occupied land by the native population as a no-man’s land’. People who followed treated Africans as less than human, not deserving land ownership, thereby disempowering Africans ‘of the ability to call this place their land was initiated in blood and pain’ (National Assembly, 2018: 25–26).

Criticising the negotiation process in the 1990s, he stated that ‘[t]hose who came in power in 1994 carrying the popular mandate of our people to restore the dignity of the African child … building false reconciliation without justice’.

[The] time for reconciliation is over; now is the time for justice. … We would have failed those who came before us if we were to pay anyone for having committed genocide. … Those who are saying we must pay for the land are actually arguing with us that we must thank those who killed our people. … We must ensure that we restore the dignity of our people without compensating the criminals who stole our land.

(National Assembly, 2018: 28–30)

Some argue that framing the conversation in terms of criminal language is done to ensure punishment by confiscating the land (Sishuba, 2017; Van Staden, 2020). Then Minister of Water and Sanitation, Gugile Nkwinti, clarified the ANC’s position:

The ANC unequivocally support the principle of land expropriation without compensation as moved by the EFF. We may disagree on the modalities but we agree on the principle. … Land shall be expropriated without compensation. This will be implemented in a way that increases agricultural production, improves food security and ensures that land is returned to those from whom it was taken under colonialism and apartheid.

(National Assembly, 2018: 34)

Later, the ANC added that ‘expropriation without compensation is our policy’, but that this does not mean that ‘people must smash and grab, each one for himself and the devil takes the hindmost. … We are saying a scientific systemic tool must be developed to ensure that the redress in so far as the land question, the redistribution, is fast-tracked through a scientific means, constitutional means and legislated means’ (National Assembly, 2018: 82).

The African Christian Democratic Party acknowledged the historical socio-economic injustices concerning land ownership and forced dispossession and supported ‘fair, legal and just reform and land redistribution’. Nevertheless, it did not support the notion, believing it to be another forced takeover of land, paying evil with evil (National Assembly, 2018: 65), and rejected what it deemed punitive justice.

This summary of the primary debates in parliament and the public arena forms the background of a discussion on the possible future interpretation of the ‘just’ in ‘just and equitable’ compensation.

Conclusion: It Is Time for a Transformative Justice Framework

The transition from apartheid South Africa to a constitutional democracy was done with much emphasis on a human rights framework contained in the Constitution (Mutua, 1997). But a rights framework can also freeze hierarchies and preserve the social and economic status quo if it does not actively use the rights to promote social and economic change (Friedman, 2021: 127).³² If one is not careful, the risk is to transition from one government to another with the hierarchies intact instead of transforming society. Transition happens at the top, while transformation goes to the root (Daly, 2001: 74).

This tension is evident in section 25, where a failure by the state to utilise its provisions fully has, to a great extent, frozen hierarchies and left systemic injustices in place, and where the systemic problems as inherited from the apartheid and colonial past have not been properly addressed.

The law has a role to play here. Markets are not ‘self-regulating’. They operate with a regime of legal rules and entitlements in the background (Klare, 1991: 81). Legal entitlements of owners can thus hamper the distribution of wealth, and in the quest for redistribution of such wealth, the law will be confronted with what it deems to be ‘just’.

Transformative justice provides an apt framework for interpreting section 25 as we advance. It asks us to focus on inequality and poverty, to require participation from society, to address structural violence, and to emphasise state-building and institutional reforms. As a developing field, it fills the much-needed gap of restructuring society to explicitly address poverty and inequality and the structures that uphold them. Utilising the concept of transformative justice to interpret the requirement of ‘just and equitable’ in section 25 will enable the courts and decision-makers to address structural violence and socio-economic issues with deep historical roots (Evans, 2019). It serves as a framework to guide actions.

Does this require a constitutional amendment? In my opinion, no. But this does not mean that the process of amending section 25, even if it ended with no amendment, was for nothing. This process could have benefited from a more explicit conversation about the notions of justice that should inform section 25. When Mr Malema said ‘there can be no reconciliation without justice’, he did not specify the type of justice that should inform such a process. This was explicitly done in the interim Constitution with its postamble and during the TRC process.

I would call for a transformative notion of justice, which incorporates redistributive issues by also indicating what we want to achieve with the redistribution, and still retains the elements of transitional and restorative justice in that it recognises that an individual can only truly experience dignity if a society is transformed. The Constitution lays down the possibilities; it is for us to realise it.

4 The Tale of Two Women Is the Transformative Thrust Embodied in the Property Clause a Theory or a Lived Reality Where Land Reform Is Concerned?

Juanita M. Pienaar

Introduction

Post-apartheid, the constitutional dispensation has revived debate about the content of ownership. Although the property clause encapsulates the continued existence of the notion of private ownership, its provisions indicate clearly that arguments in favour of the absoluteness of ownership are no longer sustainable, if they ever were. The property clause sets out a framework that regulates the context and manner in which deprivation and expropriation of property can take place, thus indicating the continued relevance of private ownership, but within a new constitutional framework. Accordingly, the property clause explicitly requires reform of access to land, water and other natural resources, which indicates that a more socially responsible form of ownership is envisaged for the future. The constitutional vision for property emerges clearly: it employs property (and its protection) to work towards achieving a society founded on the values of freedom, dignity and equality [footnotes omitted].

(Pope & Du Plessis, 2020: 91)

While the role and function of ownership are directed in accordance with the particular legal and constitutional systems in which it functions, in South Africa, the ‘constitutional vision for property’ (Michelman & Marais, 2018: 121) is increasingly highlighted. This calls for a ‘modest systemic status’ (Michelman & Marais, 2018: 121), thereby impacting the overall centrality of the role of ownership.

Although academics and practitioners have underscored the potential of the property clause to transform property rights and, inevitably, also society (Van der Walt, 2009: 5),¹ this chapter is more focused on whether specific land reform legislation in South Africa dealing with vulnerable occupiers in particular has given effect to the transformative thrust of the property clause, irrespective of attempts to amend that clause and change its current form. Is it possible that the transformative thrust, integral to land reform endeavours, has remained a concept in theory only and thus elusive, or has it become a lived reality for specific beneficiaries under the land reform programme?

Although land reform is all-encompassing, with three interconnected sub-programmes, the focus of this chapter is specifically on measures regulating the relationship of landowners vis-à-vis occupiers for purposes of the Extension of Security of Tenure Act 62 of 1997, better known as ESTA. Has the transformative thrust of the property clause had any impact, specifically where the relevant relationship continues to be unequal when approached through a lens that endorses hierarchical structures in terms of which ownership is still deemed to be the apex right? (Van der Walt, 2012: 113–15; Wilson, 2021: 11).² This is critical, as intended beneficiaries under this particular sub-programme remain vulnerable sectors of South African society, like the two elderly women who form the focus of this exploration: Mrs Phillips and Mrs Malan.

The background to the measures intended to protect the persons in question will be provided first, followed by a discussion of Grobler v Phillips and Nimble Investments.³ A reflection follows thereafter, having regard to property law rules and principles. Some ideas regarding the transformative thrust of the property clause are offered, before concluding.

Vulnerable Occupiers and the Extension of Security of Tenure Act 62 of 1997

Background

Decades of focused racial spatial planning and social engineering – apartheid (Van Wyk, 2020: 1–22), succeeding centuries of colonialism and imperialism (Terreblanche, 2002; Ngcukaitobi, 2021) ultimately resulted in a complex (Pienaar, 2014: 141–52), fragmented South African land control system (Pienaar, 2014: 160–62). While an exploratory land reform programme was embarked on under the former Nationalist government in 1991, these initial steps were too few and too superficial, calling for a much more engrained, focused effort. A fully fledged land reform programme followed post-Constitution, embedded in the property clause, in section 25(5) on redistribution (Kotzé & Pienaar, 2021: 278–322), section 25(6) on tenure reform (Hornby et al., 2017) and section 25(7) on restitution (Walker, 2008; Fay & James, 2009). Section 25(8) furthermore provides for the reform of all natural resources to the benefit of all South Africans generally, and section 25(9) refers to legislation to be promulgated for purposes of the tenure reform programme.

Measures Protecting Vulnerable Occupiers

Property law and land reform are inextricably linked (Muller et al., 2019: 675–84). Whether the South African Bill of Rights should embody a property clause, as well as the role and function thereof, was much debated (Chaskalson, 1994: 131, 1995: 222–40; Coggin, 2021). That debate revived, to some extent, when the amendment of the property clause was placed on the agenda in 2018, and a review committee was established accordingly.

A uniquely South African property clause, sculpted to deal with home-bred needs and demands, was confirmed in Certification of the Constitution.⁴ Notably, this entailed specifically embedding a land reform programme in the property clause. Globally, property clauses are usually employed for one of two objectives: (a) to preserve and protect existing rights and interests or (b) to transform and enhance (Wilson, 2021: 19–20). Given the South African background and the fact that the majority of the sub-clauses in section 25 are indeed aimed at transforming and effecting change, and given that land reform is located in the property clause specifically, it is undeniable that the South African property clause is indeed an example of the second category of clauses (Van der Walt, 2012: 173; Wilson, 2021).⁵ Thus, endorsing and promoting land reform and adjusting property constructs and relations are part and parcel of the national transformation endeavour. Subsection 25(5)–(9) very clearly places specific duties on the state to take reasonable steps to achieve set outcomes, including by promulgating relevant and appropriate legislation. Under section 25(5) and (6), various legislative measures were indeed promulgated to benefit vulnerable persons, persons occupying land that belongs to another, with consent or in accordance with a specific right to occupy (Pienaar, 2014: 305–19; Muller et al., 2019: 498–509; Muller & Viljoen, 2021: 366–77, 380, 486–90; Wilson, 2021: 82–103)⁶ including under ESTA (Muller et al., 2019: 751–63; Muller & Viljoen, 2021: 287–96; Wilson, 2021: 57–81).⁷

Extension of Security of Tenure Act 62 of 1997 (ESTA)

The Aim of ESTA

In Molusi v Voges,⁸ the Constitutional Court (CC) held that ESTA ‘was enacted, among other things, to improve the conditions of occupiers of premises on farmland and to afford them substantive protections that the common-law remedies may not afford them’ (para. 7). That was necessary as:

[P]re-reform-era land law reflected the common-law-based view that existing land rights should be entrenched and protected against unlawful intrusions. The land reform legislation – ESTA in this case – changed that view. It highlights the reformist view that the common law principles and practices of land law, that entrench unfair patterns of social domination and marginalisation of vulnerable occupiers in eviction cases, need to change.

