Introduction

When considering whether our legal framework should make room for nil compensation, it is valuable to consider the extent to which nil compensation is possible (or not) under the current framing of section 25. It is difficult to conceive of situations where nominal or very little compensation would realistically be possible. The problem is we do not see many examples in the cases that have been presented to courts. In fact, barring some outliers like Du Toit that are clearly not reasoned or argued very well,Footnote ³ what we do see are courts really struggling to provide compensation below market value and, in fact, moving towards market value, as I will show in the discussion of Msiza LCC.Footnote ⁴ Moreover, what we also see is the state either not expropriating for land reform purposes or offering exorbitant compensation – even above market value. This makes one wonder whether the call for nil compensation to be provided for explicitly in legislation or in the Constitution of the Republic of South Africa, 1996 (Constitution) is not more legally necessary than we initially anticipated.

Let me illustrate by way of Msiza LCC. The facts of the judgment can briefly be described as follows: Mr Msiza was a labour tenant on a farm situated in the district of Middelburg, Mpumalanga Province (Rondebosch). In 2004, Mr Msiza was awarded a part of the farm under section 16 of the Land Reform (Labour Tenants) Act 3 of 1996 (Labour Tenants Act). In the earlier judgment on the merits of the case, Moloto J found that Mr Msiza was a ‘labour tenant’ for the purposes of the Act and was therefore entitled to a specific portion of the land. The landowners sought compensation from the state for the part of the property expropriated in favour of Mr Msiza, but the parties were unable to agree on an appropriate amount of compensation. Consequently, the LCC had to decide the appropriate amount according to section 16(1)(a) and (b) of the Labour Tenants Act (Msiza LCC, para. 3). The owners wanted market value according to the development potential of the land, which increased from R1,800,000 (if viewed in terms of agricultural use) to R4,300,000 (if the property was valued according to the township that could be developed on the land).

Section 23 of the Labour Tenants Act authorises the court to determine compensation and states that an owner ‘shall be entitled to just and equitable compensation as prescribed by the Constitution’. Therefore, the Labour Tenants Act ensures that compensation is just and equitable as section 25 of the Constitution prescribes. When compensation is determined for purposes of section 23 of the Labour Tenants Act, section 25 should therefore be central to calculating such compensation.

The LCC began by setting out the legal position for assessing and determining just and equitable compensation in terms of the Constitution. The court acknowledged that ‘[t]he award of land to the applicant by this court in its 2004 judgment is an act of expropriation’ (para. 3) and questioned whether the requirements for expropriation were complied with. It disposed relatively quickly of the requirement of the law of general application (para. 11) and proceeded to discuss the public interest/public purpose requirement (paras. 12–15). Having accepted that both these requirements were complied with, the court questioned whether the requirement of just and equitable compensation was met. As was mentioned earlier, the 2004 decision entitled the owner to compensation, but the amount of the compensation was disputed in the LCC (para. 16). The landowners insisted that just and equitable compensation in the particular case was compensation at market value (para. 29). In this regard, the court held that:

Interestingly, the court emphasised further that market value would be used as an entry level for determining compensation because it is the most tangible in the list of factors in section 25(3) (para. 30). Therefore, market value should be used as a starting point in determining just and equitable compensation. A two-step approach would need to be followed. First, market value would have to be determined, after which the court would have to assess whether other factors justified adjusting the market value upwards or downwards. In this regard, the court was at pains to emphasise that the two-step approach did not mean that market value was the standard for determining compensation. Compensation must always be determined according to the standard of justice and equity (para. 30). This is especially true in light of the pre-constitutional position, where market value was the central (most important) consideration in terms of section 12 of the Expropriation Act 63 of 1975. The Constitution drew a line through the primacy of market value by allowing for a number of factors to determine just and equitable compensation. Very importantly, no hierarchy exists in relation to the factors, and a balance must be struck between the landowner and the public interest (para. 32).

In Msiza LCC, several factors justified a downward adjustment of market value because market value would not (according to the court) reflect just and equitable compensation in terms of section 25 of the Constitution. However, the court emphasised the point made earlier in Du Toit that market value is not the single most important element when it comes to determining compensation for purposes of section 25(3). The LCC awarded compensation at R1,500,000, which was R300,000 less than the market value (assessed according to the value of agricultural land at R1,800,000, which the government was willing to pay for the land awarded to Mr Msiza) (para. 82). Although it is not entirely clear how the factors translated into the exact amount of R300,000, the court purportedly arrived at the reduced amount after considering the factors listed in section 25(3) (paras. 48–76).

In the end, the court provided its reasons for awarding compensation below market value. These included: the difference between the amount paid for the whole property and the market value claimed for the portion of land awarded to Mr Msiza; the fact that the landowners had made no investments in the land; the current use of the property had not changed in fifteen years; the landowners purchased the property with full knowledge of the claim made by Mr Msiza; the claim for the portion of the land succeeded in 2004, after which the landowners were precluded from using that portion of the land; the purpose of the expropriation was land reform, and the landowners should not be able to claim extravagant amounts from the state in this regard; the Msiza family had resided and worked on the land and in line with the objects of the Labour Tenants Act the award of the land serves to compensate labour tenants who worked on the land in exchange for the right to reside there (para. 80).

The SCA’s decision in Msiza SCA is an appeal against the LCC judgment as outlined earlier.Footnote ⁵ The main thrust of the appellants’ appeal was that the LCC had miscalculated the amount of compensation in line with the use of the property as agricultural land instead of its potential future use for development. Moreover, they argued that the amount of compensation had been incorrectly reduced simply because Mr Msiza was a labour tenant (Msiza SCA, para. 1). More specifically, the appellants asserted that the reduction of the amount of compensation for land reform purposes was arbitrary. As this chapter focuses mainly on identifying whether a more principled approach to nil compensation, specifically in legislation, is favourable, the first argument is not of specific interest here. Therefore, the focus will not be on how the court determined whether market value should be assessed in terms of agricultural or residential property, but rather on how courts are navigating the issue of determining compensation at below market value.

The SCA began its analysis by considering the extent of the land and the labour tenancy agreement to contextualise the determination of compensation for the land that was expropriated. Regarding the amount of land expropriated, the court highlighted that the entire property consisted of 352 hectares, of which just under 46 hectares had been awarded to Mr Msiza (para. 2). The labour tenancy agreement in favour of Mr Msiza (and his family) had been concluded in terms of the Native Service Contract Act 24 of 1932, and it was clear that the family had exercised the right since at least 1936.

The court set out the wording of section 23(1) of the Labour Tenants Act to essentially emphasise the link between determining compensation under the Act and ‘just and equitable’ compensation in line with the Constitution (Msiza SCA, paras. 7–8). It identified what should be taken into account in determining ‘just and equitable’ compensation for the purposes of sections 25(2) and 25(3) of the Constitution. Having regard of these constitutional provisions, the SCA considered the judgment in Du Toit, where the Constitutional Court reiterated the general principles relating to the requirement of just and equitable compensation. As a starting point, the Constitution provides the appropriate standard even in cases where legislation – such as the Labour Tenants Act (as in Msiza SCA, paras. 11–12) or the Expropriation Act (as in Du Toit, para. 26) – applies. Therefore, the first step is to consider the list of factors in section 25(3), even if there is direct legislation that regulates the specific type of expropriation in the case, which includes compensation provisions of its own.

Having regard to all the factors listed in section 25(3), the court conceded that market value is usually the one objectively quantifiable factor (Msiza SCA, para. 12; Moloto Community, para. 59).Footnote ⁶ This reasoning endorses that of the LCC in Msiza LCC and the two-stage approach followed in Du Toit. The court in Du Toit stressed that this approach might not work in all instances, but in most cases it appears to be the most practical. According to the court in Du Toit, this approach can only truly reflect just and equitable compensation if all the factors (where applicable) are accorded equal weight and due consideration (Du Toit, para. 84).

In Msiza, the dispute centred on whether the compensation should be assessed according to the actual use of the property (which was agricultural and valued at R1,800,000) or the development potential of the land (as residential property estimated at R4,000,000). An expert on behalf of the state estimated the current value of the property at R1,800,000 (Msiza SCA, para. 15). Interestingly, according to the ‘Pointe Gourde’ principle, Mr Msiza’s claim for compensation should not be taken into account in determining the market value of the property (Msiza SCA, para. 16). This principle (see Msiza SCA, paras. 18–19 for its origins) applies in the context of determining the amount of compensation for expropriation and is contained in section 12(5)(f) of the Expropriation Act 63 of 1975, which provides that

In this respect, the court considered whether ‘a known impediment to the property’s development potential when the property was purchased which ha[s] a direct bearing on the price that a willing buyer in the Trust’s position would have been prepared to pay for the property’ (Msiza SCA, para. 19) should be considered when determining compensation. However, the court relied on the earlier decision in Port Edward v KayFootnote ⁷ to conclude that the Pointe Gourde principle does not apply in this case and that the accepted market value of the property should be R1,800,000 (Msiza SCA, para. 20). The ‘Pointe Gourde principle, therefore, does not apply to the present case as the Trust bought the land knowing of the Msiza claim and the presence of the Msiza family on the land’ (Msiza SCA, para. 21; see also Moloto, para. 86). Nonetheless, the question remained whether there were any cogent reasons to reduce the compensation to below market value in this particular case.

The SCA considered the approach adopted in Msiza LCC and the reasons for the LCC deducting R300,000 from the market value of R1,800,000. The court found the reasons for reducing compensation as advanced by the LCC unconvincing (Msiza SCA, para. 20). It held that most of the factors listed by the LCC had, in any event, been accounted for in the determination of the market value of the property (para. 25). There was also no indication that the amount claimed as compensation by the appellants was extravagant or that the state could not pay it. Moreover, the court commented that the R300,000 had been arbitrarily arrived at as there was no indication of its basis, especially since all the factors that the LCC indicated for the deduction were already taken into account in considering market value (para. 25). In the end, the SCA held that R1,800,000 – in other words, market value based on agricultural use of the land without the deduction as indicated by the LCC – constituted just and equitable compensation (para. 28).

Reflection

If one reflects for a moment on the difference between the Land Claims Court’s determination of compensation – where we see some engagement with a reduction of compensation to below market value – and the SCA’s difficulty in accepting this reduction, one is forced to consider the question of when (if at all) an amount below market value (never mind nil compensation) would be a serious option, if not provided for on a more principled basis in legislation.

Even though the court followed the two-step approach in the LCC judgment in Msiza, the principle that compensation for expropriation must be just and equitable – as opposed to market value – seems, at least in theory, to have been seriously considered. The way in which the factors in section 25(3) were considered and applied could therefore be applauded. However, given that the LCC is still focused very heavily on market value in its determination of compensation, it forces one to acknowledge that it will be very difficult to deviate from this standard (Du Plessis, Reference Du Plessis2015b).

