INTRODUCTION

1. Constantly, consistently, committedly, and concentration-driven, we shall do the best required, even if it means going beyond what may be regarded as our capacity. This, by reason simply of the fact that we are constitutionally commanded to contribute to transformation. After all ‘[W]e all have the duty to transform our society. And all, black and white, are an essential part of “we the people of South Africa” that shoulder the burden to do so.’ See Afriforum matter, at 8. The line “we the people” is recorded in the Preamble to the Constitution of the land.
2. Our historical context underpins the duty to transform. It is our collective duty.
3. We have our part to play. It includes raising awareness or contributing to the raising of awareness. Regarding land, same is everything. For opportunities, we leave Limpopo for Gauteng and stay, in Gauteng. It may be for work or study purposes. This is one of many examples.
4. While in Gauteng, we lease houses, stay in shacks and hostels. This is land and what it partly means to humankind. Wherever we are, we live land. Land is property. We limit ourselves to land, the land being the Association’s focus.
5. As a constitutional state, we need to look to the Constitution for solutions. In that respect, specific provisions are of import. They are provisions in section 25. A reading of section 25 suggests that it consists of three parts.
6. In summation, they are:

6.1. the first part, which consists of two legs. It is in respect of subsections (1) and (2);

6.2. the second part, which is about non-arbitrary deprivation. We hold that this, too, applies to expropriation. The second part is drawn from subsections (1) and (2), and

6.3. the third part, which is about transformation. This demands transformation and is derived from subsections 4-9, focusing on (4), (5), and (8).

FIRST PART- Two access-facilitation mechanisms and non-arbitrariness

Subsections (1) and (2)- deprivation and expropriation

7. The first part consists of two access-facilitation mechanisms, namely deprivation and expropriation. Deprivation is in terms of section 25 (1). Expropriation is in terms of section 25 (2).
8. The reason why there is deprivation and expropriation is that they are not the same, though to some degree they are similar. The difference or similarities may be a subject of discussion in future; the deduction below considered.

Subsections (1) and (2)- non-arbitrariness

9. The second leg of the first part is about non-arbitrariness when deprivation occurs. It requires that any deprivation of land should not be without a proper process and should be for a good reason. We hold, it bears repeating, that such is the same with expropriation. Therefore, deprivation or expropriation should not be arbitrary.

SECOND PART- payment of compensation

10. The second part deals with the payment of compensation in the case of expropriation and only in the case of expropriation. This part consists of subsections (2) and (3).

DEDUCTION FROM THE ABOVE: deprivation and expropriation

11. Without discussing it in this work, section 25 (1) deprivation requires no payment of compensation. The section 25 (2) expropriation, read together with subsection (3), requires payment of compensation. See FNB matter. There you have it. Already, one area of difference between deprivation and expropriation is established.

THIRD PART- reforms

12. Subsections 25 (4) – (9) demand transformation. They seek to achieve land equality. Please consider subsections (4), (5) and (8). Land reform and reforms related to land are central in those provisions. They are reinforced by the need for persons to have access to natural resources in an equal manner. Land is a natural resource.
13. The third part demands, we should repeat, transformation. There must be change. Afrikans, like all others, must have access to land on an equitable basis. This is in terms of subsections (5), read together with (4). Equality means that if there are ten hectares of land and:

13.1. there are seven Afrikans; then seven hectares should be for Afrikans, and
13.2. there is one Indian, then one hectare, and
13.3. the rest two, two hectares.

14. If Afrikans, being seven, have only one hectare, and

14.1. the Indian, being one, has two hectares;
14.2. the rest, being two, have seven hectares,

then and in that case, we would not be a transformed envisaged section 25 society. In fact, that is how land access currently stands. The majority of the people have less access to land. The minority has more. Interesting!