(para. 39)

At issue was whether the termination of the right of residence and eviction were lawful, as it was granted under the common law on the basis of a lease agreement (para. 2). Nkabinde J highlighted that ESTA has a very specific application to particular vulnerable categories of persons, for particular reasons (para. 39). Relying on a ‘common law ground’ could not force the matter into the (pre-constitutional) common-law paradigm. The finding of the Supreme Court of Appeal (SCA) that the respondents were ‘perfectly entitled to rely … on such common law grounds … in support of the pleaded claim for eviction’ was incorrect (para. 29). Fairness furthermore played an important role in the process as a whole. In contrast, the SCA relied on the common-law principles of the rei vindicatio and the reasonableness of the notice of termination (para. 45).

The judgment underlined that common-law evictions are things of the past where rural dwellers are concerned (Pienaar, 2014: 395–417; Muller et al., 2019: 700–15; Muller & Viljoen, 2021: 330–33, 431–41). Instead, any interference with occupation, specifically eviction, can only take place in accordance with the provisions of ESTA. Much more is at stake than merely indicating standing or that there is a ground for the application. Eviction orders may only be granted when it is just and equitable in a particular set of circumstances (ESTA, s. 19(3)).⁹ Common law and its approaches, rules and implications are explicitly excluded in this context.

Intended Beneficiaries

Occupiers who meet the requirements and fall within the ambit of ESTA stand to benefit. This includes:

1. (a) ‘normal’ occupiers, usually farm workers or former farm workers, residing on land which belongs to another and who have or had consent or another right in law to do so;¹⁰ and

2. (b) ‘long term’ occupiers (ESTA, s. 8(4)), who have occupied land for a period longer than ten years and who have reached the age of sixty or are employees or former employees of the owner or person in charge and as a result of ill-health, injury or disability are unable to supply labour.¹¹

When a person falls within the ambit of ESTA, procedural and substantive benefits follow (Pienaar, 2014: 395–417). However, for many years, for women in particular, the definitions and categorisations of occupier status remained contentious. ‘Indirect’ occupier status often referred to women who were deemed to derive their occupier status via spouses. While case law found that a wife could, for example, remain on the land because of the right to family life of her spouse, that in itself did not make her an occupier for purposes of ESTA.¹² This had important implications for joinder and placing women’s interests before the court (Pienaar & Geyser, 2010: 248–60). The issue was finally resolved in the Constitutional Court judgment of Klaase v Van der Merwe,¹³ having regard to Mrs Klaase’s fundamental rights, including her right not to be evicted from her home without a court order, made after considering all relevant circumstances, and her right to have her human dignity respected and protected (para. 52).

In light of the main objectives of ESTA and the frequently precarious position of female rural dwellers, the focus shifts to Grobler v Phillips and Nimble Investments.

The Tale of Two Women

Grobler v Phillips

Grobler v Phillips entailed an eviction application against an eighty-five-year-old widow, Mrs Phillips, who occupied property with her disabled son. Mrs Phillips had been in occupation of the property since 1947, when she was eleven years old. The appellant was successful with an eviction application in the magistrate’s court, after which the High Court set aside the eviction order on appeal. On appeal to the SCA, the order of the High Court was confirmed, on the basis that the granting of the eviction order was not just and equitable. That conclusion was reached because of the particular circumstances of Mrs Phillips, including the long period of her occupation, that she would have been protected under ESTA had township development not taken place¹⁴ and because of a verbal promise made to her by previous landowners that she would be able to continue residing on the property for the rest of her life. While that oral right to reside, habitatio, was not registered and recorded against the title deed of the property, and thus not enforceable against the current landowner, this factor, considered with the other factors, enjoined the court not to grant an eviction order. That led to the CC judgment, handed down in September 2022, by Tshiqi J.

The CC-decision first relayed the litigation history (paras. 6–20), highlighting that the landowner, Mr Grobler, had already purchased the property in 2008 and had since then been unable to use his land. Justice Tshiqi underscored that eviction applications always raised constitutional matters, in particular with respect to the primary home, and that it was in this light that the interpretation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was critical (para. 22). The court further highlighted that (a) the SCA specifically considered Mrs Phillips’ wish to remain on the property and not to be moved; and (b) that the SCA erroneously found that it was the High Court that had to exercise a discretion to grant an eviction order, whereas it was actually the magistrate’s court’s prerogative (para. 23). A rather formalistic, technical approach to the decision, before focusing on the question as to whether it was just and equitable to grant an order of eviction (paras. 33–47).

Notably, all relevant circumstances had to be considered in deciding whether it would be just and equitable to grant an eviction order. With reference to case law decided under ESTA and highlighting that the same considerations could be considered here as well, within the context of PIE, the CC underlined that the wishes or personal preference of unlawful occupiers were not relevant (para. 36).

Next, the CC dealt with the burden of providing alternative accommodation:

Who then bears the obligation to provide alternative accommodation? Section 4(7) of PIE clearly states that such obligation lies with a ‘municipality, or other organ of state or another landowner’. PIE was enacted to prevent arbitrary deprivation of property and is not designed to allow for the expropriation of land from a private landowner from whose property the eviction is being sought [emphasis added].

(para. 37)

Regarding competing interests of parties, due regard must be had to the considerations of justice and equity, by striking a balance between the various rights (para. 39), a process that required ‘some give by both parties’ (para. 40). Over time, Mr Grobler made various offers to Mrs Phillips, including reasonable accommodation in a retirement centre for a period of twelve months provided that costs were limited to R4,000 per month; relocation costs; an upmarket apartment in a secure complex where Mrs Phillips could live for the rest of her life; and a choice from a list of properties in the vicinity constituting a two-bedroom dwelling in a good condition where she would have a lifetime right of residence (paras. 41–43).

Given all of the above, the CC concluded that the SCA had failed to balance the rights of both parties. Whereas Mr Grobler had been struggling to enforce his ownership for fourteen years, since he bought the property, Mrs Phillips would continue to enjoy a decent home:

Furthermore, the Supreme Court of Appeal placed too much emphasis on Mrs Phillips’ peculiar circumstances. A just and equitable order should not be translated to mean that only the rights of the unlawful occupier are given consideration and that those of the property owner should be ignored. And it does not mean that the wishes or personal preferences of an unlawful occupier are of any relevance in this enquiry.

(para. 44)

Given all of the above factors and considerations, including that Mrs Phillips would not be rendered homeless as the offer of Mr Grobler still stood, the appeal was upheld and the eviction order granted.

Nimble Investments v Malan

After having resided on the farm in question since 1974, Mrs Malan received permission to continue occupying cottage 1 on the farm after her husband died in 2005. A previous attempt in 2006 to evict Mrs Malan was resolved when a lease agreement was concluded with respect to cottage 1. After the appellant bought the farm in 2008, negotiations relating to the evacuation of cottage 1, due to rezoning for purposes of establishing an Agri-Park and the extension of the highway came to naught. Renewed negotiations in 2016 resulted in the respondent agreeing to relocate to cottage 5. On the day of the relocation, members of the household started removing roof tiles, roof sheets and trusses from cottage 1, despite being ordered to stop by the farm manager in the presence of police. An unlawful structure, built from building materials taken from cottage 1, was constructed alongside cottage 5. Throughout this process, Mrs Malan reacted vehemently. When a letter insisting that the illegal structure be dismantled and the building material returned was ignored, respondents received notices to vacate cottage 5 as their occupation had been terminated on the basis of the respondent’s misconduct, which constituted a fundamental breach. At that time the respondent was sixty-eight years old. The Land Claims Court (LCC) set aside the eviction application during the automatic review process.¹⁵

In the SCA, the minority judgment was handed down per Carelse AJA, with Mbatha JA concurring and the majority judgment per Schippers JA, with Dambuza JA and Eksteen AJA concurring. Carelse AJA was satisfied that Mrs Malan met the requirements for long-term occupation. Two further issues were also dealt with:

1. (a) whether the termination of the right of residence was just and equitable; and

2. (b) if the termination was just and equitable, whether the eviction would be just and equitable.

(para. 12)

The court reiterated the well-established two-phased approach, underlining that the right of residence had to be terminated before the eviction notice could be issued. Before the termination of the right of residence, there were no discussions between the appellant and the respondents, and the respondents were not legally represented (para. 18). The respondents should have been granted an effective opportunity to make representations before their right of residence was to be terminated (para. 22). Accordingly, the minority judgment found it unnecessary to consider whether there was a fundamental breach of trust (para. 23).

The majority judgment highlighted some of the correspondence that occurred, inter alia a notice to Mrs Malan that her right of residence had been terminated on specific grounds, namely:

1. (a) the unlawful removal of the building materials that constituted a material breach of the relationship; and

2. (b) a further breach when the unauthorised and unlawful structure, to accommodate further members of her family who had not lived with her previously, was erected.