Jeannie van Wyk argues that the two-step approach that focuses on market value and determines the extent to which the amount must be adjusted, as developed in the majority of cases dealing with compensation for expropriation, is not ideal (Van Wyk, Reference Van Wyk2017: 27). The problem remains the risk of making market value the central consideration, as was the case in the pre-constitutional calculation of compensation for expropriation. That is arguably exactly what happened in the Msiza judgment. Elmien du Plessis, therefore, asserts that in the end, the owner in Msiza received market value compensation as ‘just and equitable’ compensation (Du Plessis, Reference Du Plessis2019: 217). Therefore, according to Du Plessis, the judgment ‘is a showcase of failed reform with regards [sic] to labour tenants and the state’s inability to transfer the land to the lawful beneficiary due to disagreement about the compensation amount’ (Du Plessis, Reference Du Plessis2019: 217).

The Msiza judgment shows the difficulty courts have in determining just and equitable compensation for expropriation. The obligation is placed on courts to determine just and equitable compensation in each individual case. The task is exacerbated by the fact that the compensation provisions in the expropriation legislation (the Expropriation Act 63 of 1975) and the compensation provisions in the Constitution are (still) not aligned (Iyer, Reference Iyer2012: 74; Van Wyk, Reference Van Wyk2017: 25). The calculation of compensation in terms of the 1975 Expropriation Act is of course essentially focused on market value (see section 12 of the Expropriation Act; Van der Walt, Reference Van der Walt2011: 513). Land reform expropriations add a further dimension to the complicated task of calculating compensation for expropriation (see Du Plessis, Reference Du Plessis, Hoops, Marais, Mostert, Sluysmans and Verstappen2015a: 369–87; Van Wyk, Reference Van Wyk2017: 35). To what extent does land reform (alone) justify a (significant) reduction in market value?

The decision in Msiza LCC directly raises the question of determining compensation for a land reform expropriation in terms of section 25(3) of the Constitution. More specifically, the decisions of the LCC and the SCA engage (to some extent) with the question of when we can expect the amount of compensation to be less than market value in terms of section 25. But where does the decision leave South African law in terms of the appropriate determination of compensation for expropriation, specifically expropriations undertaken for land reform purposes, and even a further stretch in terms of opening up debate about the possibility of ever having nil compensation as a serious option in the absence of dedicated legislation aimed at achieving that goal?

Evaluation of the Msiza Judgment: Some Implications for the Determination of Compensation for Expropriation

The calculation of compensation for expropriation as adopted in Msiza LCC seemed sensible and, as stated earlier, could even be commended. The way in which the court engaged with all the relevant factors in section 25(3) is particularly encouraging considering the criticisms often levelled against courts for focusing too much on market value (see specifically Mokgoro J’s comments in Du Toit, para. 36). In this regard, the case is a reminder that the Constitution has allowed for the determination of compensation for expropriation on the basis of just and equitable compensation instead of compensation based on market value. According to Du Plessis, this standard of justice and equity should have a direct bearing on the transformative impact of the expropriation clause in terms of land reform (Du Plessis, Reference Du Plessis2009: 267).

Du Plessis maintains that courts must be aware of what they are protecting in the process of awarding compensation. Compensation may therefore be a way of ensuring redistributive justice. This will create the possibility of moving away from what Du Plessis calls ‘market value centred’ and ‘scientific’ ways of determining compensation, based on a particular legal culture, towards the calculation of compensation for expropriation that is based on a transformative, constitutional legal culture within expropriation law. She introduces the idea of a ‘transformative interpretation of the compensation requirement in the post-apartheid context’ (Du Plessis, Reference Du Plessis2009: 271) and concludes that there are various considerations that the just and equitable requirement in relation to compensation requires in the new constitutional dispensation (Du Plessis, Reference Du Plessis2009: 299–300).

The just and equitable requirement may necessitate an inquiry that a narrow market-driven determination of compensation would disregard. Furthermore, determining the amount of compensation requires a contextualised judgement, which should be sensitive to the facts in the particular case and determining compensation cannot be an abstract analysis (Van der Walt, Reference Van der Walt2011: 509). This should include consideration of the factors listed in section 25, but courts are not limited to considering only those factors. Courts should, however, give special attention to land reform aspirations (Van der Walt, Reference Van der Walt2011: 509).

The SCA decision in Msiza highlights that courts essentially still follow a predominantly ‘market value centred’ approach when determining compensation for expropriation and find it difficult to deviate from that standard. Stated differently, when considering the factors (other than market value) in section 25, courts struggle to find adequate justification for reducing the value and almost instinctively revert to market value. This conclusion is especially interesting considering the debates around nil compensation. If the practice is to award market value, even in land reform expropriations, it becomes difficult to accept the theoretical arguments asserting that compensation below market value – never mind nil compensation – is possible within the current constitutional or legislative framework.

A pertinent question arising from the SCA Msiza judgment is: Is there a missing link between the rhetoric that expropriation below market value is possible and the actual practice playing itself out in courts? More specifically, the SCA decision calls into question the theoretical argument that compensation below market value is ever possible. Msiza LCC certainly purports to be a different approach to the one which singles out market value as the determining factor, especially since the LCC ordered compensation at below market value. The fact that the SCA overturned this decision raises serious doubts regarding the contention that compensation below market value is a serious possibility. The centrality of market value is nothing new and has, of course, been the focus of the courts for decades, before and after the property clause came into effect. Several judgments, even in the constitutional dispensation, have highlighted market value as the starting point in the calculation of compensation for expropriation, making it very difficult to deviate substantially from this standard. In Ash v Department of Land AffairsFootnote ⁸ (paras. 34–35), the LCC formulated a two-step approach when calculating compensation. The court indicated that it would determine the market value of the property and thereafter subtract from or add to the amount of the market value, as other relevant circumstances may require (paras. 34–35). A similar approach was, of course, adopted in Du Toit (para. 37) – as highlighted earlier. This approach is arguably understandable since the general tendency of courts has been to compensate those expropriated by placing them in the same position they were in but for the expropriation (Du Plessis, Reference Du Plessis2015b: 1728). This is in line with section 12(1) of the Expropriation Act, which indicates that compensation is determined according to what the property could have been realised in an open market if sold by a willing seller and purchased by a willing buyer. There are several judgments that highlight this point.Footnote ⁹ Recently, the LCC in Moloto had to decide whether the formula of adding the market value to the current use value and dividing the consolidated value by two would constitute just and equitable compensation for purposes of section 25. The court mentioned that this formula is, in fact, similar to the two-stage approach ordinarily adopted by the courts (paras. 20, 63). Although this is a somewhat different approach, market value still plays a key role in that it is used as the starting point from which compensation for expropriation is determined. In the end, the court in Moloto concluded that ‘[i]n the absence of any other information and satisfactory evidence upon which just and equitable compensation can be assessed, this court is constrained to conclude that market value is, in the circumstances of this case, just and equitable compensation as the landowners contend’ (Moloto, para. 96).

Although recent judgments including Msiza and Moloto tried to indicate that market value should not be the primary focus when it comes to compensation for expropriation, the judgments fail to provide clarity on the question of whether expropriation below market value can be justified in the land reform context, and if so, how such an adjustment from market value should be made within the current legal framework. The cases prove that it is difficult to justify why a reduction in market value is possible, even though it is often argued that the law allows for such a possibility in theory. Ernst Marais made the same argument, submitting that Msiza SCA appears to suggest that a downward adjustment of compensation at market value, purely on the basis of land reform, is impermissible (Marias, Reference Marais2018).

The difference between the approach to the reduction of compensation in the LCC and the SCA in Msiza indirectly invites a conversation about whether land reform alone is sufficient justification for a significant reduction of market value (even a nominal amount of compensation). Interestingly, in this respect, in Du Toit, a so-called non-land reform case, the Constitutional Court was willing to recognise a significant reduction in the market value of the gravel because it held that the public interest in the building of roads was important for the economy and the improvement of the road system in general (Du Toit, para. 51). This case is clearly an outlier, and the interpretation of the purpose of the expropriation in relation to the determining compensation has been criticised. Van der Walt, for instance, argues that the interpretation of this factor in the calculation of compensation in Du Toit is unconvincing from a practical and economic perspective (Van der Walt, Reference Van der Walt2011: 514). He goes even further to argue that expropriation for land reform purposes without compensation will, in most instances, be unconstitutional. This is because all the factors have to be considered, and ‘land reform should therefore not on its own imply that compensation is not required’ (Van der Walt, Reference Van der Walt2011: 518). These arguments made by leading scholars on expropriation law and compensation for expropriation have huge implications for the assertion that expropriation at nil compensation is already possible under the current legal framework. In fact, it negates entirely any possibility that awarding nil compensation for expropriation is possible within the current framing of section 25 or the current Expropriation Act. This is not because it is theoretically impossible, but perhaps because it is difficult to conceive of examples where this would be possible.

As indicated earlier, the question remains: Can the purpose of the expropriation (alone) justify a (significant) reduction in compensation? Du Plessis asserts that courts dealing with this factor in the determination of compensation tend to confuse the requirement of public purpose/public interest and public purpose as a factor in calculating compensation for expropriation (Du Plessis, Reference Du Plessis, Hoops, Marais, Mostert, Sluysmans and Verstappen2015a: 369–87). She uses the examples of Du Toit and Mhlanganisweni Community to argue that the interpretation of public purpose when determining compensation for expropriation is misconstrued in both cases. In Du Toit, the court’s reasoning is problematic because it would mean that in all cases where the expropriatee has property necessary for the upkeep of national resources (or assets), he can expect compensation that is below market value (even significantly so). The decision in Mhlanganisweni Community is disconcerting because it would mean that where property is expropriated for land reform purposes, it should be treated the same as non-land reform expropriations, with the potential that the state may have to pay full market value for those properties in all instances. She considers both interpretations unfair and confusing – Du Toit because one individual is unduly burdened with the task of paying for the upholding and maintenance of a national asset that should be borne by the general tax-paying public, and Mhlanganisweni Community because ‘in view of the history of the privileged land ownership in South Africa and the constitutional imperative to transform, one should acknowledge that market value cannot be treated as a strict requirement’ (Du Plessis, Reference Du Plessis, Hoops, Marais, Mostert, Sluysmans and Verstappen2015a: 379).

