Following centuries of colonial rule and decades of apartheid rule, democratic South Africa set out to redistribute the rights to land to remedy past racial injustice and lay the basis for more equitable development.
Section 25 (3) of the Bill of Rights have been criticised by some for not allowing radical expropriation of land which was taken unjustly from indigenous people.
Section 25 (3) says the amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including;
(a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and (e) the purpose of the expropriation.
Advocate Geoff Budlender says blaming the Constitution for failed land reform is without factual foundation.
Budlender says government has not used the Constitution in the way it is entitled to do.
If the words of Section of 25 were followed we would have a situation where the court would say, what's the fair compensation now.— Advocate Geoff Budlender
What the Constitution does is it provides for a mixture of factors so you can decide what is equitable for a particular case.— Advocate Geoff Budlender
Black First Land First national convener, Andile Mngxitama, says market value on the land is the main issue.
He says white land owners do not have a will to contribute to a just society and to return the land he refers to as stolen.
This has got to do with a government willing to take land and land owners accepting historical question of injustice that all land held by white people is a stolen property.— Andile Mngxitama, Black First Land First national convener
It's historical question that needs a political intervention not a legal intervention.— Andile Mngxitama, Black First Land First national convener
Associate Professor at the Institute for Poverty, Land and Agrarian Studies, Ruth Hall, says government has not used sub-clauses of Section 25 which she says are a mandate for transformation.
Hall says there is a need to question class agenda in how the land reform programme plays out.
The most important question is what do we want to achieve through land reform and how do we democratise the process.— Ruth Hall, Associate Professor at the Institute for Poverty, Land and Agrarian Studies
I see the process so far as being highly bureaucratic, highly untransparent with some evidence of some corruption and patronage involved in the allocation of land.— Ruth Hall, Associate Professor at the Institute for Poverty, Land and Agrarian Studies
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This article first appeared on 702 : Land reform in the spotlight on Eusebius McKaiser show