(para. 37)

Failure to demolish the structure would lead to eviction proceedings. When the eviction proceedings commenced, the founding papers set out that the termination of Mrs Malan’s right of residence was just and equitable on three alternative grounds:

1. (a) failure to pay rent;

2. (b) if she was an occupier under section 8(5) of ESTA the termination was justified under section 10(1); and

3. (c) if she was an occupier contemplated under section 8(4), termination was warranted under section 10(1)(a), (b) or (c) of ESTA.

(para. 39)

Mrs Malan opposed the eviction application, with legal representation, on the grounds that (a) she was a long-term occupier and (b) on a special plea in terms of section 8(5), namely that her right of residence could be terminated only on twelve calendar months’ written notice to leave the farm (para. 40).

The first question canvassed was whether there was a breach, which could not be remedied, as contemplated in ESTA (para. 46). This was relevant as it ultimately impacted on whether an eviction order would be just and equitable. Considering all relevant factors, including the history of the relationship of the parties, the seriousness of the occupier’s conduct and its effect on the parties and the present attitude of the parties to the relationship, as shown by the evidence (para. 47), the court concluded that it was not practically possible to restore the relationship between Mrs Malan and the appellant (para. 53). The SCA consequently found that the LCC had erred in finding that there was no fundamental breach in the relationship (para. 60).

The issue of whether the eviction order was just and equitable centred on the specific facts (para. 61). Notably, the legislature specifically provided for eviction on the grounds of a fundamental breach (para. 63). The court considered the conduct of both the appellant and the respondent, highlighting that the appellant offered to assist the respondent financially to relocate to serviced plots in the area, that the appellant upgraded cottage 5 with Mrs Malan’s approval, that it was only Mrs Malan who qualified as a long-term occupier under section 8(4) (paras. 63–65), and that the other respondents had been occupying property rent-free for many years despite the fact that they were employed elsewhere and received an income (para. 66). The court found that the LCC had failed to consider the evidence of the appellant’s interests in not permitting unlawful conduct, the erection of the illegal structure on the farm and the continued unlawful occupation thereof (para. 67).

Whether the eviction order was just and equitable also entailed the court considering why cottage 5 became prominent in the first place: the appellant was compelled to use that particular portion of the land where cottage 1 was located because of the widening of the road and in order to secure a long-term tenant necessary for its business.

The court was satisfied that no purpose would be served to remit the matter to the magistrate, also having regard to the delay of five years. The appeal thus succeeded, and the eviction order was reinstated.

Reflection

Background

For centuries private individual title – ownership – has enjoyed a prominent position (see Shoemaker, 2021: 1698; Winchester, 2021). Winchester shows very clearly how the centrality of ownership, over centuries, has shaped the modern world: it has dominated approaches to settlement and invasion, demarcation, survey, deeds and registries and the science of mapping, ultimately impacting on all dimensions of daily life: influencing religion, belief, sovereignty, citizenship, franchise, war and peace (Winchester, 2021). Whereas private, individual title unlocked a magnitude of benefits and privileges, common or co-ownership, although still ownership, was just not on a par – as noted by Hardin to constitute the ‘tragedy of the commons’: ‘Common ownership remorselessly generates tragedy’ (Hardin, 1968: 1243). Furthermore, it was the ownership of land in particular that was sought after as ‘a necessity of all human existence, which is the original source of all wealth, which is strictly limited in extent, which is fixed in geographical position – land … differs from all other forms of property in these primary and fundamental conditions’ (Churchill quoted by Winchester, 2021: 180).

This also resonates with the South African concept of ownership, of private, individual title. Van der Walt highlights that, within the traditional notion of property, especially pre-Constitution, property rights are defined in terms of a hierarchy based on a binary position (Van der Walt, 2012: 114). Accordingly, having a property right entitles the holder to a remedy that will trump the interest of those who have no property rights or who have weaker rights. In the same vein, having a strong property right (like ownership) gives a remedy that will trump weaker property rights (like limited real rights) of others, just as even a weak property right (like a limited real right) gives a remedy that will trump the holders of non-property rights (like personal rights) (Van der Walt, 2012: 115). Overall, landowners were further expected and entitled to be in undisturbed and exclusive possession of the land, resulting in any interferences – particularly in the form of unlawful occupation of land – to be dealt with harshly and swiftly, in accordance with the ‘normality assumption’ (Van der Walt, 2012: 56–59). In this regard, common-law property law has prevailed as a rule and, in the process, failed to respond adequately to the needs of persons who do not hold ownership rights over land (Wilson, 2021: 43).

All of that stood to change in a new constitutional dispensation. While protective measures were most certainly embodied in section 25, authorised, focused and considered interferences were specifically provided for, and particular duties were placed on the state in this regard: to interrogate and to question the then-existing paradigm (Pienaar, 2014: 820–22; Wilson, 2021: 57). Molusi v Voges underscored that common-law property rules were not relevant within the current eviction paradigm, given the transformative thrust of the property clause post-1994. That is the case specifically where ESTA and PIE are concerned. While both legislative measures were promulgated for particular reasons, providing procedural and substantive protective measures for inherently vulnerable occupiers, each has specific scopes and application: ESTA applies in rural areas, essentially on farmland, and specifically excludes townships, whereas PIE applies nationwide, encapsulating all land in South Africa when unlawful occupation takes place. Thus, depending on the specific location of the land, particular legislative measures would apply, whereas, conversely, others are excluded in principle. Therefore, although a new eviction paradigm emerged, and although land reform legislation would essentially embody the property clause’s transformative thrust, the legislation itself had limits, specifically regarding scope and application.

The Case of Mrs Phillips

Township expansion and urban development meant that ESTA, the protective measure specifically promulgated to protect vulnerable persons generally, but specifically after the age of sixty and who had been in occupation of land for more than a decade, was not available to Mrs Phillips.

A previous landowner endeavoured to assist Mrs Philips in providing some form of occupation for her lifetime. While the intention was clear, the arrangement was not formalised. The doctrinal approach to limited real rights and their enforcement against all third parties, including successors in title, meant that an oral arrangement embodied personal rights only in the absence of registration. Common law South African property law rules and principles underscore ownership as the core right, encapsulating a variety of entitlements, including the right to use and enjoy and the right to possess (Muller, 2019: 44–46; Muller et al., 2019: 103–108, 244–54; Pope & Du Plessis, 2020: 51–58, 94–99; Horn et al., 2021: 27–50). While an owner could let go of one or more of such entitlements, thereby subtracting from the dominium, the implications thereof were likewise doctrinally determined. Granting a right to live in a house to someone, for a lifetime, would result in a limited real right for that particular individual, enforceable inter partes. However, for successors in title to be bound by this arrangement, the subtraction from dominium would have to be formalised, recorded and publicised for the world to take note of (Muller et al., 2019: 244–54).

If ESTA did apply, Mrs Philips would have been a section 8(4) long-term occupier with concomitant protective measures. She would ultimately only be evicted in extraordinary circumstances. Under PIE, the Act that was applicable here, Mrs Philips would have had a valid defence if she was not an unlawful occupier – that is, if she had consent or another right in law to occupy. As highlighted above, she had neither: consent was specifically revoked by the new landowner and her life right, while relied on for many years, was not formalised and thus not enforceable against the current landowner. Had the life right indeed been registered, the normal common-law property law rules would have prevented this case going forward on an eviction basis. As previous case law has underlined¹⁶ (Boggenpoel & Pienaar, 2017: 321–32), a habitatio would then prevail, even and including against the landowner. Presently she was thus in unlawful occupation and stood to be evicted under PIE.

Yet in the SCA judgment Mrs Phillips, as unlawful occupier, was enabled to remain in occupation. Her informal right to occupy was balanced and weighed against the registered right of land ownership and has prevailed. It prevailed because of Mrs Phillips’ particular personal and socio-economic circumstances, coupled with the particular historical background of the relevant parcel of land. Such a scenario would have been unthinkable pre-Constitution.

But Mrs Phillips’ relief was short-lived as the CC upheld the appeal and confirmed the eviction order. That conclusion was reached by essentially highlighting the availability of alternative accommodation and approaching the investigation (and balancing act) from the landowner’s perspective. In this regard, paragraph 37 of the CC judgment, quoted earlier, employed by the CC in relation to the duty to provide suitable alternative accommodation, is especially interesting. Two aspects in particular are striking: Firstly, declaring that section 4(7) of PIE ‘clearly states that such obligation lies with a municipality, or other organ of state or another landowner’ is technically incorrect. Ironically, the CC quotes the whole of section 7(4) earlier in the judgment, in paragraph 28, reproduced here in full:

If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an eviction if it is just and equitable to do so, after considering all the relevant circumstances, including, except whether the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of an unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.

[emphasis added]

Accordingly, whether suitable, alternative land had been made available, by the persons or bodies mentioned, is one of the factors that could be considered in deciding whether the granting of an eviction order would be just and equitable in the relevant circumstances. Notably, the rest of the section also specifically lists the following factors to be taken into account: the rights and needs of the elderly, children, disabled persons and households headed by women.

Interpreting the specific part of section 4(7) of PIE as only indicating where the duty to provide alternative accommodation lies seems misplaced and specifically ignoring the second part of the section – particularly of relevance to the current facts – is problematic.

Secondly, stating that PIE was promulgated to protect private land ownership against arbitrary deprivation as a starting point is again misplaced. There is a huge body of law dealing specifically with the reasons for and motivations behind promulgating PIE (Pienaar, 2014: 820–22; Muller et al., 2019: 751–63; Muller & Viljoen, 2021: 287–96). PIE was clearly promulgated for various reasons, including regulating unlawful occupation of land in a fair and humane manner.

The CC focused on the balancing of rights and considering all relevant facts and circumstances and in this process highlighted the various generous offers of accommodation made by Mr Grobler to Mrs Phillips. Mr Grobler is fortunate that he was able to do so – a generous litigant, who owned a variety of properties in single, private title. The CC underlined that Mrs Phillips could not choose where she wanted to live and that her wishes were irrelevant. Ironically, Mrs Phillips never really had a free choice of home and will again not have a free choice in where she is to be settled; and she is not and never will be a homeowner.