An alternative approach to the role of public purpose as a factor in determining compensation may be to distinguish ‘run-of-the-mill’ or ‘business-as-usual’ expropriations and land reform expropriations (Du Plessis, Reference Du Plessis, Hoops, Marais, Mostert, Sluysmans and Verstappen2015a: 380). In non-land reform expropriations, the payment of market value may reflect just and equitable compensation as market value may strike the most appropriate balance between the interests of the public and the landowner affected by the expropriation. This is if there are no other factors that nonetheless justify a downward adjustment of market value in these instances. In land reform expropriations, where there may be other considerations at play, and the protection of existing property rights must be assessed in light of the promotion of social justice and transformation, a different interpretation of public purpose may be required when calculating just and equitable compensation. Reconciling the opposing claims in a just and equitable manner may require a more contextual, balancing approach that is sensitive to the task of promoting the spirit, purpose and object of the Bill of Rights (Du Plessis, Reference Du Plessis, Hoops, Marais, Mostert, Sluysmans and Verstappen2015a: 387). A downward adjustment may be more appropriate in the latter case than the former – as is, in fact, illustrated by the LCC in Msiza. This may be one approach to determining when compensation below market value would be justified. Another (or perhaps supplementary) approach would be to provide guidance in legislation on more specific instances where compensation below market value is plausible. Either way, what is clear is that courts need some more direction in this regard; otherwise, we may continue to see a natural inclination towards market value compensation.

The Suggested Way Forward: A New Expropriation Bill?

Du Plessis points out that it is time for the legislature to deal with compensation for expropriation in a pertinent manner. She notes that ‘[t]he legislature can do this by making sure it provides clear guidelines on the calculation of just and equitable compensation, rather than a mere “copy and paste” of Section 25(3)’ (Du Plessis, Reference Du Plessis, Hoops, Marais, Mostert, Sluysmans and Verstappen2015a: 387; and see Du Plessis, Reference Du Plessis2014). I would agree with Du Plessis and take it a step further. A new Expropriation Bill could potentially provide greater clarity regarding compensation for expropriation in the land reform context. It could do so by providing more indication of how the different factors relate to one another, especially if the Bill is to provide further guidance to courts regarding the relative importance of the factors listed in section 25(3) when it comes to calculating the amount of compensation in land reform expropriations. I think the Bill could even do more than that. It could guide the courts in establishing when nil compensation should be a viable option.

There are relatively few instances in which I envisage that nil compensation can be awarded, especially given the tendency of courts to compensate individuals for their loss experienced as a result of the expropriation, as highlighted in the chapter thus far. However, we do see some examples. Clause 12 of the latest Expropriation Bill aims at replacing section 12 of the 1975 Expropriation Act. The Bill is not perfect, but it does lay down the principles that must be adhered to when determining compensation, and in this respect it is certainly more aligned with the Constitution than the existing legislation. The Bill makes it clear that the compensation standard is just and equitable and not market value, thereby bringing it in line with the Constitution to a much greater extent than the current Expropriation Act does. Of particular interest for the purposes of this chapter are the examples listed in clause 12(3), which indicate the instances where nil compensation is plausible. It is important to note that there is still some discretion in terms of the Bill to determine when it may be just and equitable for nil compensation to be paid. Therefore, clause 12(3) is peremptory but not exhaustive. This provision leaves the discretion to the expropriating authority to determine whether the compensation will be nil. Since the expropriating authority is left with a discretion, I would argue that it may be even more helpful to have guidelines on how such a discretion must be exercised.

Clause 12(3) of the Expropriation Bill is relevant when thinking about instances where nil compensation may be applicable and reads as follows:

These instances are not without criticism but may be the starting point when considering possibilities where nil compensation is envisaged.Footnote ¹⁰ Clause 12(4) is particularly interesting if one considers some of the issues I mentioned in relation to the Msiza judgment. Clause 12(4) states that when a court or arbitrator determines the amount of compensation in section 23 of the Labour Tenants Act, it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances. A number of questions arise: First, this section brings claims of labour tenants under the purview or possibility of nil compensation. However, given the difficulty portrayed by courts in even reducing market value, never mind ordering nominal or nil compensation, it is not clear exactly how this provision is going to take us further in terms of assisting courts to deviate from market value. Second, questions may arise about whether a principled or default approach in favour of nil compensation in the context of labour tenants is even the best example or category. In this regard, it is not evident why this group of claimants (namely labour tenants) are included when other groups of claimants, such as restitution claimants, are specifically not included.

These questions, together with those one can equally raise about some of the other categories listed in clause 12(3), are not irrelevant, but they arise only when we are willing to acknowledge that it is necessary to have the conversation about nil compensation in the first place. The point that I would therefore like to make is this: If we are willing to open up a conversation about instances where nil compensation is a possible or valid option, we need to potentially think about the following:

1. (i) Why do we need to recognise a principled approach to nil compensation?

2. (ii) How will we demarcate instances or provide categories suited for nil compensation on a more principled basis?

3. (iii) Should we leave an open-ended discretion, or formulate guidelines that are more specific, like all the instances that are currently listed in clause 12(3)(a)–(e) of the suggested Bill?

This chapter has highlighted at least one reason why it may be important for us to have a conversation about instances where nil compensation should be a more principled possibility. First, expropriation assumes compensation. Arguably, whenever you are in the realm of expropriation, there is an assumption of the obligation to pay (an amount of) compensation. The obligation to pay compensation, which ordinarily goes hand in hand with expropriation, is also why there were conceptual difficulties with introducing notions like custodianship (as distinguished from trusteeship or nationalisation) within the realm of expropriation law in 2021. While there is authority to concede that, on the one hand, compensation is not a prerequisite for expropriation in the technical sense of what comes first, and in a legal sense of recognising that expropriation has occurred even though compensation has not been determined or paid, we cannot get away from the fact that compensation is an integral part of expropriation. In the absence of any obligation to pay compensation, one would arguably not be talking about an expropriation but another form of limitation/interference with property rights. We see, for instance, in the Final Report of the Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) that ‘[t]he words “subject to compensation” and the presence of the word “amount” denote that compensation is indivisible from expropriation’ (PAPLRA, 2019: 71). Compensation can therefore be a stumbling block to the full enjoyment of the benefits of expropriation, especially in the land reform context. We see this unfold in the Msiza judgment.

The Final Report of the Advisory Panel went on to mention that section 25 is a compensation-based clause and that it is ‘highly unlikely and improbable that there could be a plethora of circumstances that would lead to nil compensation’ (PAPLRA, 2019: 72). The presence of a clause dedicated to nil compensation would therefore provide clarity on instances where despite the obligation to pay compensation for expropriation, there may be instances of nil rand compensation. Those instances can then be justified and demarcated more clearly, and we should stop trying to insist that it is already theoretically possible when legally it is unlikely. At this stage of the developments in this area of the law, it is no longer controversial. I think that is one of the reasons we have seen various permutations of nil compensation in a number of Bills over the last couple of years (including, for instance, the Bills aimed at amending expropriation legislation and, of course, the various Bills aimed at amending section 25 of the Constitution), all of which contain varied provisions with possibilities for nil compensation.

The fact that expropriation is essentially compensation-based, coupled with the difficulty that courts have in determining compensation that is not (always) related to market value, suggests that it may be necessary for us to engage more directly with the idea of nil compensation in a much more open, honest and principled manner. I think there is enough evidence to show that this option is not only politically driven but, in fact, legally necessary.

Transformation and Section 25 of the Constitution

Section 25 contains three primary pillars, which are a vehicle for transformation. First, it provides in section 25(3) that where property is expropriated, the compensation payable must reflect an equitable balance between the public interest (that is, the purpose for which the property is expropriated) and the interests of those affected (that is, the landowner’s loss as a result of the expropriation). Section 25 lists five factors (which rank equally) in determining what will count as ‘just and equitable’ compensation. Market value is only one of these factors. The mechanism envisaged in section 25 is a flexible one that permits payment of compensation on a scale which can be adjusted based on the circumstances of each case, ranging from above-market value compensation to below-market value compensation and arguably even nil compensation in certain limited circumstances (Ngcukaitobi, Reference Ngcukaitobi2021: 184).

Secondly, section 25(5) expressly enjoins the state to enable citizens to gain access to land on an equitable basis by taking reasonable legislative and other measures within its available resources.

Finally, section 25(6)–(9) envisages the creation of a range of statutes aimed at transforming land ownership patterns through restitution, strengthening tenure security, and achieving broader land and water reform measures. Some of these statutes have now been created – including the Extension of Security of Tenure Act 62 of 1997, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, the Land Reform (Labour Tenants) Act 3 of 1996 (LTA), the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA), the Upgrading of Land Tenure Rights Act 112 of 1991 (ULTRA) and the Restitution Act 22 of 1994.

However, a key provision that has remained under-utilised is section 25(3), which allows for a flexible compensation regime guided primarily by considerations of justice and equity as opposed to market value. The intention of the drafters of the Constitution was clearly to enable a move away from the market-based pre-constitutional approach and to make land reform more affordable for the state when considerations of justice and equity permitted payment of below-market value compensation.

Historically and for policy reasons, the South African state has implemented what is known as the ‘willing buyer, willing seller’ principle of compensation for expropriation or acquisition of land, including for land reform purposes. This principle dictates that where property is expropriated in the public interest, the compensation paid for it should be equivalent to the price a willing buyer would have paid a willing seller for it on the open market. The Constitution does not mandate the willing buyer, willing seller principle. It was a policy choice that reflected the post-1994 shift of the African National Congress (ANC) from a radical Marxist-leaning liberation movement focused on expropriation-centred land reform towards a neoliberal and investor-friendly approach (Lahiff, Reference Lahiff2007: 1580). The approach has been criticised as a major obstacle to transformation in that it allows land reform to be ‘dictated by one of the most conservative elements in South African society [i.e. landowners] and one with a vested interest in maintaining the current – highly unequal – structure of the agrarian economy’ (Lahiff, Reference Lahiff2007: 1593).

Since approximately 2013, however, the ANC has indicated a desire to move away from the willing buyer, willing seller model towards one focused on payment of below-market value compensation – and possibly expropriation without compensation in some cases. This shift can be demonstrated with reference to recent legislative developments in this area, such as the Property Valuation Act 17 of 2014, which established the office of the Valuer-General for purposes of valuing land identified for land reform and sets out guidelines and factors for such valuations. Planned developments include the (now failed) amendment to section 25 of the Constitution and the Expropriation Bill B23-2020. The constitutional amendment aimed to insert a proviso in section 25 to the effect that compensation for expropriation for land reform purposes may, in certain circumstances, be nil. The Expropriation Bill that is under consideration by the National Council of Provinces at the time of writing aims to repeal the old Expropriation Act of 1975 and to bring the compensation regime in line with the principles espoused in the Constitution.

The question of whether the Constitution implicitly allows nil compensation is beyond the scope of this chapter. However, it is clear that section 25 contains a clear transformative mandate which enjoins the state to pass legislation aimed at land reform and enables it to pay below-market value where that would be just and equitable.

