Introduction
During his testimony in the South African Students Organisation trial, Steve Biko was called to the witness stand for the defence of nine black activists. At one stage, the prosecutor asked Biko to explain his stance on expropriation: ‘Is there any part of your programme which suggests that all private property must be expropriated, full stop?’ ‘I am not aware of this’, was Biko’s reply.
During interrogation, the court intervened: ‘I think your counsel is probably afraid to mention it. Isn’t it part of the policy to redistribute wealth?’ ‘That is correct’, Biko answered. The court was confused. ‘Now, how can you have a redistribution of wealth without taking it from somebody.’
Biko explained that taking from somebody without abolishing the principle of private ownership is possible. Explaining property, he answered, ‘my relationship with property is not so highly individualistic that it seeks to destroy others. I use it to build others’. The court seems to have accepted this but was still uneasy: ‘What about the White man’s property?’ Biko answered that it is possible that ‘certain people in the country according to whatever values are adopted at the time, own things that they should not have, which historically they have immorally got, to a point which cannot be forgiven’. Continuing this, Biko foresaw the possibility that a time might come when people might be told to ‘[g]ive it back; we will give you what we think it is worth, you know’. The government will pay the price that the government thinks it is worth (Arnold, Reference Arnold2017: 90). Biko foresaw some form of compensation, even if not full market value.
Years later, section 25 of the Constitution of the Republic of South Africa, 1996 (Constitution) shifted our compensation standard from market value to ‘just and equitable’ compensation. Our Constitution is thus a culmination of various conversations, compromises and contestations of the notion of justice that underlies the Constitution. This has certain implications for how section 25 should be interpreted, specifically our understanding of ‘just and equitable’ compensation.
The African National Congress’ (ANC) Nasrec conference in 2018 opened a conversation to reassess this notion of ‘just and equitable’ when the party made a policy decision to consider ‘expropriation without compensation’ (Slade, Reference Slade2019: 1, 3)Footnote 1 as one of the mechanisms to give effect to land reform (ANC, 2017; Du Plessis & Lubbe, Reference Du Plessis2021). This set a process in motion that eventually ended in the Constitution Eighteenth Amendment Bill (2021). This Bill was not voted on in the National Assembly at the end of 2021 and therefore lapsed.Footnote 2 Still, some valuable lessons can be learnt from this process, which will also become important for interpreting the Expropriation Bill (2020), once enacted.
I do not want to focus too much on the technicalities of the conversation or the broader issue of land redistribution – or what must happen to property once it is expropriated. Of course, with expropriation being part of a process to redistribute or return the land, it does not happen in a vacuum. When there is a need to include the ‘what after’ question, it will be briefly addressed. Instead, this chapter seeks to ask: If compensation must be ‘just and equitable’, what notion of justice informs our understanding of the clause? The focus is, therefore, on compensation for expropriation in cases where land is expropriated for land reform purposes.
The chapter discusses the various forms of justice: transitional, restorative, retributive and transformative. That is followed by a brief historical discussion on the making of section 25 of the Constitution to evaluate the concept of justice that underlies the provision for compensation for expropriation. I argue that the making of the Constitution Eighteenth Amendment Bill was also about reassessing the justice foundation of our Constitution, albeit in the language of expropriation without compensation.
Through this process, the argument is made that the initial concept of justice was transitional and restorative, but this has now shifted to transformative justice. This might influence our interpretation of section 25 of the Constitution and the legislation promulgated to give effect to it. I therefore suggest a preliminary observation on how to understand ‘just’ in the ‘just and equitable’ formulation of section 25(3), which, for the time being, remains unamended in the Constitution.