The crux here is the new eviction paradigm that emerged post-Constitution, which extends beyond formal, official, property law-endorsed rights and interests. The standard of what is just and equitable enables a court’s active participation in weighing and balancing rights. Yet, despite the new paradigm, the balancing act is still approached from the perspective of the landowner and how other rights could possibly weigh up to those of a landowner. In this balancing act, Mrs Phillips’ wishes are irrelevant. Approached in this way, non-ownership rights remain subject to landowners’ rights. This methodology is endorsed further when an investigation is approached from the departure that the relevant Act, PIE, exists to protect landowners’ rights.

The Case of Mrs Malan

Notably, Mrs Malan and Mrs Phillips were both elderly, vulnerable widows with extensive periods of occupation – respectively, just under fifty and seventy years. Insecure tenure prevails when the relationship between a landowner and tenant becomes strained and eventually unsustainable. In these instances, the breakdown of the relationship results in the loss of a home as well. That remains the case so long as tenants, especially vulnerable persons, depend on someone else to provide housing and shelter. In that regard, it is imperative for the relationship to be sustained on a basis of mutual respect and understanding – with both parties having reciprocal duties and obligations.

Essentially, both judgments have shown that whether a particular right or which specific right – be it ownership or an informal right – prevails is determined by the particular facts and circumstances on the one hand and the balancing or weighing exercise on the other. While the outcome of an eviction application may thus remain somewhat unpredictable and case-specific, because of the particular circumstances, the CC judgment has endorsed an approach that, in principle, continues to subject non-ownership rights to landowners’ rights.

Ironically, as in the Philips case, the specific legislative measure enacted to assist persons like Mrs Malan did not assist in this particular case. While farm workers routinely enter into lease agreements, problems prevail in that employment remains linked to accommodation. Accordingly, where difficulties are encountered in either of these dimensions, tenure insecurity invariably ensues. Under these circumstances, ‘just and equitable’ meant that considerations of the public interest in the broadening of a national road and private, commercial interests – by supporting a long-term business lease agreement, outweighed Mrs Malan’s occupational rights, particularly when her personal conduct was also taken into account. Despite the latter, for Mrs Malan the crux of the matter remained her relationship with the landowner, which placed an additional burden on the linkage of employment and accommodation.

Transformative Thrust?

Property law bears a lot of responsibility. At its core, property is society’s system for distributing valuable resources. Through property law, we decide who gets what and how our relationships around resources are defined and managed.

(Shoemaker, 2021: 1695–756)

Property law has both constructive powers – in making choices and awarding and distributing rights – and destructive powers – by preventing, limiting, manipulating and taking away. Property law is also inherently linked to power relations. In the South African context, the destructive power of property law was harnessed specifically for purposes of racial domination and the corresponding utilisation of resources. Ownership, and what it entailed with respect to land and immovable property, was restricted to the minority of South Africans, with the majority largely lacking ownership, on the periphery.

Notably, for purposes of the overarching racially based land control system, the precise concept of ownership was further adjusted. In this regard, certain entitlements were highlighted, such as the general point of departure that a landowner should be in exclusive and uninterrupted possession of property, which rights operated in a high-handed fashion in relation to all other ‘lesser rights’, constituting anything less than ownership. Ironically, given the goal of racial separateness, landowners could not consent to the occupation of land in contravention of the Prevention of Illegal Squatting Act 52 of 1951 (see Pienaar, 2011: 317–38),¹⁷ thereby further curtailing the specific content and entitlements of landowners – all in pursuit of the overarching goal of racial engineering. Accordingly, within the South African context, the specific concept, content and form of private ownership embodied a uniquely South African-created concept. It is the manipulation and employment of this concept that is embodied in the ‘rights and wrongs of property law’. It is also this specific concept and system as a whole that had to be dismantled and reconfigured post-1994 in light of the property clause.

In principle, various avenues were possible:

• dismantling the concept of common-law ownership altogether and providing a brand-new concept in its place;

• keeping the concept basically unchanged, preserving its essential traits and characteristics;

• or finding a midway: retaining some of the essential characteristics and traits of private ownership but ensuring some inroads into its content and effect.

It would seem as if the last option was followed in South Africa by employing two mechanisms specifically:

1. (a) promulgating legislation that specifically encroaches on and invades the core of private ownership; and

2. (b) enabling courts to approach and interpret extant law in new, innovative ways and/or to interpret and apply legislative measures – both pre- and post-Constitution – purposively aligned with the Constitution, thus underscoring the transformative thrust.

Regarding the first mechanism, promulgating legislation, the advantages of relying on particular provisions are often also tied to their own limitations. Whereas boundaries may be extended and protective measures enhanced by way of purposive interpretation, the limitations inherent in legislation remain relevant. That is the case where a specific measure only applies in particular instances or only in relation to specific jurisdictional facts, such as the location of the land and property in question. Whereas the protective measures operate generally, it would not cover all land and certain exclusions would result. Therefore, even if the transformative thrust of the property clause is embodied in land reform-related legislation, like ESTA, inevitably not all persons would be assisted by legislation.

For Mrs Phillips, it was precisely new legislation, PIE, embodying a new standard of ‘just and equitable’ that led to her result, though not the legislative measure that was promulgated and intended to benefit her in the first place. With reference to Wilson’s categorisation of ‘outsiders’ and ‘insiders’ (Wilson, 2021: 6) and Van der Walt’s reference to ‘property in the margins’ (Van der Walt, 2009: 230), Mrs Phillips became an insider for an interim period only, after the SCA judgment was handed down. When the CC confirmed the eviction order, Mrs Phillips, as an elderly woman living with a disabled son in the only home she had known for most of her life, pursuant of a promise made to her by previous landowners, became an outsider again, living on the margins.

In principle, transformative potential is not limited to legislation. It remains for courts and presiding officials to garner the potential of extant law, searching specifically for gaps or spaces where boundaries can be shifted and protective measures extended (Wilson, 2021: 10).¹⁸

To date (Coggin, 2021: 1–37),¹⁹ the focus has mainly been on the balancing or negotiation of rights, often within the ‘just and equitable’ context or in the balancing of competing constitutional rights.²⁰ As illustrated above, the result is essentially context- and fact-specific, meaning that the transformative thrust, when encountered, is often sporadic, unpredictable and limited. While this approach may have, incrementally, over time, benefited some persons, depending on the actual circumstances, the question is whether this is enough. Is this what the transformative thrust of the property clause and the Bill of Rights envisioned? The balancing and/or renegotiating of rights depend on countervailing rights to be adjudicated on or unpacked, usually in a court of law. In this regard, the playing field is somewhat limited. Furthermore, by focusing on the balancing of rights, the concept of property and what it entails within a transformative framework – specifically transforming the property system and prevailing power relations, access to and utilisation of resources, specifically land – has largely fallen by the wayside. Notwithstanding endorsing ‘one system of law’ (Pharmaceutical Manufacturers, para. 44; Van der Walt, 2012: 20),²¹ actually locating non-traditional ownership and non-property rights within the single system of law has remained challenging, for various reasons. First, despite endeavouring to promote a spectrum of rights, courts still approach ownership as the core right, as the point of departure, with all other rights either flowing from or competing with private individual title and where non-ownership rights do prevail, it is seen as an exception, and often only temporary. Secondly, existing recording and formalisation mechanisms remain largely aligned with deeds and registries systems built on formal private, individual title foundations (Pienaar, 2021: 215–44, 235–36). Thirdly, existing conceptions of property and property law continue to influence and inhibit broader societal values from being considered in relation to the utilisation of property and resources (Shandu & Clark, 2021: 39–77). In this regard, economic, commercial and financial considerations routinely overshadow social or basic-needs concerns. Shandu and Clark explain the preference for property rights within an economic paradigm on the basis that they can be measured, are attributed an economic or financial value and are traded in terms of existing markets (Shandu & Clark, 2021: 46). It is in this light that Shandu and Clark instead argue for a values-based approach to property relations in South Africa (Shandu & Clark, 2021: 39–77). With reference to a handful of property theories, including property as a ‘web of interconnected rights’ (highlighting environmental and sustainability considerations) (Shandu & Clark, 2021: 52–53), property as a continuum of land rights (highlighting recognition of the realities under which people live) (Shandu & Clark, 2021: 53) and property as personhood-theory (highlighting identity, personal connection and flourishing) (Shandu & Clark, 2021: 53–56), the authors argue that, viewed together, these approaches advance a singular idea:

The current constructions of property are limited due to property’s overemphasis on a single set of values – values that are largely economic, exclusionary and exploitive. Each of the theories aims to realise a more social conception of property law by requiring for current property systems to be radically reconstructed to make room for a more varied set of values, including social, ecological, emotional, and needs-based values. In short, these theories advocate that property should serve a social function.

(Shandu & Clark, 2021: 57)

The point of departure is thus: not only are property rights limited externally by way of state regulation (tested against the Bill of Rights) but also limited internally (for example, neighbour law) and, more importantly, also by their social function. Ultimately, the authors argue, without unpacking a specific methodology, that the principles underlying the property law system ought to shift and align with the reality of South Africa’s historical and constitutional context (Shandu & Clark, 2021: 60).

