South Africa: A Brief Analysis Of The Motion Adopted By Parliament


There has been much discussion, debate and commentary over the past couple of months on the motion adopted by the South African Parliament on 27 February 2018, in relation to the expropriation of land without the payment of compensation. More recently, the Joint Constitutional Review Committee ("CRC") has called for public comments on the review of section 25 of the Constitution "to make it possible to expropriate land in the public interest without compensation".

While there has been much commentary on the motion, there is still much which is unclear to the public about its meaning and ambit. In order to aid in bringing some clarity, we have prepared this brief which seeks to clarify a number of issues which have been at the centre of the public debate on the motion. This brief forms part of a series of briefs we are circulating over the next few weeks to assist would-be responders to the invitation from the CRC.


As a starting point, it is worth briefly highlighting some aspects of the initial draft motion proposed by the Economic Freedom Fighters ("EFF") for adoption by Parliament. The draft prepared by the EFF contained several emphatic statements which were ultimately amended by the African National Congress ("ANC") and did not make it into the final motion actually adopted by Parliament. Nonetheless, it is worth briefly addressing some aspects of the original EFF draft motion which have continued to be part of the public debate and will inevitably be at the centre of the comments submitted to the CRC.

In particular, the EFF draft motion raised a number of questions which we believe it would be helpful for would-be participants in the public comment process to engage with, ie:

  • Is there a crisis regarding "the land question"?
  • Is section 25 of the Constitution at the centre of such crisis?
  • Does section 25 require the state to pay compensation when expropriating land?

Is there a crisis regarding "the land question"?

The assertion that there is a crisis in relation to access to, and the ownership of, agricultural land and the need for urgent redress and transformation in this sector is not a particularly controversial one. The Department of Rural Development and Land Reform published the "Land Audit Report Phase II: Private Land Ownership by Race, Gender and Nationality" in November 2017. The report records that 72% of farms and agricultural land which is owned by individuals is owned by white people, with 15% owned by coloured people, 5% by Indian people and 4% by African people.

AgriSA published a report titled "The Land Audit: A Transactions Approach" in November 2017, which also focuses on agricultural land. This report states that the national level of ownership of agricultural land by Previously Disadvantaged Individuals and government has increased from 14.9% in 1994 to 26.7% in 2016. It is worth noting that the report has been widely criticized for a number of reasons, including that it does not differentiate between land owned by government and land owned by black people, and that there is no basis for this collapse which effectively argues that governmental land is black-owned land. Nonetheless, even in its own terms, the report shows that at least two thirds of agricultural land in the country continues to be owned by a demographic which represents less than 10% of the population.

The issue of land reform, restitution and redistribution in the country has also been looked at extensively and reported on by the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change ("the High Level Panel") in its report of the same title.1

The High Level Panel records, amongst other things, that its work "reveals that the record on the progressive realisation of [the rights to equitable access to land, to tenure security and to restitution] is concerning". It goes on to list the various shortcomings in the pace and implementation of land reform, including the failures experienced in the development and application of the relevant laws and policies. Importantly, the High Level Panel also reports that "the ills of the past are being reproduced in post-apartheid society despite extensive legislative reform" and that "the observed changes have not dented the deep inequities in the quality of services received in many instances nor have they made fundamental shifts in outcomes".

In view of the above, and if, as the High Level Panel reports, the deep inequities that existed under apartheid continue to exist in relation to land ownership, it seems difficulty to argue that there does not currently, or soon will, exist some degree of crisis in relation to such land ownership.

Is section 25 of the Constitution at the centre of the land crisis?

Perhaps the most important aspect of the original EFF draft motion which must be addressed in the public comment process is the suggestion that section 25 of the Constitution is at the centre of the land crisis. It is apparent from the High Level Panel's report (and other sources) that the greatest factors which have undermined land redistribution efforts to date are the failure of government policies, ineffective administration and increasing corruption, amongst others.

The High Level Panel's report records how official process applied to date have been "cumbersome and slow, characterised by poor coordination between different departments and spheres of government". It also records how people at the public hearings held by the Panel spoke scathingly about the role of state officials and politicians in land reform and how they were seen as stealing from the people what little they have.

The current land redistribution programme is generally focussed on the state buying then leasing out whole commercial farms at discounted rates. Importantly, as discussed below, this is not something which is required by section 25 of the Constitution. It is a policy choice made by the South African government over the past twenty-odd years.

While section 25 does require the payment of compensation for an expropriation, the simple fact is that the South African government has to date not followed any intensive expropriation programme for the purpose of land redistribution. There is nothing in the Constitution which dictates that there has to be a "willing buyer and willing seller" approach to land reform. It is accordingly a fallacy that it is the requirement to pay compensation or the protection of property rights in section 25 of the Constitution which has been the central hurdle to land restitution. The mechanism of expropriation provided for in section 25 of the Constitution has simply not been tested by any systemic expropriation programme of the South African government since the advent of democracy.