Support for the notion of a concerted and direct effort at reforming property laws finds expression in both the interim and current Constitutions. In other words, beyond the presence of section 25 within the Bill of Rights, it was the intention of the drafters of the Constitution that Parliament and the Executive would, in parallel (with the promise of a constitutional interpretation and application of laws by the courts), contemporaneously seek to either amend and/or repeal laws that work at odds with the constitutional framework after the dawn of democracy.

Schedule 6 of the Constitution is a provision that is hardly considered, debated and applied in the context of property law and land reform, yet it provides a useful lens within which to analyse the role of the law in the discussion on the rights and wrongs of property law in South Africa and how to address the dichotomy between land reform and property laws.

Schedule 6(2)(1)(a) of the Constitution provides that ‘all law that was in force when the new Constitution took effect continues in force, subject to any amendment or repeal and … consistency with the Constitution’. The drafters of the Constitution, therefore, understood that the promulgation of the Constitution and, in particular, section 25 could not, by its mere interpretation and application by the courts, simply eradicate the oppressive body of common laws and legislation that existed prior to 1996. Schedule 6(2)(1)(a) is, therefore, authority for the proposition that the Constitution necessitates a direct, focused and intentional need to transform, repeal and amend the common law in so far as it is at odds with the Constitution. In other words, it was not enough that section 25 was promulgated. It remained incumbent upon Parliament and the Executive pointedly to develop laws and policies aimed at achieving the goals of substantive justice. The court in SoobramoneyFootnote ³ (para. 8) pointed to the conditions of rampant poverty, racial disparities in wealth and the deplorable conditions in which the overwhelming number of South Africans existed prior to the adoption of the Constitution. In essence, therefore, while the law would be developed and interpreted as provided for in section 39(2) of the Constitution,Footnote ⁴ positive action and conduct in the form of pointed legislation, policy and common-law reform were required. This chapter assesses whether Parliament has exercised its powers adequately to bridge the dichotomy between property laws and land reform in a transformative and meaningful way.

We have briefly discussed the transformative potential of section 25. While section 25(1) of the Constitution protects against the arbitrary deprivation of property unless, by a law of general application, it is useful and necessary to delve deeper and to assess the transformative potential and aspiration of this protection to have meaning and substance, in a large-scale and intentional way. The constitutional provision must be applied within its historical context, especially in light of widespread inequality and an inequitable and skewed property rights regime. The Presidential Advisory Panel on Land Reform and Agriculture (PAPLRA) states that ‘an estimated 60% of South Africans have no recorded land or property rights’ (PAPLRA, 2019: ii). This endeavour necessitates an assessment of the status of the current property rights regime in South Africa and if the regime, in and of itself, impedes or elevates land reform objectives. It is trite that Roman-Dutch law is a notable source of the South African law of property. The existence of the Constitution does not, on its own, automatically eradicate or dismantle the legacy of inequality which the South African law of property in its current state carries.

Left unchallenged, common-law principles, in their interaction with the structure of South African property law, particularly as they relate to ownership, only serve to perpetuate inequality and the exclusion of the majority of South Africans. Sachs J wrote in the leading Port Elizabeth Municipality case:Footnote ⁵ ‘complex socio-economic problems … lie at the heart of the unlawful occupation of land in urban areas’; and under apartheid dispossession was nine-tenths of the law.

Sachs J was of the view that Roman-Dutch law conceptions of the ownership of property may appear neutral on the face of it, but in fact they carry racist notions in their essence (para. 10). This chapter asserts that common-law conceptions of ownership continue to find application in commercial, formal sectors of society and are enjoyed largely by the economically active and white minority,Footnote ⁶ while the black majority has largely remained in the periphery of property law protection, relying heavily on the elusive land reform promise. In 1997, the year that the Constitution came into force, it is estimated that 32 per cent of South Africa’s population lived in the former TBVC (Transkei, Bophuthatswana, Venda and Ciskei) states and that 63.6 per cent of those inhabitants did not enjoy formal property rights protection (PAPLRA, 2019: 69). This statistic is juxtaposed against approximately 72 per cent of land being held privately in freehold and leasehold.

Schedule 6(2)(2)(b) provides that: ‘old order legislation that continues in force … continues to be administered by the authorities that administered it when the new Constitution took effect’. Schedule 6(2)(2)(b) fortifies the view espoused in this chapter that the mere existence of the Constitution and, indeed, the provisions of section 25 were understood by the drafters of the Constitution not as a means to an end, but rather that there needs to be a revision, reimagining, reworking of common-law principles of property law that continue to permeate and define social and economic relations twenty-six years after the promulgation of the Constitution. In applying the principles of transformative justice discussed earlier, one can thus opine that the transformative endeavour must entail assessment and revision of the private and common-law principles of property which permeate the lived experiences of South Africans. In this vein, an over-reliance on the courts, and in particular the Constitutional Court, to interpret provisions of section 25 of the Constitution would not serve to speed up the slow pace of land reform. This is in the context of an overwhelming majority of historically dispossessed South Africans who have little to no access to the courts to benefit from the development of the common-law notions of ownership and the possible inclusion of indigenous thought systems into South African property law via the judiciary.

With the Constitution being a court of appeal and of final instance and section 25 being a constitutional provision, it bears mention that it would be a hefty burden on the judiciary to single-handedly carry the task and delivery of transformative justice and land reform, without Parliament and the Executive actively undertaking a review of current property laws to bring them in line with South African realities. This would entail South African property law reflecting in policy the values and principles that emanate from indigenous South African systems of tenure (Mabasa, 2021: 67).

This chapter attempts to bring to the fore the inherent, underlying conceptual, legal and philosophical differences between property law and land reform, and ultimately calls for a coherent, purposive upliftment and reimaging of property laws to strengthen land reform objectives.

Baleni v Minister of Mineral Resources

This matter dealt with an Australian company’s application for a mining right over communal land in the Xolobeni area in the Eastern Cape. The main issue was whether mining rights could take precedence over informal land rights. The community argued that the granting of the mining right amounted to a deprivation of their informal rights to property in terms of section 2(1) of IPILRA. Considering this, the community argued that its consent was required before the mining right was granted. The mining company opposed the community’s view on the basis that section 23 of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) only requires consultation with the affected community prior to awarding a mining right and not during the application process for that right. It also argued that the rights in the MPRDA trump IPILRA on the basis that the MPRDA is the chief statute governing mining and that the MPRDA provides in section 4 that the interpretations consistent with its objects must be preferred over interpretations inconsistent with those objects. The court ruled that mining operations interfere substantially with the agricultural activities and general way of life of the community, which constitutes deprivation as espoused in section 25 of the Constitution. Furthermore, the court stated that both IPILRA and the MPRDA are statutes aimed at redressing the South African history of economic and territorial dispossession under apartheid and, as such, should be read together. Moreover, IPILRA places an additional obligation on the Minister of Mineral Resources to seek the consent of affected communities in terms of customary law as opposed to mere consultation as required by the MPRDA. Where land is held on a communal basis, the community must be allowed to consider the proposed deprivation and make a collective decision regarding their custom and community on whether they consent to the proposed disposal of their land. Consequently, the Minister was prohibited from granting a mining right to the mining company until the company had complied with the provisions of IPILRA.

The Baleni judgmentFootnote ⁷ was a ground-breaking precedent which affirmed the rights and interests of communal and informal land rights holders and emphasised the importance of consultation with such communities. In fact, the rights of such communities have been elevated above common-law landowners in that what is required is their consent as opposed to consultation only (para. 76). The result of this judgment is that a failure to obtain the consent of the community holding informal rights before granting a mining right may expose a mining right holder to judicial review and may ultimately prove fatal to such a mining right.

Maledu v Itereleng Bakgatla Mineral Resources

In this case,Footnote ⁸ Bakgatla Mineral Resources held mineral rights in respect of land that was registered in 1919 in the Ministry of Rural Development and Land Reform and held in trust on behalf of the Bakgatla-Ba-Kgafela community. In preparation for its mining activities in 2008, Bakgatla Mineral Resources concluded a lease agreement with the Bakgatla-Ba-Kgafela Tribal Authority and the Minister. In 2014, when preparation for full-scale mining operations commenced, these operations badly impacted the farming operations of the community, and they obtained a spoliation order against Bakgatla Mineral Resources. In retaliation, Bakgatla Mineral Resources lodged an eviction application in the High Court to interdict the community from entering the farm.

The community, however, argued that the Tribal Authority did not have sufficient authority to speak for them and that they did not consent to mining on their land – they had not been properly consulted as was required under the terms of the MPRDA. The mining companies had failed to establish that the community had had a reasonable opportunity to participate in the resolution which authorised the conclusion of the surface lease agreement.

The High Court granted the application, and the Supreme Court of Appeal (SCA) refused to grant leave of appeal of the High Court’s decision, so Bakgatla Mineral Resources approached the Constitutional Court, which granted the leave to appeal.

The apex court identified the issues for determination as, first, whether the dispute resolution mechanism created by section 54 of the MPRDA was available to Bakgatla Mineral Resources. Secondly, whether section 54 precluded Bakgatla Mineral Resources from approaching the courts for an eviction order without first exhausting this process and, lastly, whether the community had consented to being deprived of their land rights in the farm in terms of section 2 of IPILRA.Footnote ⁹

The court found that section 54 of the MPRDA employs mandatory language; therefore, this dispute resolution mechanism must be exhausted before approaching the courts for redress. In this regard, the court held that Bakgatla Mineral Resources was obliged to take all reasonable steps to exhaust the section 54 process, which they had already initiated before approaching the court, and while this process is still undergoing, mining operations cannot proceed as this would undermine the independence of the section 54 process. Over and above this, section 2(4) of IPILRA required the community to have been given sufficient notice and be afforded a reasonable opportunity to participate in person or through representation in the meetings where decisions to dispose of their land were taken. In the circumstances, there was no evidence that this process had taken place, so the decision of the High Court was overturned.

Maledu again emphasised the importance of proper consultation with affected communities, particularly those that hold informal rights under IPILRA. It recognised that tribal authorities do not automatically speak for the communities they ostensibly represent and rejected the old approach of concluding agreements with tribal leaders and authorities without consultation with communities themselves. It also highlighted the importance of exhausting the internal appeal process under section 54 of the MPRDA.

Rahube v Rahube

This matter involved siblings, Ms Matshabelle Mary Rahube and Mr Hendrina Rahube, who lived in a property in 1970.Footnote ¹⁰ When the grandmother passed on in 1978, there was no documentary proof of her ownership. Ms Rahube moved out of the home in 1973 and moved back in 1977 when her marriage broke down. Mr Rahube became the owner of the property by virtue of his land tenure rights having been converted to full ownership under section 2(1)(a) of ULTRA, which provides for the automatic conversion into ownership of any land tenure right.

His tenure rights were conferred by a deed of grant, which provided for the issuing of a deed of grant in respect of residential units but limited its issuing to the head of the family who desires to purchase a dwelling for occupation by him and members of his family for residential purposes.

The High Court had declared section 2(1) of ULTRA unconstitutional in that its inherently gendered automatic conversion mechanism was inconsistent with the right to equality in section 9 of the Constitution. The basis for the declaration of invalidity was that a woman could, in terms of customary law, not be a ‘head of the family’, thus perpetuating the exclusion of women from land rights ownership. To this end, the High Court reasoned that the conversion of tenure rights did not make provision for a dispute resolution mechanism. It defied the audi alteram partem principle, and the court accordingly held that it was inconsistent with the right of access to courts in section 34 of the Constitution.

Thereafter, the Constitutional Court was approached to confirm the High Court’s order. Here the Constitutional Court held that the Proclamation envisaged a situation where only men could be the head of the family, with women relatives and unmarried sons falling under their control. Consequently, a provision in the statute that differentiated between groups of people did so without a legitimate governmental purpose and is irrational and unconstitutional due to its inconsistency with section 9(1). Moreover, it would undermine the purpose for which ULTRA was enacted – as legislation focused on land reform to redress the injustices caused by the colonial and apartheid regimes. On this basis, the Constitutional Court confirmed the order of the High Court.

Mwelase v Director-General for the Department of Rural Development and Land Reform

This decision, which was the last judgment delivered by Cameron J on his last day as a Justice of the Constitutional Court, involved labour tenants who all occupied land on the Hilton College Estate in KwaZulu-Natal.Footnote ¹¹ These labour tenants lodged applications under the LTA with the Department of Rural Development and Land Reform before the cut-off date of 31 March 2001. However, the Department failed to process the applications submitted before the cut-off dates. This then necessitated the labour tenants approaching the Land Claims Court (LCC), challenging the Department’s failure to process their applications in time.

Because of this failure, the LCC ordered the appointment of a Special Master for labour tenants to assist the Department in implementing the LTA. However, the LCC found that the labour tenants had not established that the Minister was in contempt of its order, and the SCA unanimously dismissed the appeal against the LCC’s exoneration of the Minister. Subsequently, the labour tenants approached the Constitutional Court for leave to appeal against the LCC and SCA findings.

The Constitutional Court delivered a scathing judgment in which it expressed its frustration with how poorly the government is administering labour tenant applications as well as other forms of land reform. To this end, the court criticised the government’s failure to protect and secure the informal land rights of the destitute and to cure landlessness that was created by the apartheid system.

Delius and Bernart (Reference Delius and Bernart2021: 100) suggest that legislative reform is a route to enhance land rights and that land rights could be converted into privately held titles. This chapter supports the notion of reforming current property laws to recognise and protect land rights and, as such, recognise ‘family rights’, family grazing land and a multitude of forms of tenure.

Introduction

Justice does not define itself and is contextual. Different contexts might require different kinds of justice. Different kinds of justice address different needs, and sometimes different forms of justice overlap (Villa-Vicencio, Reference Villa-Vicencio, Doxtader and Villa-Vicencio2004: 67). There are also individual and communal demands for justice, and these often compete. To complicate things, political and economic considerations often impact the form of justice required to address a situation. Therefore, the forms of justice listed here should not be regarded in silos and are by no means exhaustive but add to the conversation reflecting on the forms of justice underlying section 25.

Transitional Justice

New regimes often face challenges in redressing victims of state wrongs inflicted by previous regimes. International law obligates successive states to repair harms caused by previous regimes (Teitel, Reference Teitel2000: 119). On a national level, states are often torn between the backwards-looking purpose of compensating victims to address past state abuses and the state’s political interests that require it to look forward. This conversation also sits with the complexity of individual and collective dilemmas (Teitel, Reference Teitel2000: 119). With transitional justice, corrective aims are balanced with forward-looking transformation aims. It also mediates individual and collective liability (Teitel, Reference Teitel2000: 119).

Transitional reparatory justice plays a complex role in this regard. It tries to mediate the repair needed between victims and communities, ties the past with the present, and lays the foundation for redistributive policies (Teitel, Reference Teitel2000: 119). Reparatory goals often need to be balanced with economic concerns, and this balance of interests is not static (Okun, Reference Okun2015).Footnote ³ This all needs to occur within the rule of law, which, during a time of transitional justice, is also concerned with societal reconciliation and economic transformation (Teitel, Reference Teitel2000: 132).

In this sense, transitional justice deals not only with redress. It is also aimed at changing society. Transitional justice not only wants to redress an injustice, it also wants to change society and re-legitimise the law.

Moreover, the passage of time can create problems with the ability of transitional reparatory projects to address intergenerational justice. In conventional justice settings, the direct wrongdoers or the wrongdoers’ political generation provide reparations to the victims. Over time, the identity of the beneficiaries of the reparatory system and those who will be held liable changes (Veraart, Reference Veraart2009: 56). It then leads to a system where the generation that might not have personal responsibility must pay for past wrongs (Teitel, Reference Teitel2000: 139). Ideally, transitional justice needs to be effected as soon as possible after the end of the wrongdoing. Intergenerational justice becomes important when wrongs are not effectively dealt with as soon as possible.

Intergenerational justice also speaks to the problem of the current generation making sacrifices based on other rationales (Teitel, Reference Teitel2000: 140). Successor generations assume the obligations of the past because evil legacies have implications for long-standing societal concerns and therefore have implications for the current and future generations. This is a collective responsibility, not an individual one, and if unaddressed will lead to the sense of injustice being heightened (Teitel, Reference Teitel2000: 140). It seeks to repair the system rather than change it radically.

Thus, over time, in most reparatory projects, the wrongdoers no longer pay; the innocent people do, and the benefits of the reparations do not go to the original victims but to their descendants. This leads to reparatory projects looking more like social distribution and political projects than any form of corrective justice. These distributive schemes are often controversial as people start to question, for instance, the fairness of allocating public and private benefits along racial lines. This much is also true for South Africa, even recently, after democracy (Teitel, Reference Teitel2000: 141). Race-conscious remedies can be justified when the people who suffered the wrongful race-based harm have a right to reparations from those who harmed them. This leaves the question: when there are ongoing effects of prior official discrimination, how do we deal with it if the original wrongdoers are no longer there? In other words, how do we deal with the legacy of unrepaired injustices in a time of unresolved transitional reparatory justice? (Teitel, Reference Teitel2000: 141). Is this the place of transitional justice, or does transitional justice consist of specific mechanisms built for a specific reason, namely transitioning from one (unjust) system to another (just) system? A strong argument can be made in this regard (Evans, Reference Evans and Evans2019: 8).Footnote ⁴

In this context, one can argue that South Africa is ‘post-transition’ as far as the traditional, transitional justice mechanisms such as truth commissions, amnesties and reparations are concerned (whether concluded successfully or not) (Evans, Reference Evans and Evans2019: 2). This might then require a move to another form of justice.

Restorative Justice

Restorative justice (Murphy, Reference Murphy, Corradetti, Eisikovits and Rotondi2015)Footnote ⁵ also works within the realm of transitional justice. While the two concepts share certain underlying normative values, the two terms should not be used interchangeably. Some scholars argue that restorative justice is unsuitable for transitional problems because it is an underdeveloped concept in such settings and does not necessarily allow for punishment, which might be required in specific transitional contexts (Murphy, Reference Murphy, Corradetti, Eisikovits and Rotondi2015). The role of forgiveness in restorative justice, which might not be desirable in transitional justice settings, is also critical.

Restorative justice is context insensitive, while transitional justice is contextual (Murphy, Reference Murphy, Corradetti, Eisikovits and Rotondi2015). Restorative justice focuses on the relationship among the offender, the victim and the community in which the offence is committed (Walker, Reference Walker, Buhlungu, Daniel, Southall and Lutchman2006: 383). This means justice is fundamentally about repairing damaged relationships and addressing wrongdoing to restore a disrupted equilibrium. Restorative justice calls for balance, harmony and reconciliation (Pienaar, Reference Pienaar and de Ville2015: 157).Footnote ⁶

Restorative justice is victim-focused, giving the victim a voice in the restoration process. It asks the victim what he or she requires to make amends. It also requires the perpetrator to take responsibility, apologise, make good (Pienaar, Reference Pienaar and de Ville2015: 157), and thereby restore the offender’s dignity and sense of self-worth (Zehr, Reference Zehr1990). The key aim of restorative justice is forgiveness,Footnote ⁷ rebuilding or building bonds and providing for measures such as restitution payments to restore the relationship (Brathwaite, Reference Brathwaite2002).

The call for restitution focuses on the restoration of dignity (Gibson, Reference Gibson2009; Dikoko v MokhatlaFootnote ⁸). Pienaar (Reference Pienaar and de Ville2015: 14) argues that restitution measures are not exceptions to property guarantees, but rather natural consequences. Redress follows naturally in a new constitutional dispensation from the property clause.

Restorative justice is primarily concerned with social relationships – restoring these relationships, but also establishing or re-establishing socially equal relationships (Llewellyn, Reference Llewellyn1998: 1, 31, 33, 36).Footnote ⁹ Focusing on social equality means it is important to attend to the nature of the relationship between individuals, groups and communities. This requires a focus on the wrong and the context and causes of that wrong (Llewellyn, Reference Llewellyn1998: 1).

Since it is about restoring dignity, respect and relationships, the question of what is required to restore relationships will be context dependent. Restoring does not mean restoring the position as it was before the wrong but is focused on working on ideal social relationships (that might have been radically unequal to begin with, before the wrong) (Llewellyn, Reference Llewellyn1998: 3). Restorative justice, therefore, not only has a strong moral component to it but also is, like transitional justice, oriented towards the future. It offers a relational view of justice (Harris, Reference Harris1987: 27–38; Nedelsky, Reference Nedelsky, Hart and Bauman1993: 13; Koggel, Reference Koggel1997; Llewellyn, Reference Llewellyn1998: 1), aiming to protect the human relationship.

Restitution is an important part of the restorative justice process. However, there are different understandings of what ‘restitution’ entails in the restorative justice context (Llewellyn, Reference Llewellyn1998: 22). Restorative justice is also not only concerned with restitution as the ultimate aim of justice (Llewellyn, Reference Llewellyn1998: 25). Restitution alone will also not bring about the restoration of social relationships. Restoration is thus not an end in itself but rather regarded as part of the requirement of justice. In this context, compensation is required to the extent that it enables restoration without creating new harm. While it looks at restoration, it is ultimately not concerned about the structural causes of crime (Coker, Reference Coker, Strang and Braithwaite2002: 144).

Retributive Justice

Retributive justice focuses on punishment, and very little is required from the wrongdoer – the wrongdoer merely has to endure the punishment (Llewellyn, Reference Llewellyn1998: 37). There is no need for a wrongdoer in such a situation to take responsibility for their actions (other than enduring punishment), which often leads to a wrongdoer focusing on the injustice they suffer because of the punishment (Llewellyn, Reference Llewellyn1998: 37). Punishment should be understood as any negative outcome imposed on a wrongdoer in response to the wrongdoing (Wenzel & Okimoto, Reference Wenzel, Okimoto, Sabbagh and Schmitt2016: 239).

It places the blame on particular individuals. It does not regard the wrongdoing in the context of a society that might be problematic and that might need social reform (Llewellyn, Reference Llewellyn1998: 37). Some argue that retributive justice is justified because wrongdoing merits punishment (proportionate to the wrongdoing) and that it is morally better if a wrongdoer suffers punishment than not (Rawls, Reference Rawls1995: 4–5).

Transformative Justice

Like transitional justice, transformative justice is concerned with addressing historical wrongs. But, unlike transitional justice, transformative justice focuses on socio-economic rights issues, is concerned with structural violence (Gready & Robins, Reference Gready and Robins2014: 1; for a detailed argument, see Evans, Reference Evans2016) and long-term change, and focuses on the participation of affected communities rather than on elite bargains (Evans, Reference Evans2016: 2).

Transformative justice seeks to understand the deep roots of the symptomatic problems in society and to break away from the traditions or customs that caused the pain. It goes further than transitional justice: instead of focusing on reconciliation and legal accountability, it focuses on the deep social inequalities and class structures (Garnand, Reference Garnand2021: 11). In other words, the focus is on correcting the injustices and transforming societies to overcome inequality and exclusion (Evans & Wilkins, Reference Evans and Evans2019: 140; Gready et al., Reference Gready, Boesten, Crawford and Wilding2012: 1). It requires ‘a more sophisticated understanding of the relationship between past, present, and future, and between continuity and change in post conflict societies’ (Gready et al., Reference Gready, Boesten, Crawford and Wilding2012: 3). More pertinently, it interrogates the structural violence that resulted from historical patterns to avoid repetition. To do this, transformative justice requires an engagement with the past and the present while establishing how the lingering past shapes the present (and invariably the future) (Gready et al., Reference Gready, Boesten, Crawford and Wilding2012: 3).

This fills the gap that transitional justice leaves, namely, how to address poverty and inequality as the inheritance of a violent or repressive past, since transitional justice is often more focused on peace-building and post-conflict reconstruction through democratisation and market liberalisation (Gready et al., Reference Gready, Boesten, Crawford and Wilding2012: 4). It goes further than restorative justice in that it does not seek to restore a specific relationship or time but to transform that which caused the injustice in the first place. Its aim is not to punish or retribute but to transform.

I now turn to the making of section 25 to assess what form of justice best describes the various eras of the making and understanding of section 25.

Introduction

The early 1990s was a time of significant change in South Africa as various interested parties contested the transition from an apartheid South Africa to a constitutional dispensation. The first attempt at such negotiations was the Convention for a Democratic South Africa (CODESA I), which set some ground rules going forward and established working groups to prepare for CODESA II. CODESA II, however, collapsed because of a lack of agreement on the size of the majorities necessary in an elected constitution-making body to adopt a new Constitution (Corder & Du Plessis, Reference Corder and Du Plessis1994: 6; see also Cachalia, Reference Cachalia1992; Welsh, Reference Welsh1992; Friedman, Reference Friedman2021). Eventually, a joint proposal was reached between the ANC and the government, resulting in a joint proposal for power-sharing and the establishment of a five-year interim government of national unity after electing a Constitutional Assembly. This led to the Multi-Party Negotiation Process (MPNP), tasked with crafting an interim Constitution.

Before briefly discussing the drafting process, it should perhaps be clarified from the outset that I subscribe to the view that Constitutions are living documents that often transcend their original meaning (Strauss, Reference Strauss2010: 1; see also Balkin, Reference Balkin2012, who supplements Strauss’ views). When we want to understand and interpret the Constitution, it is useful to understand what was intended when it was drafted. However, the language of the South African Constitution is open-ended enough not to require courts and the legislature to be bound by one unevolved meaning.

The Interim Constitution

In the late 1980s, the ANC outlined its vision for a Constitution (ANC, 1989; Klug, Reference Klug2000: 125).Footnote ¹⁰ These guidelines were contained in a 1990 document that focused on a Bill of Rights for South Africa (Constitutional Committee, 1991), with a revised Bill of Rights produced in 1992 (Sachs, Reference Sachs1992). This Bill protected the right to own private property and did not deal with the issue of land ownership (Mutua, Reference Mutua1997: 78). It did assure the owners that land restoration would be handled by a tribunal and be subject to the payment of compensation (Sachs, Reference Sachs1992: 222). It is with this that they entered CODESA.

Initially, the MPNP was advised against including a property clause in the interim Constitution. However, it was eventually added when it became evident that the National Party and the libertarian parties would not settle unless it was. Property rights were therefore guaranteed, and interference with such rights was circumscribed in detail.Footnote ¹¹ Expropriation was limited to ‘public purposes’ only, and the compensation standard was set at ‘just and equitable’ to establish a balancing effect (between the vested interests and legitimate claims) (Corder & Du Plessis, Reference Corder and Du Plessis1994: 183).

Section 28 did not make provision for land reform in the property clause (Corder & Du Plessis, Reference Corder and Du Plessis1994: 183). Instead, land reform was included in section 8(3)(b), the equality clause, and provided that ‘[e]very person or community dispossessed of rights in land before the commencement of this Constitution … [as a result of discriminatory legislation that existed before the commencement of the Constitution] … shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123’. In the interim Constitution, land reform was part of the question of equality.

The question of the type of justice was not articulated in the clause itself or the Bill of Rights, but the postamble of the Constitution focused on reconciliation and provided:

‘Just and equitable’ must be viewed in this context. The approach is restorative, not retributive. There was a need for substantive corrective justice, juxtaposed with white beneficiaries’ fear that transformation would involve material sacrifices. Nevertheless, there was also the knowledge that transformation in the form of restitution and redistribution would inevitably impact the wealth and privilege accumulated during apartheid. As van der Walt (Reference Van der Walt2009: 6) puts it:

At the beginning of the democracy, there were firm hopes that such an approach would lead to reconciliation. The Truth and Reconciliation Commission (TRC), founded on the values of restorative justice, played an important role in the transition (Du Plessis, Reference Du Plessis, Swart and van Marle2017).Footnote ¹² In its final report, the TRC stated that: ‘The tendency to equate justice with retribution must be challenged and the concept of restorative justice considered as an alternative … focusing on the healing of victims and perpetrators and on communal restoration’ (TRC Report, 1999b: ch. 5, para. 55). The TRC did seriously consider the calls for including victims of forced removals (TRC Report, 1999a: vol. 1, ch. 4, para. 54), but the TRC narrowed the mandate to ‘human rights violations committed as specific acts, resulting in severe physical and/or mental injury, in the course of past political conflict’ (TRC Report, 1999a: vol. 1, ch. 4, para. 55). It focused on ‘bodily integrity rights’ (TRC Report, 1999a: vol. 1, ch. 4, para. 56). It did not include questions of distributive justice (Madlingozi, Reference Madlingozi, le Roux and van Marle2007: 116) or consider the effects of the laws passed by the apartheid government. This was because it viewed itself as one of several instruments for transformation (TRC Report, 1999a: vol. 1, ch. 4, para. 55).

Thus, the TRC (s. 3(1)(a)) focused only on gross human rights violations (Lansing & King, Reference Lansing and King1998; Simcock, Reference Simcock2011),Footnote ¹³ looking for clear, individual victims and providing amnesty for identifiable perpetrators. It was focused on individuals, not on society, and did not address systemic issues. And while the deprivation of land was violent, one would suspect that it was not included in the TRC process due to the lack of physical violence that infringes on bodily integrity rights, where one perpetrator could be identified and victims could be neatly isolated.Footnote ¹⁴

It can be argued that the TRC was well aware of its limitations and allowed for other avenues to be used in pursuing justice (Simcock, Reference Simcock2011: 242). In other words, the TRC did not exclude reaching reconciliation through other avenues. There was also a realisation that the TRC could not lead to ultimate justice and, in some cases, might even hinder access to justice (Langa, Reference Langa2000: 353).Footnote ¹⁵

What was, however, left unaddressed was the suspicion that the legal order itself sanctioned the dispossession (Veraart, Reference Veraart2009: 48) and must now be trusted to restore it. This dispossession that took place through legislationFootnote ¹⁶ not only had an economic or punitive effect but was political in that it supported the apartheid project of separate development. It crushed the social fibre of communities and often led to perpetual poverty in once-stable families.Footnote ¹⁷ This has a generational spill-over that entrenches systemic inequalities unless properly addressed. Restoration of property thus plays a role in restoring dignity as it would enable individuals to participate in social and economic life and show a renewed commitment to human rights (Allen, Reference Allen2006: 5). Villa-Vicencio writes: ‘[H]uman security, dignity and political stability occur when basic material needs are met. … Bluntly put, a simple payment of reparations to victims of Apartheid, as important as this is, is not sufficient to restore the human and civil dignity of Apartheid’s victims. Reparation demands more’ (Villa-Vicencio, Reference Villa-Vicencio, Doxtader and Villa-Vicencio2004: 76).

The restorative justice model seemed to have limited application, with the government not responding to the Commission’s further recommendations on reparations (TRC Report, 1999b: vol. 5, para. 39).Footnote ¹⁸ This is particularly lamentable since reparations are an integral part of the ‘justice’ in restorative justice. The relationship between restorative justice and reparations is reciprocal (Llewellyn, Reference Llewellyn, Doxtader and Villa-Vicencio2004: 167). Arguably, in a restorative justice context, the payment of compensation would be a requirement. And as the goal is not to punish the wrongdoer (or the descendants of the wrongdoer), the amount must also not impede the restoration or redistribution of the land itself. The amount would be that which helps to strike this balance.

