Page 30 - Msingi Afrika Magazine Issue 35

Community
Another issue is, while emphasis is
put on ensuring that the beneficiary of
dispossession gets market price for their
property, are the dispossessed being afforded
the same generosity considering that
cash compensation given to some groups
previously have been a pittance that can’t
afford them the luxury of buying replacement
property now. And of course the absence of
damages and compensation for the racial
laws that kept them underprivileged.
The primary problem we face with the
interpretation of Section 25 by many South
Africans—and even some courts—is the
assumption that compensation for the current
possessor of the property to be expropriated
must precede the restoration of the
dispossessed. This assumption places undue
importance on compensating the beneficiary
of dispossession rather than prioritizing the
restoration of the victim of dispossession.
This, in my view, is a misapplication of the
law of restitution (restitutio in integrum),
which only prioritizes restoring the victim
of dispossession, delict or crime to their
original position before the dispossession.
Consequently, returning their land or
property—i.e., restitution—should include
compensation and damages paid by the
beneficiary of the dispossession. At the same
time, any unjust enrichment enjoyed by the
dispossessor or their beneficiaries should
be forfeited and returned to the victim as
well. I need not emphasize the extent of this
unjust enrichment that took Afrikaners and
the English out of poverty at the expense of
Africans who they oppressed, exploited and
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dispossessed.
I am in no doubt that the drafters of the
Constitution intended to establish redress
for the dispossession of land and natural
resources caused by apartheid’s crime against
humanity. To achieve this, they relied on
the legal principle of restitutio in integrum,
however, they left the responsibility of
operationalizing this principle to the
government, which was tasked with creating
appropriate legislation for the purpose.
The government subsequently introduced
the Restitution Act of South Africa, which,
in my view, falls short. It neither ensures
full restitution nor mandates the payment
of damages or returning unjust enrichment
by beneficiaries of dispossession to victims.
It also fails to clarify what should take
precedence: compensation for the beneficiary
of dispossession or the restoration of the
dispossessed. However, the order is self-
evident, as restitutio in integrum and the
payment of damages for delicts and crimes
remain integral features of South African
common law, commercial law, and case law.
This position is affirmed by the
Constitutional Court case Azapo v. The
President of the Republic of South Africa,
which held:
“In line with Section 25(7) of the
Constitution:
A person or community dispossessed
after 9 June 1913 as a result of past racial
discriminatory law or practices is entitled, to
the extent provided by an act of Parliament: