Page 27 - Msingi Afrika Magazine Issue 35
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Community
to those dispossessed by apartheid. It is determined after redress for the original
common cause that, in all circumstances, crime of dispossession has been remedied by
restitution for a crime or dispossession, restitution.
supersedes the compensation of a
beneficiary of the crime or dispossession, if Opposing my view, individuals like Bass
compensation is due at all. Kruger, with whom I have debated, insist that
Section 25 of the Constitution prioritizes the
My understanding is that the new protection of property and preemption rights
Expropriation Act is part of the legislation of the beneficiaries of dispossession, and thus
that the South African government was no expropriation or restitution can happen
enjoined by Section 25(5) to create, in order without compensation.
to enable the state to ensure land reform,
restitution, and equitable distribution of Many in South Africa, including my good
resources to all South Africans. friend Andile Mngxitama, believe this
position, but it is based on ignoring other
This new Act addresses the inability of the tenets of Section 25 of the same constitution.
South African government to comply with
Constitutional Court and Land Court rulings Section 25(4) explicitly states that the
mandating restitution for dispossessed purpose of Section 25 is to advance public
people, such as in District Six Committee interest through land reform and equitable
and Others vs The Minister of Land and access to South Africa’s resources for all
Others in the Land Court. people.
In the District Six case it was clear that In fact, when Section 25(4) is read alongside
the government has taken over 20 years Sections 25(5), 25(6), and 25(7), it becomes
to redress land dispossession because clear that the Constitution’s intention in
the government lacked the legal tools to this section, is to compel the government to
sequestrate land occupied by beneficiaries of create legislation to enable restitution and
dispossession, without compensation. equity for victims of dispossession. It’s clear
from the coercive thrust of the constitution in
Now, President Ramaphosa and his this section that restitution is paramount.
government have done well to create
legislation (the new Expropriation Act) To fully appreciate the issue of compensation
that empowers the Minister of Public and its balance with restitution, we must
Works and Infrastructure to expropriate examine Section 25(3), which states:
(I choose to call it sequestrate) land from
which people were dispossessed illegally “The compensation and the manner and time
since 19 June, 1913. The amount, manner, of payment must be equitable, reflecting the
and timing of compensation can then be equitable balance between public interest and
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