The Constitution

While not as explicit as in the postamble of the interim Constitution, such thinking was still possible in the Constitution. Section 25 (the ‘property clause’) both protects holders of rights in property (s. 25(1)–(3)) and initiates reformist imperatives (s. 25(5)–(8)). In the one-system-of-law view,Footnote ¹⁹ the two parts do not stand opposite each other but form part of the same constitutional goal and should be read together. This requires a balancing of rights. The court in AgriSA v Minister of Minerals and EnergyFootnote ²⁰ said:

Creative tension is visible in the compensation provision that requires balancing the public interest (in land reform) and the interest of those affected (the landowner and the possible beneficiary). This balancing seeks to avoid a zero-sum game, and it is a creative tension that should be balanced and reconciled as far as possible. Notions of justice should play a facilitating role in achieving this balance. But what justice?

Background

Decades of focused racial spatial planning and social engineering – apartheid (Van Wyk, Reference Van Wyk2020: 1–22), succeeding centuries of colonialism and imperialism (Terreblanche, Reference Terreblanche2002; Ngcukaitobi, Reference Ngcukaitobi2021) ultimately resulted in a complex (Pienaar, Reference Pienaar2014: 141–52), fragmented South African land control system (Pienaar, Reference Pienaar2014: 160–62). While an exploratory land reform programme was embarked on under the former Nationalist government in 1991, these initial steps were too few and too superficial, calling for a much more engrained, focused effort. A fully fledged land reform programme followed post-Constitution, embedded in the property clause, in section 25(5) on redistribution (Kotzé & Pienaar, Reference Kotzé and Pienaar2021: 278–322), section 25(6) on tenure reform (Hornby et al., Reference Hornby, Kingwell, Royston and Cousins2017) and section 25(7) on restitution (Walker, Reference Walker2008; Fay & James, Reference Fay and James2009). Section 25(8) furthermore provides for the reform of all natural resources to the benefit of all South Africans generally, and section 25(9) refers to legislation to be promulgated for purposes of the tenure reform programme.

Measures Protecting Vulnerable Occupiers

Property law and land reform are inextricably linked (Muller et al., Reference Muller, Brits, Pienaar and Boggenpoel2019: 675–84). Whether the South African Bill of Rights should embody a property clause, as well as the role and function thereof, was much debated (Chaskalson, Reference Chaskalson1994: 131, Reference Chaskalson1995: 222–40; Coggin, Reference Coggin2021). That debate revived, to some extent, when the amendment of the property clause was placed on the agenda in 2018, and a review committee was established accordingly.

A uniquely South African property clause, sculpted to deal with home-bred needs and demands, was confirmed in Certification of the Constitution.Footnote ⁴ Notably, this entailed specifically embedding a land reform programme in the property clause. Globally, property clauses are usually employed for one of two objectives: (a) to preserve and protect existing rights and interests or (b) to transform and enhance (Wilson, Reference Wilson2021: 19–20). Given the South African background and the fact that the majority of the sub-clauses in section 25 are indeed aimed at transforming and effecting change, and given that land reform is located in the property clause specifically, it is undeniable that the South African property clause is indeed an example of the second category of clauses (Van der Walt, Reference Van der Walt2012: 173; Wilson, Reference Wilson2021).Footnote ⁵ Thus, endorsing and promoting land reform and adjusting property constructs and relations are part and parcel of the national transformation endeavour. Subsection 25(5)–(9) very clearly places specific duties on the state to take reasonable steps to achieve set outcomes, including by promulgating relevant and appropriate legislation. Under section 25(5) and (6), various legislative measures were indeed promulgated to benefit vulnerable persons, persons occupying land that belongs to another, with consent or in accordance with a specific right to occupy (Pienaar, Reference Pienaar2014: 305–19; Muller et al., Reference Muller, Brits, Pienaar and Boggenpoel2019: 498–509; Muller & Viljoen, Reference Muller and Viljoen2021: 366–77, 380, 486–90; Wilson, Reference Wilson2021: 82–103)Footnote ⁶ including under ESTA (Muller et al., Reference Muller, Brits, Pienaar and Boggenpoel2019: 751–63; Muller & Viljoen, Reference Muller and Viljoen2021: 287–96; Wilson, Reference Wilson2021: 57–81).Footnote ⁷

Extension of Security of Tenure Act 62 of 1997 (ESTA)

Grobler v Phillips

Grobler v Phillips entailed an eviction application against an eighty-five-year-old widow, Mrs Phillips, who occupied property with her disabled son. Mrs Phillips had been in occupation of the property since 1947, when she was eleven years old. The appellant was successful with an eviction application in the magistrate’s court, after which the High Court set aside the eviction order on appeal. On appeal to the SCA, the order of the High Court was confirmed, on the basis that the granting of the eviction order was not just and equitable. That conclusion was reached because of the particular circumstances of Mrs Phillips, including the long period of her occupation, that she would have been protected under ESTA had township development not taken placeFootnote ¹⁴ and because of a verbal promise made to her by previous landowners that she would be able to continue residing on the property for the rest of her life. While that oral right to reside, habitatio, was not registered and recorded against the title deed of the property, and thus not enforceable against the current landowner, this factor, considered with the other factors, enjoined the court not to grant an eviction order. That led to the CC judgment, handed down in September 2022, by Tshiqi J.

The CC-decision first relayed the litigation history (paras. 6–20), highlighting that the landowner, Mr Grobler, had already purchased the property in 2008 and had since then been unable to use his land. Justice Tshiqi underscored that eviction applications always raised constitutional matters, in particular with respect to the primary home, and that it was in this light that the interpretation of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) was critical (para. 22). The court further highlighted that (a) the SCA specifically considered Mrs Phillips’ wish to remain on the property and not to be moved; and (b) that the SCA erroneously found that it was the High Court that had to exercise a discretion to grant an eviction order, whereas it was actually the magistrate’s court’s prerogative (para. 23). A rather formalistic, technical approach to the decision, before focusing on the question as to whether it was just and equitable to grant an order of eviction (paras. 33–47).

Notably, all relevant circumstances had to be considered in deciding whether it would be just and equitable to grant an eviction order. With reference to case law decided under ESTA and highlighting that the same considerations could be considered here as well, within the context of PIE, the CC underlined that the wishes or personal preference of unlawful occupiers were not relevant (para. 36).

Next, the CC dealt with the burden of providing alternative accommodation:

Regarding competing interests of parties, due regard must be had to the considerations of justice and equity, by striking a balance between the various rights (para. 39), a process that required ‘some give by both parties’ (para. 40). Over time, Mr Grobler made various offers to Mrs Phillips, including reasonable accommodation in a retirement centre for a period of twelve months provided that costs were limited to R4,000 per month; relocation costs; an upmarket apartment in a secure complex where Mrs Phillips could live for the rest of her life; and a choice from a list of properties in the vicinity constituting a two-bedroom dwelling in a good condition where she would have a lifetime right of residence (paras. 41–43).

Given all of the above, the CC concluded that the SCA had failed to balance the rights of both parties. Whereas Mr Grobler had been struggling to enforce his ownership for fourteen years, since he bought the property, Mrs Phillips would continue to enjoy a decent home:

Given all of the above factors and considerations, including that Mrs Phillips would not be rendered homeless as the offer of Mr Grobler still stood, the appeal was upheld and the eviction order granted.

Nimble Investments v Malan

After having resided on the farm in question since 1974, Mrs Malan received permission to continue occupying cottage 1 on the farm after her husband died in 2005. A previous attempt in 2006 to evict Mrs Malan was resolved when a lease agreement was concluded with respect to cottage 1. After the appellant bought the farm in 2008, negotiations relating to the evacuation of cottage 1, due to rezoning for purposes of establishing an Agri-Park and the extension of the highway came to naught. Renewed negotiations in 2016 resulted in the respondent agreeing to relocate to cottage 5. On the day of the relocation, members of the household started removing roof tiles, roof sheets and trusses from cottage 1, despite being ordered to stop by the farm manager in the presence of police. An unlawful structure, built from building materials taken from cottage 1, was constructed alongside cottage 5. Throughout this process, Mrs Malan reacted vehemently. When a letter insisting that the illegal structure be dismantled and the building material returned was ignored, respondents received notices to vacate cottage 5 as their occupation had been terminated on the basis of the respondent’s misconduct, which constituted a fundamental breach. At that time the respondent was sixty-eight years old. The Land Claims Court (LCC) set aside the eviction application during the automatic review process.Footnote ¹⁵

In the SCA, the minority judgment was handed down per Carelse AJA, with Mbatha JA concurring and the majority judgment per Schippers JA, with Dambuza JA and Eksteen AJA concurring. Carelse AJA was satisfied that Mrs Malan met the requirements for long-term occupation. Two further issues were also dealt with:

The court reiterated the well-established two-phased approach, underlining that the right of residence had to be terminated before the eviction notice could be issued. Before the termination of the right of residence, there were no discussions between the appellant and the respondents, and the respondents were not legally represented (para. 18). The respondents should have been granted an effective opportunity to make representations before their right of residence was to be terminated (para. 22). Accordingly, the minority judgment found it unnecessary to consider whether there was a fundamental breach of trust (para. 23).

The majority judgment highlighted some of the correspondence that occurred, inter alia a notice to Mrs Malan that her right of residence had been terminated on specific grounds, namely:

Failure to demolish the structure would lead to eviction proceedings. When the eviction proceedings commenced, the founding papers set out that the termination of Mrs Malan’s right of residence was just and equitable on three alternative grounds:

Mrs Malan opposed the eviction application, with legal representation, on the grounds that (a) she was a long-term occupier and (b) on a special plea in terms of section 8(5), namely that her right of residence could be terminated only on twelve calendar months’ written notice to leave the farm (para. 40).

The first question canvassed was whether there was a breach, which could not be remedied, as contemplated in ESTA (para. 46). This was relevant as it ultimately impacted on whether an eviction order would be just and equitable. Considering all relevant factors, including the history of the relationship of the parties, the seriousness of the occupier’s conduct and its effect on the parties and the present attitude of the parties to the relationship, as shown by the evidence (para. 47), the court concluded that it was not practically possible to restore the relationship between Mrs Malan and the appellant (para. 53). The SCA consequently found that the LCC had erred in finding that there was no fundamental breach in the relationship (para. 60).

The issue of whether the eviction order was just and equitable centred on the specific facts (para. 61). Notably, the legislature specifically provided for eviction on the grounds of a fundamental breach (para. 63). The court considered the conduct of both the appellant and the respondent, highlighting that the appellant offered to assist the respondent financially to relocate to serviced plots in the area, that the appellant upgraded cottage 5 with Mrs Malan’s approval, that it was only Mrs Malan who qualified as a long-term occupier under section 8(4) (paras. 63–65), and that the other respondents had been occupying property rent-free for many years despite the fact that they were employed elsewhere and received an income (para. 66). The court found that the LCC had failed to consider the evidence of the appellant’s interests in not permitting unlawful conduct, the erection of the illegal structure on the farm and the continued unlawful occupation thereof (para. 67).

Whether the eviction order was just and equitable also entailed the court considering why cottage 5 became prominent in the first place: the appellant was compelled to use that particular portion of the land where cottage 1 was located because of the widening of the road and in order to secure a long-term tenant necessary for its business.

The court was satisfied that no purpose would be served to remit the matter to the magistrate, also having regard to the delay of five years. The appeal thus succeeded, and the eviction order was reinstated.

Background

For centuries private individual title – ownership – has enjoyed a prominent position (see Shoemaker, Reference Shoemaker2021: 1698; Winchester, Reference Winchester2021). Winchester shows very clearly how the centrality of ownership, over centuries, has shaped the modern world: it has dominated approaches to settlement and invasion, demarcation, survey, deeds and registries and the science of mapping, ultimately impacting on all dimensions of daily life: influencing religion, belief, sovereignty, citizenship, franchise, war and peace (Winchester, Reference Winchester2021). Whereas private, individual title unlocked a magnitude of benefits and privileges, common or co-ownership, although still ownership, was just not on a par – as noted by Hardin to constitute the ‘tragedy of the commons’: ‘Common ownership remorselessly generates tragedy’ (Hardin, Reference Hardin1968: 1243). Furthermore, it was the ownership of land in particular that was sought after as ‘a necessity of all human existence, which is the original source of all wealth, which is strictly limited in extent, which is fixed in geographical position – land … differs from all other forms of property in these primary and fundamental conditions’ (Churchill quoted by Winchester, Reference Winchester2021: 180).

This also resonates with the South African concept of ownership, of private, individual title. Van der Walt highlights that, within the traditional notion of property, especially pre-Constitution, property rights are defined in terms of a hierarchy based on a binary position (Van der Walt, Reference Van der Walt2012: 114). Accordingly, having a property right entitles the holder to a remedy that will trump the interest of those who have no property rights or who have weaker rights. In the same vein, having a strong property right (like ownership) gives a remedy that will trump weaker property rights (like limited real rights) of others, just as even a weak property right (like a limited real right) gives a remedy that will trump the holders of non-property rights (like personal rights) (Van der Walt, Reference Van der Walt2012: 115). Overall, landowners were further expected and entitled to be in undisturbed and exclusive possession of the land, resulting in any interferences – particularly in the form of unlawful occupation of land – to be dealt with harshly and swiftly, in accordance with the ‘normality assumption’ (Van der Walt, Reference Van der Walt2012: 56–59). In this regard, common-law property law has prevailed as a rule and, in the process, failed to respond adequately to the needs of persons who do not hold ownership rights over land (Wilson, Reference Wilson2021: 43).

All of that stood to change in a new constitutional dispensation. While protective measures were most certainly embodied in section 25, authorised, focused and considered interferences were specifically provided for, and particular duties were placed on the state in this regard: to interrogate and to question the then-existing paradigm (Pienaar, Reference Pienaar2014: 820–22; Wilson, Reference Wilson2021: 57). Molusi v Voges underscored that common-law property rules were not relevant within the current eviction paradigm, given the transformative thrust of the property clause post-1994. That is the case specifically where ESTA and PIE are concerned. While both legislative measures were promulgated for particular reasons, providing procedural and substantive protective measures for inherently vulnerable occupiers, each has specific scopes and application: ESTA applies in rural areas, essentially on farmland, and specifically excludes townships, whereas PIE applies nationwide, encapsulating all land in South Africa when unlawful occupation takes place. Thus, depending on the specific location of the land, particular legislative measures would apply, whereas, conversely, others are excluded in principle. Therefore, although a new eviction paradigm emerged, and although land reform legislation would essentially embody the property clause’s transformative thrust, the legislation itself had limits, specifically regarding scope and application.

The Case of Mrs Phillips

Township expansion and urban development meant that ESTA, the protective measure specifically promulgated to protect vulnerable persons generally, but specifically after the age of sixty and who had been in occupation of land for more than a decade, was not available to Mrs Phillips.

A previous landowner endeavoured to assist Mrs Philips in providing some form of occupation for her lifetime. While the intention was clear, the arrangement was not formalised. The doctrinal approach to limited real rights and their enforcement against all third parties, including successors in title, meant that an oral arrangement embodied personal rights only in the absence of registration. Common law South African property law rules and principles underscore ownership as the core right, encapsulating a variety of entitlements, including the right to use and enjoy and the right to possess (Muller, Reference Muller2019: 44–46; Muller et al., Reference Muller, Brits, Pienaar and Boggenpoel2019: 103–108, 244–54; Pope & Du Plessis, Reference Pope and Du Plessis2020: 51–58, 94–99; Horn et al., Reference Horn, Knobel and Wiese2021: 27–50). While an owner could let go of one or more of such entitlements, thereby subtracting from the dominium, the implications thereof were likewise doctrinally determined. Granting a right to live in a house to someone, for a lifetime, would result in a limited real right for that particular individual, enforceable inter partes. However, for successors in title to be bound by this arrangement, the subtraction from dominium would have to be formalised, recorded and publicised for the world to take note of (Muller et al., Reference Muller, Brits, Pienaar and Boggenpoel2019: 244–54).

If ESTA did apply, Mrs Philips would have been a section 8(4) long-term occupier with concomitant protective measures. She would ultimately only be evicted in extraordinary circumstances. Under PIE, the Act that was applicable here, Mrs Philips would have had a valid defence if she was not an unlawful occupier – that is, if she had consent or another right in law to occupy. As highlighted above, she had neither: consent was specifically revoked by the new landowner and her life right, while relied on for many years, was not formalised and thus not enforceable against the current landowner. Had the life right indeed been registered, the normal common-law property law rules would have prevented this case going forward on an eviction basis. As previous case law has underlinedFootnote ¹⁶ (Boggenpoel & Pienaar, Reference Boggenpoel, Pienaar, Schlemmer and O’Brien2017: 321–32), a habitatio would then prevail, even and including against the landowner. Presently she was thus in unlawful occupation and stood to be evicted under PIE.

Yet in the SCA judgment Mrs Phillips, as unlawful occupier, was enabled to remain in occupation. Her informal right to occupy was balanced and weighed against the registered right of land ownership and has prevailed. It prevailed because of Mrs Phillips’ particular personal and socio-economic circumstances, coupled with the particular historical background of the relevant parcel of land. Such a scenario would have been unthinkable pre-Constitution.

But Mrs Phillips’ relief was short-lived as the CC upheld the appeal and confirmed the eviction order. That conclusion was reached by essentially highlighting the availability of alternative accommodation and approaching the investigation (and balancing act) from the landowner’s perspective. In this regard, paragraph 37 of the CC judgment, quoted earlier, employed by the CC in relation to the duty to provide suitable alternative accommodation, is especially interesting. Two aspects in particular are striking: Firstly, declaring that section 4(7) of PIE ‘clearly states that such obligation lies with a municipality, or other organ of state or another landowner’ is technically incorrect. Ironically, the CC quotes the whole of section 7(4) earlier in the judgment, in paragraph 28, reproduced here in full:

Accordingly, whether suitable, alternative land had been made available, by the persons or bodies mentioned, is one of the factors that could be considered in deciding whether the granting of an eviction order would be just and equitable in the relevant circumstances. Notably, the rest of the section also specifically lists the following factors to be taken into account: the rights and needs of the elderly, children, disabled persons and households headed by women.

Interpreting the specific part of section 4(7) of PIE as only indicating where the duty to provide alternative accommodation lies seems misplaced and specifically ignoring the second part of the section – particularly of relevance to the current facts – is problematic.

Secondly, stating that PIE was promulgated to protect private land ownership against arbitrary deprivation as a starting point is again misplaced. There is a huge body of law dealing specifically with the reasons for and motivations behind promulgating PIE (Pienaar, Reference Pienaar2014: 820–22; Muller et al., Reference Muller, Brits, Pienaar and Boggenpoel2019: 751–63; Muller & Viljoen, Reference Muller and Viljoen2021: 287–96). PIE was clearly promulgated for various reasons, including regulating unlawful occupation of land in a fair and humane manner.

The CC focused on the balancing of rights and considering all relevant facts and circumstances and in this process highlighted the various generous offers of accommodation made by Mr Grobler to Mrs Phillips. Mr Grobler is fortunate that he was able to do so – a generous litigant, who owned a variety of properties in single, private title. The CC underlined that Mrs Phillips could not choose where she wanted to live and that her wishes were irrelevant. Ironically, Mrs Phillips never really had a free choice of home and will again not have a free choice in where she is to be settled; and she is not and never will be a homeowner.

The crux here is the new eviction paradigm that emerged post-Constitution, which extends beyond formal, official, property law-endorsed rights and interests. The standard of what is just and equitable enables a court’s active participation in weighing and balancing rights. Yet, despite the new paradigm, the balancing act is still approached from the perspective of the landowner and how other rights could possibly weigh up to those of a landowner. In this balancing act, Mrs Phillips’ wishes are irrelevant. Approached in this way, non-ownership rights remain subject to landowners’ rights. This methodology is endorsed further when an investigation is approached from the departure that the relevant Act, PIE, exists to protect landowners’ rights.

The Case of Mrs Malan

Notably, Mrs Malan and Mrs Phillips were both elderly, vulnerable widows with extensive periods of occupation – respectively, just under fifty and seventy years. Insecure tenure prevails when the relationship between a landowner and tenant becomes strained and eventually unsustainable. In these instances, the breakdown of the relationship results in the loss of a home as well. That remains the case so long as tenants, especially vulnerable persons, depend on someone else to provide housing and shelter. In that regard, it is imperative for the relationship to be sustained on a basis of mutual respect and understanding – with both parties having reciprocal duties and obligations.

Essentially, both judgments have shown that whether a particular right or which specific right – be it ownership or an informal right – prevails is determined by the particular facts and circumstances on the one hand and the balancing or weighing exercise on the other. While the outcome of an eviction application may thus remain somewhat unpredictable and case-specific, because of the particular circumstances, the CC judgment has endorsed an approach that, in principle, continues to subject non-ownership rights to landowners’ rights.

Ironically, as in the Philips case, the specific legislative measure enacted to assist persons like Mrs Malan did not assist in this particular case. While farm workers routinely enter into lease agreements, problems prevail in that employment remains linked to accommodation. Accordingly, where difficulties are encountered in either of these dimensions, tenure insecurity invariably ensues. Under these circumstances, ‘just and equitable’ meant that considerations of the public interest in the broadening of a national road and private, commercial interests – by supporting a long-term business lease agreement, outweighed Mrs Malan’s occupational rights, particularly when her personal conduct was also taken into account. Despite the latter, for Mrs Malan the crux of the matter remained her relationship with the landowner, which placed an additional burden on the linkage of employment and accommodation.