Such an endeavour would be difficult, but not impossible, under the current unamended property clause (Parliament of the Republic of South Africa, 2021). Constitutional endorsement is found in section 25(5) and (6), requiring reasonable legislative and other steps to broaden access to land and improve tenure security, respectively, and in section 25(8), where the reform of all natural resources is provided for. In this regard, two overarching projects are suggested: a land reform legal framework project on the one hand and a reconceptualisation of property law project on the other. Arguably, each would require particular tools and mechanisms and pursue specific objectives. One is not more important than the other. Both are ultimately aimed at a reconceptualised property law system and the protection of wider social (and environmental) interests. Concerning the former, the groundwork had already been laid, to some extent, by way of, for example, the 2019 final Land Panel Report from the Presidential Advisory Panel of Land Reform and Agriculture (PAPLRA, 2019). It is suggested that these recommendations be updated and scrutinised with the transformative thrust objective in mind, as the Report was essentially focused on the amendment of the property clause to enable expropriation with nil compensation. Such reconsideration will impact inter alia on policy, legislation and departmental directives. This could include addressing gaps in land reform legislation dealing with vulnerable occupiers and promulgating mechanisms to de-link employment and accommodation. Proposals in the Report linked to the Land Records Bill (see Kingwell, 2017: 44–93; PAPLRA, 2019), which enables a broad spectrum of land rights, need further urgent attention. The reconceptualisation of the South African property system would need dedicated effort and focus especially from academics, practitioners and the bench. Some of the groundwork has already been done by scholars in terms of various property theories and approaches that endorse a broader spectrum of the values-based system (Van der Walt, 1997, 2009, 2012; Shandu & Clark, 2021: 39–77; Wilson, 2021). Inevitably, such reconceptualisation would also impact on how property law courses are structured and presented at tertiary education and training institutions. The substantive reconceptualisation of property rules and principles and the land reform legal framework must form a holistic, realigned whole – in general, but especially regarding recognition, enforcement and recording of all relevant rights. Thus actually embodying the transformative thrust of the property clause in a single system of law.

Conclusion

Property law is bolstered by opportunity and potential and burdened by responsibility. In this light, Van der Walt’s earlier work remains pertinent and relevant. By highlighting the fundamental purpose of the property clause, he underlines that existing rights and entitlements can be changed, restricted and subjected to new or stricter controls and limitations. There is further no reason ‘why property interests not recognised or protected by private law could be acknowledged and protected by the property clause’ (Van der Walt, 2012: 122). The fundamental purpose of the property clause determines whether an entitlement would enjoy protection. This purpose requires a ‘just and equitable balance between existing, private property interests and the public interest in the transformation of the current property regime’ (Van der Walt, 1997: 8). Achieving this balance embodies two components: purposively scrutinising (reading, understanding, interpreting) and applying the property clause ‘with due regard for the tensions between the individual and society, between the privileged and the underprivileged, between the haves and the have-nots, between the powerful and the powerless’; and, secondly, doing so in a way that is ‘not influenced unwittingly’ by ‘unsuitable, private-law presuppositions’ (Van der Walt, 1997: 13).

While the tale of two women was relayed here, the issue extends beyond Mrs Phillips and Mrs Malan. Ultimately at stake – in the public interest – is a transformed property system, where extant hierarchical and binary approaches to property rights are reconceptualised and reconfigured in light of South Africa’s colonial and apartheid legacy. Only then can human dignity, equality and freedom become a lived reality for all.

5 ‘Setting Our Transformation Sights Too Low’ Land Reform, ‘Expropriation Without Compensation’ and ‘State Custodianship of Land’

Danie Brand

Introduction

Two things are striking about the framework of the political debate over the ‘land question’ that arose from Parliament’s 2018 adoption of an Economic Freedom Fighters (EFF)-introduced motion on land. The first is how, in this debate, the land question was framed as a story only, or at least most importantly, of historical dispossession and the dire need for restoration – how it was exclusively driven by what Cherryl Walker (2008: 11–20) has described as a ‘master narrative of loss and restoration’. The second is the debate’s stubborn focus on one legal issue alone as a solution to the land question thus framed: the power of the state to take land without having to pay compensation for it. In concrete terms, this became the question of whether section 25 of the Constitution of the Republic of South Africa, 1996 (Constitution) should be amended to allow for ‘expropriation without compensation’ or ‘state custodianship of land’.

Both these features of the debate have faced sustained criticism from scholarly and policy development circles. For the first, the criticism remains what Walker raised in 2008 when she identified the ‘master narrative’ as emblematic of the land question. At the time, Walker argued that, although on its own terms the master narrative is undoubtedly and importantly true, it is ‘too simple’, ‘it does not tell the full story, or enough of the story, to sustain a satisfactory resolution of the plotline it sets up’ (Walker, 2008: 16). This is so in three ways. First, it loses sight of a range of problems in landholding that have nothing to do with actual loss and an actual claim for restoration. These are problems such as securing existing landholding for those many who have access to land but do not enjoy the protection of the law (security of tenure), and enabling access to land for those who have never had it and so could never – at least not in a particular sense – lose it (redistribution) (Walker, 2008: 16). Second, it fails to account for what happened in the forty-odd years that have passed from the last actual dispossessions until restoration became possible in the early 1990s (Walker, 2008: 16). Thirdly, it fails to depict and deal with the loss and restoration as part of a much broader story of social change – to relate its project of reversal and restitution to ‘other programmes of social development’ and to ‘mesh its own priorities with other constitutional commitments to justice, socio-economic development and equality’ (Walker, 2008: 17). That is, it remains locked in a model of restitutory justice, eschewing a broader redistributive or, indeed, transformative notion of justice (Du Plessis, Chapter 3, this volume; Nocella, 2011: 4).

The most cogent response to the second of these features has been that an exclusive or primary focus on the state’s power to take land without compensation as the mechanism to address the injustice of current landholding in South Africa and the need to amend the Constitution to create such a power, is simply misplaced.

This is so because whether through deprivation (s. 25(1) of the Constitution – always) or through expropriation (s. 25(2) – under exceptional circumstances), the state has, since the enactment of the Constitution, always had the power to take land without paying any actual compensation. To the extent that the state has since 1996 not taken land without paying compensation¹ it is, in other words, not section 25 of the Constitution that stands in its way. Indeed, section 25 of the Constitution, in the security of tenure and restitution-related provisions of section 25(5)–(8), gives the state far broader powers than only to take without paying in order to bring justice into our relationship with land (Ngcukaitobi, 2021: 206–207).

This is also because our failure to effect justice in landholding so far has little to do with the unavailability of land or the state’s inability to acquire land. Instead, it can far more clearly be attributed to acute under-funding; administrative incapacity and, in some cases, maladministration and corruption; and a lack of clear justice-related policy direction and political will (Ngcukaitobi, 2021: 206, 212–13).

I agree in broad terms with these critiques of the framing of the land debate. However, my concern here is not with its technical, doctrinal or policy problems. Instead, I am interested in how this framing relates to our basic understanding and intuitions about how we relate to land in legal terms – the ‘codes’ that determine what we think and do about our relationship with land and our relationships with one another concerning land (Van der Walt, 2001: 261–62). Does the current framing of the debate, which is so often presented as radical and incisive, indeed break with apartheid/colonial land law? That is, is this framing truly transformative?

I suggest it does not and is not. To frame the land question only as a past of dispossession and a present need for restoration, which will be achieved through giving the state sufficient power to take land from some in order to give it to or place it at the disposal of others, fails to break with – still moves within and so, in fact, confirms and validates – apartheid land law’s basic understanding of land law as determined by an absolute, and absolutely exclusive, notion of ownership. That is, it fails to break with what was apartheid land law’s central and most debilitating ‘code’: the idea that someone or something always, in the final instance, holds absolute, exclusive power over land.

What Was Wrong with Apartheid-Era Property Law?

Several property theorists have engaged the question of what enabled the common law of property to become so easily co-opted and infiltrated by apartheid’s racially exclusive social engineering project and what enables that same common law of property to resist post-apartheid efforts at transforming our relationships to land and with one another, relative to land. The touchstone remains the late André van der Walt. Van der Walt identified and described three features of apartheid property law that enabled its unjust outcomes. The first was a narrow understanding of the objects of property as – with only a few exceptions – corporeal ‘things’. The second was an equally narrow understanding of property rights as a closed and hierarchical list of rights, with ownership at the apex, followed by a small number of lesser ‘real’ rights. The third was an a-contextual, syllogistic understanding of the relationship between these rights and remedies, in terms of which an exclusivist remedy that could be exercised against everyone else (within its scope) followed simply and only from the fact of having the right (Van der Walt, 2012: 113–16).

What concerned Van der Walt about this understanding of property law was that it enabled a holder of one of the ‘real’ rights in the closed list of property rights, within the scope of that right, to exercise absolute, exclusive control over the ‘thing’ against everyone else, regardless of context, other individual interests, broader public goals and concerns of fairness and justice (Van der Walt, 2012: 114). Ownership, as the apex property right, enabled this absolute, a-contextual control against everyone and everything else, including the holders of lesser ‘real’ rights. Van der Walt’s critique of the absolute, exclusivist and a-contextual nature of ownership in South African property law was, of course, focused on notions of private ownership in the context of the common law. Nonetheless, he points out that it was mirrored in apartheid’s statutory land law by the absolute control it afforded the apartheid state over the lives of black South Africans in their relationship with land. Indeed, he argues that this basic code of the common law of property as establishing zones of absolute and exclusive control enabled apartheid’s social engineering project concerning land and its own absolutely exclusivist spatial imagination (Van der Walt, 2001: 266–67).

What bothers me most about this absolutist, exclusive, abstract notion of property that enables the exercise by private property owners of absolute, exclusive control over land is how peculiarly unsuited it probably is to any society, but especially to ours. After all, land in our context is so inevitably subject to a range of overlapping, entangled interests and concerns, most of which are not recognised as legal rights. In addition, we are engaged in an ambitious and overarching collective programme of redress of severe past injustice and transformation towards a more just society – the public good is inevitably an overriding concern in our relationship to land.