Does section 25 require the state to pay compensation when expropriating land?

Section 25(1) of the Constitution provides that no one may be deprived of property except in terms of law of general application and, importantly, "no law may permit arbitrary deprivation of property". While an extensive breakdown of all the legal nuances and implications of section 25(1) goes beyond the scope of this brief, it is important to note that section 25(1) of the Constitution, though worded in negative terms, actually permits deprivations of property if:

  1. they are done in terms of law of general application; and
  2. the law in question does not authorise, or result in, arbitrary deprivations.

The permissibility of expropriations of property, which is a particular category of deprivation, is specifically dealt with in section 25(2) of the Constitution. This subsection permits the expropriation of property in terms of a law of general application, on two conditions:

  1. for a public purpose or in the public interest; and
  2. subject to compensation, the amount, time and manner of payment of which have either been agreed to by those affected or decided by a court.

Section 25(3) deals in some detail with the compensation payable for an expropriation, requiring that 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" and having regard to all relevant circumstances. What the section requires is a nuanced balancing of potentially competing interests to try and ensure that needed reform is achieved while protecting the rights of existing property right holders. It also lists various factors which should be considered in determining the amount of compensation payable.

There has been much debate about whether the proper outworking of the balancing exercise required by section 25(3), to quantify the amount of compensation payable for an expropriation, could result in zero compensation being payable in particular instances. While there might be some circumstances where this could be the outcome of the balancing exercise, this would likely be rare and only occur in the most exceptional circumstances. In addition, the balancing exercise required by section 25(3) necessarily means that the payment of zero compensation could only be on an ad hoc, individual property basis. The payment of zero compensation would also have to be the outcome of the balancing exercise (particularly as the list of factors to be considered is non-exhaustive) rather than an option which generally exists at the discretion of government. Accordingly, it seems correct, in our view, that a law or policy which seeks to generally allow expropriation of property without the payment of compensation would probably be contrary to section 25(3) of the Constitution as it currently stands.


As indicated above, the final motion adopted by Parliament had been amended by the ANC and softened, somewhat, from the initial proposal drafted by the EFF. The final motion "notes" that President Ramaphosa, in his State of the Nation address ("SONA"), committed to a land reform programme which "entails expropriation of land without compensation"2 and which:

  • makes use of all mechanisms at the disposal of the state;
  • is implemented in a manner which:

    • increases agricultural production;
    • improves food security;
    • ensures that the land is returned to those from whom it was taken under colonialism and apartheid; and
    • undertakes a process of consultation to determine the modalities of the resolution.

Importantly, the motion instructs the CRC to:

  • review section 25 of the Constitution and other clauses where necessary;
  • propose necessary amendments with regard to the kind of future land tenure regime needed; and
  • report to the National Assembly by 30 August 2018.

We note that the motion adopted is, at least on the face of it, specifically about land. Neither the draft motion prepared by the EFF, nor the final motion adopted by Parliament seems to be concerned with "property" in general. Rather, the motion is quite clearly concerned with "land", and as section 25(4)(b) of the Constitution notes, "property is not limited to land". Accordingly, while section 25 of the Constitution deals with "property" rights more broadly, and section 25(3) speaks about the expropriation of property, the motion adopted by Parliament, and the mandate given to the CRC therein, specifically relates to land and not to all property.

Other than seeking to create the possibility of expropriating land without paying compensation, the remaining scope of the mandate to the committee is not very clear from the wording of the motion. It is particularly unclear what is meant by "the kind of future land tenure regime needed" and whether this means the CRC will look at all land tenure issues or only the ownership of agricultural land. However, as the motion makes reference to the remarks of President Ramaphosa's SONA, the reform programme he spoke of is presumably the regime that the CRC is being required to investigate and propose. Accordingly, the proposal ultimately put forward by the CRC in relation to any amendments to section 25 and other sections of the Constitution should ensure that any expropriation of land without compensation satisfies the requirements of:

  • increasing agricultural production;
  • improving food security; and
  • ensuring that the land is returned to those from whom it was taken under colonialism and apartheid.

This means that there is an opportunity for interested parties to apply their minds not only to how the mechanism of expropriation of land without compensation might work, but also to how it might be structured so as to achieve the objectives set out by the President in the SONA. Further, it seems to us that commenting parties should also consider whether there are any additional objectives that should be at the heart of any future land tenure regime.

Finally, it is important to bear in mind in making submissions to the CRC that the Constitution should generally be the ground law upon which more specific statutes should be founded and to which such statutes should seek to give effect.

Accordingly, any submissions made to the CRC should try and distinguish between what should be addressed in the Constitution itself versus what the Constitution should empower in order for Parliament to address through appropriate statutes.


1. The High Level Panel was commissioned by the Speakers' Forum and chaired by Former President Kgalema Motlanthe.

2. I think the word "entails" is intended to mean "includes" in this context

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions