Page 28 - Msingi Afrika Magazine Issue 35

Community
the interests of those affected, having regard
to relevant circumstances including:
(a) Current use of land.
(b) History of the acquisition and use of land. the person who benefited from dispossession
(c) Extent of direct state investment and
subsidy in acquisition and beneficial capital
improvements of the property.
(d) Purpose of expropriation.”
What catches the eye here is the express
indication that in the compensation
negotiations, there needs to be a
determination of the manner and timing of
compensation in line with public interest.
This implies that there are different forms
of compensation, suggesting that monetary
compensation may not be the only option.
Additionally, this should be balanced with
the public interest and the interest of “those
affected”. But what is the public interest
again according to the Section: the nation’s
commitment to land reform and reforms to
ensure an equitable distribution of natural
resources to all South Africans.
Furthermore, the interests for such
compensation include those affected. But
who are those affected? The obvious affected
parties are the person whose property is
being expropriated. However, that person is
not the only interested party, nor are they the
only ones with property rights that need to be
protected or remedied, especially considering
that the person who was dispossessed of the
property after 1913, should take precedence.
Now that we have established a hierarchy
of claimants, we must apply the concept of
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restoration and restitution outlined in 25(7).
Since dispossession occurred before the
need for expropriation, restoring the person
dispossessed should supersede compensating
emanating from discriminatory and racist
laws that were deemed crimes against
humanity, surely.
It’s clear from this section that, unlike the
dominant interpretation that Section 25 that
it is primarily about protecting property
rights and granting preemption rights to
beneficiaries of dispossession (settlers). The
spirit of the section focuses on restitution,
land reform, and addressing the skewed
division of natural resources in South Africa
caused by racially discriminatory apartheid
laws.
The concept of compensating beneficiaries
of dispossession who might lose property
in which they have faulty title during this
process, appears to be more of a political
decision than a legal mandate, especially
considering that restoring stolen property
can, in itself, serve as compensation for the
dispossessed as the perpetrator or beneficiary
of the crime or dispossession has no just
cause for compensation.