Ownership of land is of socio-economic value central to the economic growth and development of the owners, and South Africa’s GDP.
Ngcukaitobi SC argues that it is not imperative that the Constitution be amended for the course. He holds that, amongst other avenues, parliament can pass a separate and specifically enabling legislation. Alternatively, there could be a judicial pronouncement permitting expropriation of land without compensation.
I strongly disagree with his views and/ or recommendations. Enacting specific legislation to permit expropriation of land without compensation will easily be vulnerable to scrutiny through the lens of the Constitution. The said scrutiny could see the specific legislation declared unconstitutional after a successful challenge by any vested party.
On the second leg, a judicial pronouncement or judgment permitting expropriation without compensation will also be subject to vulnerability. Suppose the pronouncement is made by the Constitutional Court, such pronouncement would be unappealable. However, the said pronouncement would not stop any vested party from challenging its supposed unconstitutionality from other angles. Moreover, the pronouncement will be susceptible to rescission applications. Such a window could potentially see a turn around from the pronouncement by the very Constitutional Court under a different bench in the future; the court enjoys the discretion to do so on valid grounds.
Needless to say, Ngcukaitobi’s views and/ or recommendations, although may initially be effective, would still result in legal uncertainty from both legs. I am of the view that it is imperative that section 25 of the Constitution be amended to explicitly permit expropriation of land without compensation. This angle would not only ensure legal certainty, it would also strengthen the hope, and the strides thereof, towards redressing the injustices of the past through the lens of the supreme law of South Africa, that in fact, cannot be easily changed.