The chapter is structured as follows: it starts with a cursory overview of the four main types of justice that might apply to section 25. It then discusses the making of section 25 of the Constitution, starting with section 28 of the interim Constitution of the Republic of South Africa, Act 200 of 1993 (interim Constitution) and ending with the Constitution Eighteenth Amendment Bill. The focus is on the conversations that were had, which can give a glimpse into the type of justice envisioned. Then, focusing on specific submissions, the chapter applies the different notions of justice to ascertain if there is a certain leitmotiv (Du Plessis, Reference Du Plessis and Lubbe2015) of ‘just and equitable’. A case is then made to consider transformative justice as a theory that informs the ‘just’ in ‘just and equitable’.
Notions of Justice
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.
The Making 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:
This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans … These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.
‘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:
A political settlement could bring about a peaceful transition to a democracy based on human dignity and equality without necessarily destroying existing privilege. A peaceful transition therefore became possible on the basis of agreement that political change, while inevitable, need not be disastrous, but it was clear that such a transition would scarcely enjoy any legitimacy unless it could provide real benefits for poor and marginalised members and sectors of society. A peaceful political transformation thus inevitably had to include very substantial, even dramatic, corrective measures that would change the existing distribution of wealth visibly and substantively.
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:
The approach to be adopted in interpreting section 25, with particular reference to expropriation, is to have regard to the special role that this section has to play in facilitating the fulfilment of our country’s nation-building and reconciliation responsibilities, by recognising the need to open up economic opportunities to all South Africans. This section thus sits at the heart of an inevitable tension between the interests of the wealthy and those of the previously disadvantaged. This tension is likely to occupy South Africans for many years to come, in the process of undertaking the difficult task of seeking to achieve the equitable distribution of land and wealth to all.
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?
Courts’ Interpretation
It seems that the courts thus far have given little consideration to the notion of justice underlying ‘just and equitable’, focusing instead on what compensation entails rather than how compensation balances the interests of the parties. For instance, in Du ToitFootnote 21 (para. 22), it was held that the expropriatee must be put in the same position he would have been in but for the expropriation. In City of Cape TownFootnote 22 (para. 21), it was held that an owner may not be better or worse off because of the expropriation and that a monetary award must restore the status quo ante. Khumalo v PotgieterFootnote 23 (para. 22) stated that compensation is paid to ensure that the expropriatee is justly and equitably compensated for his loss, while Hermanus (para. 15) ruled that the expropriatee is compensated for the loss of the property. This sentiment was echoed in Ash v Department of Land AffairsFootnote 24 (paras. 34–35), where it was found that the interest of the expropriatee requires full indemnity when expropriated. Therefore, it is possible to pay more than market value.
In HaakdoornbultFootnote 25 (para. 48), the court ruled that for compensation to be fair, it must be recompense. To the court, compensation must put the dispossessed, insofar as money can do it, in the same position as if the land had not been taken. This compensation might not always be market value, but might be something more,
[b]ecause of important structural and politico-cultural reasons indigenous people suffer disproportionately when displaced and Western concepts of expropriation and compensation are not always suitable when dealing with community-held tribal land. A wider range of socially relevant factors should consequently be taken into account, such as resettlement costs and, in appropriate circumstances, solace for emotional distress.
More recently, the court in Mhlanganisweni CommunityFootnote 26 relied on several foreign dicta to show that the purpose of compensation is to recompense. In Florence v Government,Footnote 27 the Constitutional Court, in the context of a restitution claim, opted for the ‘generous construction [rather than] a merely textual or legalistic one to afford claimants the fullest possible protection of their constitutional guarantees’ (para. 48). The focus moved from recompensing to constitutional guarantees. When calculating compensation, the court warned that the burden on the fiscus was an important consideration, as compensation claims are paid from taxpayers’ money and therefore need to advance a public purpose (para. 71). The court, significantly, acknowledged the proportionality or the balance required between the interest of the individual and that of the public.
