Way to just reform
land reform has been deemed to be a legitimate public purpose.
South Africa’s Land Claims Court has ruled that the best method to calculate “just and equitable” compensation was to determine the market value and thereafter subtract or add to the market value depending on the facts of each case. The criteria of market value appear to be the primary concern in expropriation cases, largely due to our understanding of property law. No other criteria feature as strongly in the current valuation of land.
The irony is that there was no market value when the land was first taken. The effect is that an overemphasis on market value, ignoring other factors, has created a double benefit — first under apartheidera dispossession and then under market value, which results in a windfall of profiteering. Market value must be considered together with other factors. It is likely that a court can come to the conclusion that “just and equitable” compensation is one where no payment needs to be made once all factors are considered.
Rather than leave that up to the courts, the EFF is proposing that no compensation be paid in all cases where people were dispossessed of their lands under apartheid laws.
South Africa’s Constitutional Court has not been faced with this issue of determining “just and equitable” compensation. A number of legal experts argue that, if and when such a case comes before the court, the content of what is “just and equitable” will be clarified and that will be the law. So there is no need for any amendments to the Constitution.
The fear of garnering hostility from white farmers has caused land reform to slow down, as have corrupt practices and high compensation payments. Indeed, some indication of a similar concern in Brazil is found in its Constitution, which provides for payment “in agrarian debt bonds with a clause providing for maintenance of the real value, redeemable within a period of up to 20 years computed as from the second year of issue”. So the cost of expropriation must also be manageable for the state.
There are certainly great parallels in the struggle to achieve equitable land distribution. It is not clear that law is the best avenue to achieve land reform, even though there might be political will to do so. Critics say that there is a bias in the legal system, favouring ownership at the expense of other claims. But if the original confiscation of land is unjust, there can be no settled title. The argument goes: if there was theft, anyone who bought the stolen property cannot have ownership and cannot pass ownership on. The difficulty is how to settle all the competing claims fairly in the full knowledge that apartheid laws were not legitimate.
But the law seems to be necessary to quell the mounting emotions attached to land expropriation. It might be better to define the role of the courts as a mediator between parties, enforcing the requirement of “meaningful negotiation”. Perhaps, if the courts order a consequence for failing to “meaningfully negotiate”, quicker progress might be made.
The histories of all three countries also indicate that it is not enough to leave the process to legislators alone. The role and function of civil society is crucial in keeping the public focused on the issue of land rights because not all are easily persuaded that land redistribution is fundamental to progress for all. Social pressure appears to be persuasive in defining the substantive content of laws dealing with land restitution.