The first element of this concern – that an absolute notion of private ownership (and its flipside, absolute notions of state control over land) is unsuited to our reality of land being subject to different overlapping, intertwined, even enfolded interests and concerns – most obviously appears in the context of the reality of communal land ownership. As Tembeka Ngcukaitobi points out:

The nature of private title for property is fundamentally inconsistent with communal ownership. More than twenty million South Africans live in communal settings. Although colonialism introduced individual title, it was never provided to everyone, particularly Africans. The key distinction with individual freehold title is its exclusionary nature, while on the communal side, the main feature is the coextensive nature of rights. Reforms directed at extending private title to communal settings are self-defeating, as the two are fundamentally incompatible.

(Ngcukaitobi, 2021: 150)

But the problem goes far wider than that, encompassing many other aspects of what Ngcukaitobi calls the ‘mystery of tenure’ (Ngcukaitobi, 2021: 137). These include:

• how properly and substantively to take account of the varied interests of so-called unlawful occupiers in the context of eviction proceedings and, indeed, what legal form to give to the remaining on land of people against whom an application for eviction has failed (Mhlanga, 2022);

• how to think in law about the long-standing historical use of land in private ownership for community purposes;

• how to think transformatively about different forms of land use, such as in the context of mining, and their coexistence; and, perhaps most intractably,

• how to take legal account of the overlapping of different epistemologies and even ontologies over land.

Stuart Wilson has recently focused on the second element of this concern, that apartheid’s absolutist conception of ownership is inimical to both our programme of redress and our transformational agenda:

We live in the grip of a pervasive ‘ownership model’ of property. This model posits property as tangible goods or incorporeal rights over which individuals or corporations have exclusive control. The world is carved up into domains of ownership – exclusive control of a right or object, and freedom to do with it as one wishes … Redistributive claims, concerns about inequality, poverty and social needs have always been located outside property law.

(Wilson, 2021: 10–11)

In sum, as Froneman J remarked in his separate concurring judgment in Daniels v Scribante,² in a poignant tribute to Van der Walt’s body of work, apartheid’s ‘absolutisation of ownership’ not only ‘confirmed and perpetuated the existing inequalities in personal, social, economic and political freedom’ (para. 136), frustrating ‘the rectification of historical injustice’. It also stands in the way of realising in the context of land that ‘the values of the Constitution are not aimed solely at the past and present, but also the future’; of the transformation, that is, of our relationships to land and to one another concerning land (para. 137).

Against this background, it seems clear – and the consensus is (Van der Walt, 2012: 30, 128; Ngcukaitobi, 2021: 150–51; Wilson, 2021: 10–11) – that in transforming our property and land law to suit the demands for land justice in South Africa, the focus should be on addressing in some way this notion of absolute and exclusive control. How can we go about that?

What Must Be Done to Fix That?

In his 2012 book Property and Constitution, André van der Walt sets out his vision of a transforming/transformed property law for South Africa. It is a vision of a property law that has moved away from the traditional view of property law as a hierarchised system of rights, syllogistically related to remedies that the right holder can exercise against others in an exclusionary fashion. It is a property law that is instead becoming a system of regulation of overlapping or potentially clashing interests or rights in property, through negotiation or mediation of the overlap or conflict, in a manner that advances constitutional (public) goals. This transforming property law shows three main characteristics. First, it is marked by a shift from a focus on the objects of property law or rights (‘things’) to a focus on objectives:

[T]he primary purpose of the Constitution is not to further entrench or underwrite existing private law protection of extant property holdings by adding another, stronger layer of constitutional protection, but to legitimise and authorise state regulation that would promote constitutional goals or objectives with regard to the overall system of property holdings, proscribe action that would have certain unwanted systemic effects and bring existing law into line with the promotion of these constitutional goals.

(Van der Walt, 2012: 141)

The goals Van der Walt has in mind ‘include providing restitution of apartheid land dispossessions, ensuring the long-term sustainability of development and the use of natural resources, promoting equitable access to land and housing, and improving security of land holding and housing interests’ (Van der Walt, 2012: 141).

The second characteristic is a move from ‘property to propriety’:

[A] constitutional notion of property exceeds the narrow private law focus on individual property rights and extends to interests in property that are not traditionally recognised or protected in private law, as well as attention for the limits and the effects of rights, considered in a contextual setting, rather than just the rights themselves considered abstractly.

(Van der Walt, 2012: 147)

In other words, there is a move towards recognising from among the many different interests that may apply to property in each case all those that warrant protection in light of constitutional goals (the systemic goals of property law), in addition to the traditionally recognised closed list of property rights – an opening up of the canon of rights to property.

The third characteristic is a shift in the way in which property law is developed and applied, and property law disputes resolved, away from syllogistic and towards transformative logic and reasoning. Van der Walt advocates here a move away from the conclusory reasoning traditionally applied in property disputes. There, the focus is on determining the presence or absence of recognised property rights in a dispute and then, once those have been identified, simply mechanically applying the remedies associated with them against and to the exclusion of any other interest. The move is instead towards an approach to resolving property disputes where the focus is on mediating between all the different interests that apply, in light of both the specific context of the dispute and the historical context of property in South Africa and in a manner that best accords with the systemic public goals of property law (Van der Walt, 2012: 151).

This vision of property law is interesting and attractive to me because it amounts to a ‘democratisation’ of property – a dispersal or diffusion of the absolute power that ownership under apartheid property law afforded over land. This is because, first, it amounts to, if not quite a de-privatisation of property law, then the development of a ‘post-private’ property law, in the same sense as Karl Klare described the South African Constitution as post-liberal: ‘embrac[ing] a vision of collective self-determination parallel to (not in place of) … [a] strong vision of individual self-determination’ (Klare, 1998: 153). While not leaving behind the purpose of property law to protect individual rights and interests, it emphasises the public aspects and implications of property and the fact that individual interests should be given effect in a manner that advances public goals. As Van der Walt puts it: ‘The Constitution requires a shift from the traditional focus on individual rights in discrete objects to a relational or contextual focus on the features or qualities of the overall property holding system and the position of and relationships between individual rights holders in that system’ (Van der Walt, 2012: 154).

Ownership is relativised in relation to or contextualised within collective and public concerns. This notion of a ‘post-private’ property law is echoed in more recent work. Ngcukaitobi, for example, criticising the effect of our land reform programme’s fixation on an absolute and exclusionary notion of private ownership on security of tenure, proposes that ‘we should reconsider the exclusive and absolute nature of private title so that the exercise of rights over land is subject to a general public-interest override, provided that such an override is itself constrained by procedural fairness’ (Ngcukaitobi, 2021: 150–51).

It also resonates with the burgeoning literature on ‘sharing’ in property law, in terms of which the absolute and exclusive remedies afforded by rights in terms of traditional property law are softened to take account of collective, intergenerational and other more public concerns (Dyal-Chand, 2013, 2022).³

Van der Walt’s vision of property law amounts to a democratisation secondly because it opens the canon of recognised property interests far beyond the closed list of property rights recognised in common law, to include those who, in the common-law sense, have no legally recognisable interests. In this respect, this vision of property both grants ‘recognition and protection to interests that would not have qualified for it according to private law doctrine’ and extends the canon of recognised interests by ‘requir[ing] the courts to reduce the potential impact of what may seem like trump rights in private law, in accordance with the propriety of giving some recognition and effect to what may seem like unrecognised and unprotected or systemically weak conflicting interests, or of restricting what may otherwise seem like an unlimited or overbearingly strong right’ (Van der Walt, 2012: 152). Here, one also hears Ngcukaitobi’s concern with unravelling or ‘untangling’ the ‘mystery of land tenure’ to decentre what he calls private freehold and extend legal recognition to a range of other rights and interests (Ngcukaitobi, 2021: 150–53).

I see Van der Walt’s vision as a democratisation of property law, third and importantly, because it creates for those holding property interests a ‘participatory space’ within the system of property law. It requires participants in a property law dispute equally to account for the assertion of their interests within the specific context of their case, the broader historical context and the context of the overall systemic goals of the property law system. It then also requires courts to decide such disputes by pursuing an accommodation between competing or overlapping interests in a manner that advances constitutional goals (Van der Walt, 2012: 152). In short, it requires proper, contextualised consideration of and concern for everyone involved in a property-related dispute, instead of the mechanical and conclusory application of remedies flowing from abstract rights (Brand & De Villiers, 2021: 102). This notion has recently been taken further by Stuart Wilson, who advocates a re-envisioned property law within which spaces are created ‘in which ordinary people … [can] shape the terms on which they access land, tenure, and credit’ (Wilson, 2021: 13–14, 11).

In this sense of a property law that evinces equal consideration and concern for those involved in land disputes, the democratisation of property law is a particular expression of the notion of the Constitution’s ‘caring’ ethos (Klare, 1998: 153; Van der Walt, 2001:303; Van Marle, 2003; Cornell & Van Marle, 2005). This is, of course, undergirded, finally, by how this vision of property relates to marginality, weakness and vulnerability. To describe property law as a system of regulation of property-related interests in light of and with the aim of furthering constitutional goals, rather than a hierarchically arranged collection of rights and remedies, creates in property law and the protection it affords a particular place for the marginal and the vulnerable – those who have no rights. Van der Walt explores this aspect of his vision in Property in the Margins. Here he points out that in his vision of property law, ‘marginality is … a vital element of property as a legal institution’ and that ‘although those on the margins usually hold weak property rights or no property rights at all, marginality in itself does not equal weakness – at least in some cases marginality holds a power of its own that is highly relevant for property theory’ (Van der Walt, 2009: 24).

This then, is what, in my view, we should be working towards when we think about land and our relationship to it and, more importantly, our relationship with one another in relation to land. We should develop a conception of property and a system of property law that is transformed in the sense that it radically departs from the very foundational features of persistent apartheid-era common-law notions of property and property rights.