The one outlier is Msiza in the Land Claims Court,Footnote 28 where the court stated that ‘[t]he departure point for the determination of compensation is justice and equity’ (para. 29). The court interpreted this justice as ‘redistributive justice, which lies at the cornerstone of section 25 of the Constitution’ (para. 15). The court regarded issues of justice and equity as paramount in calculating compensation (and not as a second-level review test) and applied these principles to strike an equilibrium between the different interests (paras. 75–76). This is correct. However, it was overturned by the Supreme Court of Appeal.Footnote 29
What is evident from this summary of cases is that the bulk of these justifications for the payment of compensation place ‘property’ at the centre of the inquiry without focusing much on the competing claims. Despite the focus on recompensing the individual, the central principle should remain that the amount of compensation should reflect an equitable balance between the public interest and the interests of those affected. This balance must be established with reference to the relevant circumstances and should focus on the concepts of justice and equity rather than the property itself.
Call for Change
Despite these mechanisms being available to the government, it mostly paid market value in case of expropriation. Thus, the frustration for slow land reform was blamed on the provision that compensation must be paid when expropriating property.
Still, various reports (HLP, 2017; PAPLRA, 2019), experts (Parliamentary Monitoring Group, 2019), courts,Footnote 30 and even President Ramaphosa himself (Ramaphosa, Reference Ramaphosa2018), said that section 25 is not an impediment to land reform and does allow for compensation below market value. The Report of the High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (HLP) recorded Justice Albie Sachs saying that:
Far from being a barrier to radical land redistribution, the Constitution in fact requires and facilitates extensive and progressive programmes of land reform. It provides for constitutional and judicial control to ensure equitable access and prevent abuse. It contains no willing seller, willing buyer principle, the application of which could make expropriation unaffordable.
This was echoed by Justice Dikgang Moseneke, who said: ‘Everyone, whose property is expropriated, must be for a purpose the Constitution authorises and against payment of equitable compensation. The willingness of the buyer and/or the seller may facilitate a smooth transaction, but does not seem to be a constitutional requirement’ (HLP, 2017: 206). If the Constitution does not impede land reform, it is possible that the call for amending the Constitution, in large part, was about our understanding of ‘justice’, blurring the lines between law, politics and morality (Du Toit, Reference Du Toit2018).
This issue of justice and the moral argument is evident in the language often employed in the conversation: current (white) landowners are often referred to as ‘thieves’ (De Lange, Reference De Lange2011), implying that their land ownership rests on an immoral deed, regardless of whether the land was acquired under valid laws or after apartheid. Some commentators (Grootes, Reference Grootes2018) observe that certain aspects of this debate are more of a demand that white people lose something, that they should pay to some extent for what their ancestors did. On the other hand, some white people admit no personal culpability and claim they acquired the land by lawful means (Oppenheimer, Reference Oppenheimer2020).
This all rests on the centuries of dispossession of land and exploitation (see Desmond, Reference Desmond1970; Walker & Bradford, Reference Walker and Bradford1988) that culminated in four decades of apartheid. Thus, when the foundations of the Constitution were negotiated, white political power was intertwined with social and economic privilege (Terreblanche, Reference Terreblanche2002). The remnants of this institutionalised privilege and disadvantage are evident in South African society today, which is still primarily skewed along racial lines, including land ownership (Sulla et al., Reference Sulla, Zikhali and Cuevas2022: 1, 3).Footnote 31 The frustration over slow land reform was fertile ground for a contestation on section 25, specifically the compensation provision.
Constitution Eighteenth Amendment Bill
Thus, on 27 February 2018, Julius Malema of the Economic Freedom Fighters (EFF) introduced a motion in Parliament by stating that ‘almost 400 years ago, a criminal by the name of Jan van Riebeeck landed in our native land and declared an already occupied land by the native population as a no-man’s land’. People who followed treated Africans as less than human, not deserving land ownership, thereby disempowering Africans ‘of the ability to call this place their land was initiated in blood and pain’ (National Assembly, 2018: 25–26).
Criticising the negotiation process in the 1990s, he stated that ‘[t]hose who came in power in 1994 carrying the popular mandate of our people to restore the dignity of the African child … building false reconciliation without justice’.
