Page 29 - Msingi Afrika Magazine Issue 35

Community
Thus, my understanding of Section 25 is that
the right to preemption of property rights
derived from colonialism and apartheid must
come second to redress and restitution, which
restores the original and only property rights
of the natives dispossessed of the land.
It goes without saying that even in the
Doctrine of Discovery, upon which colonial
laws were established, this Discovery Law or
Law of Nations recognized that natives had
inherent rights and ownership of their land.
According to the same law, colonizers were
to have the first right (preemption right) to
buy land from the natives when they want to
sell, before the land could be sold to other
colonizers or used for colonial use. The
colonizers never adhered to this law.
To emphasize the importance of redress,
Section 25(5) explicitly encourages the state
to enact reasonable laws and other measures,
within its available resources, to foster
conditions enabling citizens to gain equitable
access to land.
This shows that redressing past injustices
was of paramount importance to the drafters
of the Constitution for peace and harmony in
the Republic, as outlined in its preamble. As
such, the founders expected the government
to create laws enabling redress. These laws
should include mechanisms to sequestrate
land taken illegitimately by colonial and
apartheid governments after 19 June 1913,
if restitution of the same land was to be
possibles
Further reading of the Section and the
Constitution’s preamble, confirms that
South Africa’s Constitution is conversant of
the fact that colonial and apartheid laws—
deemed crimes against humanity—illegally
dispossessed the majority of South Africans
of their land and property through racial
discrimination. As per the same Constitution
and other laws, such possessions are illegal
and should be rendered invalid under South
African law.
This is corroborated by Sections 25(6)
and 25(7), which explicitly mandate the
government to grant South Africans legal
tenure to land and property. Section 25(7), in
particular, focuses on restitution or redress
for this crime by stating that “a person or
community dispossessed after 19 June 1913
as a result of discriminatory laws or practices
is entitled, to the extent provided by an act
of Parliament, either to the restoration of that
property or to equitable redress”.
As argued above, the key to expropriation
and compensation in the constitution is trying
to balance the right to compensation for both
the dispossessed and any person likely to
lose their property to expropriation. I am not
convinced however that such compensation
was expressly meant for beneficiaries of
dispossession or theft of that land. The
reason being, once restoration is given to
the dispossessed from the limited resources
of govenment compensating the one who
benefited from the dispossession would be
tantamount to a waste of scarce resources
that should be focused on redress and
restitution, and it surely qualifies as unjust
enrichment.
ISSUE 35 | MARCH 2025 29