The focus should be on apartheid’s notion, whether in the context of private ownership or state social engineering, of absolute power over land in favour of someone or some one thing. It is this feature that enabled the common law’s complicity in apartheid land law and social engineering. It is this feature that renders the common law of property so peculiarly unsuited to our reality of overlapping, enfolded, entangled interests and concerns in land. It is this feature that impedes the redress of past injustice and the transformation of our living together in relation to land.

The goal should be to disperse and dissemble that absolute power; to democratise property law in the four related ways described above: by requiring contextualisation of private interests in land within history and within constitutionally mandated transformative goals; by resolving property disputes and developing land law through creating participatory spaces within which mutual accommodation rather than trumping is sought; by opening up the canon of recognised property interests; and by fostering a particular concern for those on the margins and those who are excluded.

To be sure, to focus in this way on dispersing the absolute power that an unreconstructed notion of private ownership and its corollary in state hands affords is not a proposal to do away with individual private ownership or, indeed, more broadly, strong individual rights to land. There are many practical and principled reasons related to land use and development and to important notions of personal freedom, autonomy and equality why strong individual rights to land, capable of resisting interference both from other private individuals and communal or public power, are indispensable to the quest for justice in relation to land and our relationship to it. It is instead thinking about how to relativise private ownership, how to contextualise it within and in relation to the panoply of other individual but also public, common and cross-generational rights, interests and considerations that apply to land and that operate in disputes about land.

In light of this goal, how have we fared over the last four or five years?

The Debate of the Last Four and a Half Years

The debate of the past four and a half years around the land question has, at the political level, given rise to two main proposals for (ostensible) amendment of the Constitution.

First, it gave us the ruling party’s notion that was eventually encapsulated in the Constitution Eighteenth Amendment Bill, which was tabled before Parliament and eventually defeated (Gerber, 2021). In short, this proposal sought amendment of section 25 to ‘make explicit what is implicit’, namely that, where expropriation occurs for purposes of land reform, the amount of compensation paid may be nil (Constitution Eighteenth Amendment Bill (CEAB) 2021, 4). That is, for all its trappings,⁴ it was still only a proposal that the state should have the power to take land from individual owners to give it to others, without having to pay an actual amount of compensation for it (CEAB 2021, 4).

Second, it resulted in the EFF’s proposal for ‘state custodianship’ of all land: that all land be declared the common heritage of the people of South Africa and placed in the custodianship of the state, which will allocate use rights to land through an administrative process, based on need (EFF, 2021: 4, 7).

Although presented by their backers as in some way having important differences (Masungwini, 2021), these two proposals have much in common. As stated in the introduction, they first both clearly move within the same ‘master narrative’ of the land question, that the only or at least the most important issue is to restore land to those from whom it was taken. I return to this aspect in the conclusion. Secondly, they are the same in that they fail to recognise that the main problem with apartheid property and land law, which enabled colonialism and apartheid’s excesses concerning land, was the notion of absolute and exclusive control of land. Indeed, both proposals remain within and, in fact, validate this central ‘code’ of apartheid land and property law.

This is, of course, most obvious with the African National Congress (ANC) proposal. The method for taking from some to give to others that it has so stubbornly clung to – expropriation – is inevitably bound up with the notion of ownership. That is, it is almost nothing other than a proposal of how to enable the state to transfer ownership of land from some to others without having to compensate or compensate substantially. That the notion of ownership that this proposal works with is still the unreconstructed apartheid-era notion of absolute exclusive control is borne out by the current government’s track record in land reform over the last two decades. As Ngcukaitobi points out in some detail (others have also, see e.g. Cousins, 2020: 9), its efforts at generating access to land have been dominated by a notion of private ownership that affords absolute and exclusive control to the holder and in that sense is no different from apartheid ownership (‘our entire “land reform policy” is premised on the idea that land is to be individually owned, in absolute terms, to the exclusion of non-owners’) (Ngcukaitobi, 2021: 134), or its complete opposite, through highly attenuated and precarious forms of landholding (such as conditional leasehold in the agricultural context) in which the state retains, and exercises, absolute control (Hall & Kepe, 2017: 8). In doing so, the government has failed to unravel Ngcukaitobi’s ‘mystery of tenure’. That is, it has assumed that the ‘promise of the Constitution’ is for absolute ownership without properly and centrally considering other forms of rights to land, whether ‘formal’ or ‘informal’, that would be better suited to our reality of overlapping and enfolded rights and interests in land (Ngcukaitobi, 2021: 150–51). In sum, it has either given land absolutely, or not at all, with nothing in between, staying in this way within the apartheid imaginary of absolute control over land residing exclusively in someone or something, with its absolute absence the consequence for others.

The recurrence of the apartheid-era ‘code’ of absolute and exclusive control is more difficult to trace in the EFF’s proposal for ‘state custodianship’ of all land. This proposal was consciously presented as a radical departure from apartheid-era notions of private ownership and the idea of absolute control associated with it. It is of course, first, a proposal to abolish private ownership of land in favour of land becoming common heritage and being placed in public (the state standing in for public) custodianship (EFF, 2021: 4). More importantly, care is taken to distinguish the idea of state custodianship from nationalisation by pointing out that while in the latter the state becomes the owner of the land and assumes the control that entails, in the former it does not: ‘The difference between nationalisation and custodianship is that nationalisation translates to the transfer of ownership to the State. The State takes some form of management or control of nationalised assets. Whereas custodianship suggests [that] the State acquires rights on behalf of others to facilitate access without either managing, controlling, or exploiting’ (EFF, 2021: 2–3).

But this impression is countered by the track record over the last decade or so of the notion of state custodianship of land in the context that the EFF proposal uses as an example: state custodianship of mineral resources in terms of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). Rather than this mechanism affording impoverished communities more control over their land and the mineral resources associated with it it has diminished their control in favour of the state. Even as custodian of mineral resources rather than owner, the state exercises absolute and final control over who gets access to those resources. As, for example, Aninka Claassens and Boitumelo Matlala have shown exhaustively in their study of the record of mineral rights applications in the North-West platinum belt, this, moreover, has failed to displace patterns of control over mineral resources and the land associated with it in favour of impoverished people and communities (Claassens & Matlala, 2014). The system has instead created a space within which powerful private commercial interests, with influence and political capital, have far better and more effective access, perhaps even than they had at common law. In sum, this record shows that state custodianship neither attenuates absolute control nor effectively de-privatises or equalises access to resources such as land.

This is further illustrated, perhaps more tellingly, in those instances where the state has, in the context of land reform, already assumed the position of ‘custodian’ of rights, such as through the acquisition and lease of farmland to enable access for impoverished black South Africans in terms of the State Land Lease and Disposal Policy (SLLDP) of 2013. Ruth Hall and Thembela Kepe have argued that this system of affording strongly attenuated conditional land use rights has turned out to be a ‘highly prescriptive managerial approach’ and ‘a key way in which black rural populations can be controlled’, with the requirement ‘to use land in compliance with official designs … [often being] the basis for them to lose land’ (Hall & Kepe, 2017: 8). This leads them to conclude that ‘South Africa’s land reform seems to have succumbed to the ingrained scepticism held by officials in successive [apartheid-era] departments of “native affairs” and “bantu affairs” about secure and independent land rights for black people’ (Hall & Kepe, 2017: 8; see also Hall & Williams, 2003; Hall, 2015). To this, one must add that this system has in-built vulnerability to elite capture, with political and economic power conditioning access, to the detriment of those on the margins who are the intended beneficiaries of the policy (PLAAS, 2020: 3–4).

In fact, at the risk of taking this point too far, the EFF proposal for state custodianship of all land mirrors apartheid’s absolute notion of ownership in much the same way that statutory apartheid land law, which applied only to black South Africans, mirrored the then common-law ownership right in its absoluteness and exclusivity. As André van der Walt has argued persuasively, it was the common-law absolute notion of ownership that enabled the absolute control that the state could exercise over black South Africans’ landholding through statutory land law. Once black South Africans were statutorily divested of the capacity to hold common-law ownership or other ‘real’ rights to land in ‘white’ areas, they were, in legal terms, at the mercy of the state’s absolute control – in a system of absolute rights, the absence of rights renders one absolutely without control (Van der Walt, 2001: 268).

In sum, in its failure to break with the apartheid notion that, whether through ownership or through the state, someone or something, somewhere, must hold absolute control over land, the past four and half years’ debate over the land question has failed to engage Ngcukaitobi’s ‘mystery of land tenure’. Fixated on who holds absolute control at the expense of whom and on wresting absolute control from some in favour of others, it has failed to grapple with the real land question of how to mediate overlapping rights and interests over land in a democratised manner, that takes account of the public good. To do the latter, rather than focus on the wresting of absolute control from some in favour of others, we should focus on how to dissemble absolute control itself, by thinking of a different system of rights over land, one that is not hierarchical, at least in a fixed linear sense, and where conflict between rights and interests can be mediated in democratic ways.

What Have We, in the Process, Left Behind?

The irony is that, through the courts, there have been various encouraging lines of development concerning this – cases in which, whether through the creation or bolstering of participatory spaces, recognition of previously unrecognised rights and interests or introduction of a ‘public interest override’ (Ngcukaitobi, 2021: 151), the democratisation of property law has started to emerge. The myopic focus of the political debate on land of the past four and a half years left these developments behind and has diverted attention from the urgent need to consolidate and further the gains so achieved. I give examples of these developments from two areas, although there are others also: contestation about mineral rights and the land attached to them, and eviction.

The clash between mineral rights awarded in terms of the MPRDA and so-called surface rights to the land to which such mineral rights relate is a particularly fruitful context within which to consider ways to dissemble apartheid’s notion that somewhere, someone or something must hold absolute control over land to the exclusion of all else. This is because mineral rights such as prospecting or mining rights provide the most acute version of this absolute control: within their scope, they afford their holders the strongest control over the land to which they apply, trumping even the otherwise apex right of ownership.

