South Africa’s Land Expropriation without Compensation at the Legitimacy Crossroad: Are the Enabling Provisions a Constitutional Amendment or Dismemberment
The call to amend section 25 of the Constitution of the Republic of South Africa, 1996 in pursuit of land expropriation without paying compensation has become a subject of intense, emotive debate in present day South Africa. The proponents argue that a constitutional amendment which permits land expropriation without compensation is a transformation imperative to speed up land reform to reverse the skewed inequalities in land ownership inherited from the colonial and apartheid eras. However, the opponents contend that such an amendment will necessitate substantial changes to the property clause of the Constitution and thereby violate the basic tenets of constitutionalism by creating a new constitutional order rooted in a populist agenda that is avowedly nationalistic, nativist in outlook, intolerant, and antagonistic to South Africa’s extant constitutional architecture. This article explores the merits of the opposing arguments. Utilising the widely acclaimed doctrine of basic structure, the article delineates circumstances under which the said constitutional amendment could result in constitutional dismemberment. It then offers recommendations on how such a constitutional amendment could engrain certain essential protections to prevent abuse of power related with state’s power to expropriate land without compensation which often results in constitutional dismemberment.
Keywords: Land expropriation, compensation, expropriatees, constitutionalisation,dismemberment
Speculum Juris Volume 35