CONSTITUTIONAL COMMENTARY AND EVENTS

There is a common view among some South Africans that after 24 years of democracy, less than 10% of the land in South Africa belongs to the majority of the population. Someone began to circulate the narrative that the biggest issue relating to the slow pace of land reform is the ‘willing seller, willing buyer’ principle – and that this is prescribed by the Constitution (which is untrue). Together with this, the second biggest obstacle is described as the “equitable compensation” for land, which is prescribed in section 25 of the Constitution. That’s where the call for expropriation without compensation (EWC) originated and gained momentum. Change section 25 of the Constitution, return land without any compensation and the “original sin” will simply vanish in a flash!

What really went wrong? Who should get the blame? Is it the property owners who resolutely cling to their (for some, stolen) land? Is it the estate agents and brokers? Section 25(5) requires that the State “must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis”. Furthermore, 25(8) states: “No provision of this section may impede the State from taking legislative and other measures to achieve land, water and related reform, in order to correct the results of past racial discrimination”. So land reform is, according to the Constitution, the responsibility of the State.