The notion that a prospecting or mining right within its terms affords its holder absolute control over the resource to which it applies, and the land under or on which it is found, has steadily been dispersed and democratised. This has happened in two ways.

First, cases rendering robust interpretations of statutory requirements that surface right holders be consulted at various stages of the acquisition and implementation of mineral rights have subjected mineral rights holders’ ostensibly absolute control to versions of Van der Walt’s ‘participatory spaces’, providing opportunities for achieving mutual accommodation of overlapping rights and interests. On the back of a basic principle established in the early case of Bengwenyama⁵ that all requirements imposed on applicants for mineral rights or mineral rights holders to consult with the holders of surface rights to the land concerned should be interpreted substantively, to require ‘negotiation and … agreement’ and ‘engagement in good faith to attempt to reach accommodation … in respect of the impact on the [surface right holder’s] right to use his land’ (para. 65), potentially robust participatory spaces have been created at various stages of the process of acquisition and implementation of mineral rights. In Maledu,⁶ for example, it was held that the grant of a mineral right does not simply automatically extinguish informal rights to the land to which it applies, held in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). Instead, these rights could only be deprived with the consent of their holders, obtained in the case of communally held land at a meeting of which all actual right holders had prior notice and in which they had a reasonable opportunity to participate (Maledu, paras. 107–108).⁷ It was further held that the grant of a mining right also does not, on its own, entitle its holder to evict surface right holders to the land in question. Before it could apply for an eviction order it would have to show that it had made a good faith and reasonable attempt through mediation to achieve the accommodation of the surface right holders’ interests, which had failed (paras. 109–10). Both these holdings are examples of the court subjecting the ostensibly absolute control that mineral rights afford to strong, substantive participatory spaces in which interests that overlap or conflict with the mining right can be protected and at least partially vindicated. In doing so, both of course also democratise the mineral rights context in one of the other ways outlined above: through providing strong protection against the exercise of mineral rights to interests not previously recognised in this context, informal land rights.

The mineral rights context has also been significantly democratised in another way than the creation of strong participatory spaces and the consequent recognition of previously ignored individual or communal interests. In Maccsand,⁸ the Constitutional Court held that the award of a mining right does not divest its holder of complying, before it can start mining, with requirements for environmental authorisation and land use permission imposed, respectively, by the National Environmental Management Act 107 of 1998 (NEMA) and the Western Cape’s Land Use and Planning Ordinance 15 of 1985 (LUPO). This judgment is a powerful subjection of the potentially exclusive power that a mining right affords its holder to the broader public interest in environmental protection and orderly land use and planning protected by the NEMA and the LUPO and, importantly, to the participatory spaces that are created in these laws for members of the public to object to applications for authorisation or land use modification. It has since been extended into areas other than environmental and land use regulation.

The other area in which there are hints of the democratisation of ownership and property law is in the law regulating home evictions. In these cases, the progressive recognition of certain checks on the exercise of ownership rights through the rei vindicatio, the halting but increasing extension of these into private ownership and the recognition of new kinds of rights or at least old kinds of rights applied in new contexts with which to counter ownership have made significant inroads into the absoluteness of ownership.

On the basis of the judgment in Port Elizabeth Municipality,⁹ Van der Walt pointed out in 2012 that the constitutional requirement given effect in home eviction legislation, that an eviction order from a home may only be granted after a court has concluded eviction would be just and equitable in the circumstances, could develop into a full-fledged substantive rather than only procedural right not to lose one’s home arbitrarily. He argued that the ‘just and equitable’ enquiry during eviction proceedings was a signal space for the destabilisation and dispersal of the previously absolute power that ownership afforded over land (Van der Walt, 2012: 156–58).

His prediction concerning this has, frustratingly slowly but nonetheless progressively, come to fruition in the cases. In the context of the state seeking evictions from homes, the courts have recognised a range of interests and factors as ‘relevant’ to justice and equity and important enough to qualify the absoluteness of ownership and prevent its absolute exercise through eviction. Of these, the duration of occupation of the homes concerned; the extent of ‘settledness’ in economic, social and other networks of those whose eviction is sought; their vulnerability to homelessness and other depredations upon eviction; uncertainty about the validity of the title of the owner seeking eviction due to pending proceedings to challenge it; the reason why eviction is sought; the extent to which the owner attempted to avoid eviction by negotiating (‘engaging’) with those on the land; the use to which the land will be put once eviction is achieved; and the extent to which social instability may arise from an eviction are some examples.¹⁰ These developments in the context of state or state-sponsored eviction have also increasingly been extended to evictions sought by private owners. First, in cases such as Blue Moonlight,¹¹ private property owners were held to have to ‘endure’ the presence of persons on their land against whom an eviction order has been obtained for as long as it takes the state to find them alternative accommodation. Second, there have been increasing numbers of cases in which eviction orders sought by private owners concerning private property have been denied because eviction was held to be unjust and inequitable under the prevailing circumstances.¹² To be sure, these developments have been stop–start (Brand & De Villiers, 2021); there remains unevenness in the actual application in, for example, the Magistrates Courts of the principles so developed (Singh & Erasmus, 2022: 24–25, 27–28); and the development in this direction is certainly not yet conceptually coherent (Liebenberg & Kolabhai, 2022: 258–67). Nonetheless, they represent significant conceptual destabilisation of the apartheid notion of ownership as an apex right, affording absolute power to exclude.

The eviction context has also seen the recognition of new rights and interests or the ‘repackaging’ of existing rights at common law to erode the absoluteness of ownership. Most obviously, the fact that our new, constitutionally inspired eviction law contemplates refusal of eviction orders sought against ‘unlawful’ occupiers of land (that is, people who occupy without any recognised right in law to do so), means that a new category of tenure security has been created: an entitlement to remain on someone else’s land although you have no ‘right’ to do so. Much work remains to be done to develop, conceptualise and describe this category, which seems a dramatic and clear relativisation and contextualisation of ownership against concerns and factors other than countervailing rights (Mhlanga, 2022). In addition, long-established common-law mechanisms have been adapted to new circumstances to give effect to constitutionally required security of tenure. One example occurred in the case of Community of Grootkraal.¹³ In this case, the Supreme Court of Appeal recognised, based on the somewhat obscure common-law evidentiary mechanism of vetustas, that a public servitude had arisen in favour of a community of farmworkers to continue their use for religious, educational and social purposes of a portion of a private owner’s farm. On this basis, the farm owner’s attempt to evict them failed.

Conclusion

In the introduction, I mention two features of the past four and half years’ debate about the land question that are striking: the framing of the basic problem as one of loss and the consequent need for restoration; and the notion that the only solution to the problem thus framed is to enable the state to take land from some to place it at the disposal of others, without having to pay for it. In the body of the chapter, I focus on the latter. I argue that the fixation on enabling the state to take land so as to place it at the disposal of those who have none, whether through ‘expropriation without compensation’ or ‘state custodianship of land’, has caused the debate to remain caught up in the basic conceptual structuring of apartheid land law, conditioned by an understanding of ownership as an apex property right that affords its holder absolute and exclusive control of the land to which it applies. I conclude that, indeed, the two proposals that have arisen based on this feature of the debate have validated and confirmed the notion of absolute control so central to apartheid land law.

Here, in conclusion, I turn to the former of the two features: the framing of the problem as only one of land having been taken so that it should now be taken and then given back. As already alluded to in the introduction, Cherryl Walker in 2008 expressed her concern about reducing the land question to this ‘master narrative of loss and restoration’. Although, so she argues, this master narrative is undoubtedly true and a central and important aspect of the land question, it is only one part of a much broader question. As a lens through which to consider the transformation of our relationship to land and to one another concerning land, she concludes, it is limited (Walker, 2008: 16).

But it goes further than this. Framing the question thus is also limiting – it constricts our transformative imagination and ambition. In an engagement with different understandings of the transformation of our land law, André van der Walt considers the kind of oppositional approach of ‘challenge and demand’ that the master narrative of loss and restoration and a purely restitutory approach to land reform embody. Drawing on Njabulo Ndebele (2000a, 2000b, 2000c), he points out first that such an oppositional approach inevitably validates that which it is directed against:

In the confrontational stand-off of challenge and demand the reform process derives its power and its dynamics from its position of confronting and facing the other, waiting for something to be given or done by the other. The inherent recognition of the confronted other as the source of injustice is … understandable in this aesthetic, but the aesthetic and rhetorical implication is that the confronted other is still recognized as the source of power, even at a time when political power has already been wrested away from the other.

(Van der Walt, 2001: 292)

Moreover, so he continues, to adopt such an oppositional, restitutory approach to the transformation of our land law means that ‘the shadow, the ghost of apartheid land law continues to hover over … land reform jurisprudence, even after the formal demise of apartheid politics and law, thereby potentially restricting our sources of energy and power to imagine a different future, where change and justice no longer depend on opposition to the denounced other of the past’ (Van der Walt, 2001: 292).

Drawing together Walker and Van der Walt, in framing the land question over the past four and a half years as only about taking what was taken unjustly in the past and giving it back we are ‘setting our transformation sights [far too] low’ (Van der Walt, 2002: 271). It has limited our gaze to only the restitutory aspects of land reform and caused us to lose sight of the real, broader question – the question of how to live together concerning land. It has restricted our transformative imagination and blinded us to the admittedly nascent, halting and interspersed but nonetheless truly transformative developments in our land law jurisprudence towards democratising our relationship to land and the need to nurture, confirm, validate and expand these developments. Perhaps most gallingly, the narrow focus on better enabling the state to take land to ‘give it back’ has caused us to mirror, and so strongly validate, precisely that away from which we most need to transform: the apartheid notion of land and property law being simply about locating absolute and exclusive control.