[The] time for reconciliation is over; now is the time for justice. … We would have failed those who came before us if we were to pay anyone for having committed genocide. … Those who are saying we must pay for the land are actually arguing with us that we must thank those who killed our people. … We must ensure that we restore the dignity of our people without compensating the criminals who stole our land.
Some argue that framing the conversation in terms of criminal language is done to ensure punishment by confiscating the land (Sishuba, Reference Sishuba2017; Van Staden, Reference Van Staden2020). Then Minister of Water and Sanitation, Gugile Nkwinti, clarified the ANC’s position:
The ANC unequivocally support the principle of land expropriation without compensation as moved by the EFF. We may disagree on the modalities but we agree on the principle. … Land shall be expropriated without compensation. This will be implemented in a way that increases agricultural production, improves food security and ensures that land is returned to those from whom it was taken under colonialism and apartheid.
Later, the ANC added that ‘expropriation without compensation is our policy’, but that this does not mean that ‘people must smash and grab, each one for himself and the devil takes the hindmost. … We are saying a scientific systemic tool must be developed to ensure that the redress in so far as the land question, the redistribution, is fast-tracked through a scientific means, constitutional means and legislated means’ (National Assembly, 2018: 82).
The African Christian Democratic Party acknowledged the historical socio-economic injustices concerning land ownership and forced dispossession and supported ‘fair, legal and just reform and land redistribution’. Nevertheless, it did not support the notion, believing it to be another forced takeover of land, paying evil with evil (National Assembly, 2018: 65), and rejected what it deemed punitive justice.
This summary of the primary debates in parliament and the public arena forms the background of a discussion on the possible future interpretation of the ‘just’ in ‘just and equitable’ compensation.
Conclusion: It Is Time for a Transformative Justice Framework
The transition from apartheid South Africa to a constitutional democracy was done with much emphasis on a human rights framework contained in the Constitution (Mutua, Reference Mutua1997). But a rights framework can also freeze hierarchies and preserve the social and economic status quo if it does not actively use the rights to promote social and economic change (Friedman, Reference Friedman2021: 127).Footnote 32 If one is not careful, the risk is to transition from one government to another with the hierarchies intact instead of transforming society. Transition happens at the top, while transformation goes to the root (Daly, Reference Daly2001: 74).
This tension is evident in section 25, where a failure by the state to utilise its provisions fully has, to a great extent, frozen hierarchies and left systemic injustices in place, and where the systemic problems as inherited from the apartheid and colonial past have not been properly addressed.
The law has a role to play here. Markets are not ‘self-regulating’. They operate with a regime of legal rules and entitlements in the background (Klare, Reference Klare1991: 81). Legal entitlements of owners can thus hamper the distribution of wealth, and in the quest for redistribution of such wealth, the law will be confronted with what it deems to be ‘just’.
Transformative justice provides an apt framework for interpreting section 25 as we advance. It asks us to focus on inequality and poverty, to require participation from society, to address structural violence, and to emphasise state-building and institutional reforms. As a developing field, it fills the much-needed gap of restructuring society to explicitly address poverty and inequality and the structures that uphold them. Utilising the concept of transformative justice to interpret the requirement of ‘just and equitable’ in section 25 will enable the courts and decision-makers to address structural violence and socio-economic issues with deep historical roots (Evans, Reference Evans and Evans2019). It serves as a framework to guide actions.
Does this require a constitutional amendment? In my opinion, no. But this does not mean that the process of amending section 25, even if it ended with no amendment, was for nothing. This process could have benefited from a more explicit conversation about the notions of justice that should inform section 25. When Mr Malema said ‘there can be no reconciliation without justice’, he did not specify the type of justice that should inform such a process. This was explicitly done in the interim Constitution with its postamble and during the TRC process.
I would call for a transformative notion of justice, which incorporates redistributive issues by also indicating what we want to achieve with the redistribution, and still retains the elements of transitional and restorative justice in that it recognises that an individual can only truly experience dignity if a society is transformed. The Constitution lays down the possibilities; it is for us to realise it.
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