15. On the land front, we are, as they say, a constitutional delinquent. Political freedom, without land, is devoid of economic freedom. Such is meaningless.
16. Given the transformative nature of the third part of section 25, any stumbling block contained in section 25 may be done away with. Please read section 25 (8). The payment of compensation is a stumbling block, we take it, unless the State says it has money to pay compensation and demonstrates that it has such. At this stage, it is not necessary to record what the response would be to the State indicating that it has money.
17. All we should say is that if the State wishes, it may depart from the payment of compensation. The Association believes that it has done sufficient work on how such work may be done. If the State continues to demonstrate misdirection, we are available to assist.

REFORMS V COMPENSATION

18. A careful consideration of the above confirms that reforms are above compensation. Reforms cannot be departed from. Contrarily, compensation may be departed from.
19. In line with the above approach, for example, an individual interest of a “farmer” is not as “significant”, if it is said to be significant as access to land, say for those ten people who are without land because of the barbaric system and its law before 1994. See FNB matter. Compensation is individual interest, and, considered in the context of the need for Afrikans to have land, it may not be significant. It may be excluded.
20. As appears below, the right of access to housing should not be violated, and in the case of homes, compensation may be appropriate. No one should be homeless.
21. Simple- access to land outweighs payment of compensation. In terms of section 25 (8), payment of compensation may be excluded. On the other hand, access to land cannot be excluded. So one may be excluded and the other not.
22. There is a sufficient body of judgments of the Constitutional Court and other Courts which show that the payment of compensation is subject to the interests of the landless.

EXPROPRIATION AND REFORMS

23. Assuming in favour of the State, without agreeing with it, that deprivation may not be utilized for reform/transformation; expropriation would be the only answer, for the purposes of this work. Then and in that case, expropriation, we hold, should be utilized for reform purposes.
24. Can expropriation be departed from? No. Reforms, too, as stated above, cannot be departed from. Not in our current landlessness context and the many years of suffering the effects of landlessness.
25. Therefore, expropriation and reforms cannot be departed from. They are not impediments to land reform and reforms related to land. In fact, society needs expropriation to achieve reforms.
26. Yes, both land and land-related reforms. The meaning of the latter should be a subject of discussion at some other time.

CONCLUSION

27. The above considered, any work of government or Parliament, which seeks to place compensation, at the expense of reforms, on the highest level, should be rejected.
28. Land reform and reforms related to land are at the highest level. They should be achieved, assuming, without agreeing with the State, only through expropriation. So, in summation, the order of importance is as follows:

28.1. Land reform and reforms related to land, and
28.2. Expropriation.

29. Compensation may be the third, not of importance, though, for it does not contribute to reforms. In fact, it reduces the budget for reforms. However, we need to bear in mind that in our structural analysis, payment of compensation is the third feature.
30. A proper Act of Parliament should be developed. Section 26 of the Constitution’s right of access to housing should not be limited without some measure of compensation. Homes, therefore, should be protected, to the degree necessary. A house that gives or contributes to giving dignity to its occupants should remain the standard. Dignity, wisdom reminds us, is never luxury.
31. A home, by the way, is home, if English permits. If English does not permit, we have just caused it to permit, and it does now or for the purposes of this work, it permits.
32. A guy who resides in Australia and who is a registered owner of three hectares of land in Polokwane will not have that house in Polokwane as a home. Logic tells.
33. So, the State should do its work. It should regulate or cause to be regulated limited exceptions of payment of compensation, such as alternative accommodation of an expropriated registered owner of a house that serves as a home. Compensation may be in kind, as well. This may be in the form of the allocation of a house, a move away from “payment” of compensation to an award of compensation.
34. Please observe this- three hectares and a house. A house, which serves as a home, will not be built over a portion of land measuring three hectares. So, the State may have to regulate such instances involving the valuation of a house separate from the remaining portion of land. A possible discussion in the future, you may agree.
35. About rejecting work that does not contribute to reforms, the Expropriation Bill of 2020 is one such example. It deserves to be crushed. Why? We tell in our manual launched in October 2022. For a copy, you may contact us.

MATOME CHIDI
IN HIS CAPACITY AS THE CHAIRPERSON OF THE AFRIKA JUSTICE ASSOCIATION.
DATE- 11th of January 2023.
Email- info@afrikanajustice.co.za