This morning during the opening of the ANC’s policy conference in Midrand President Jacob Zuma reiterated the misconception that the Constitutional property clause requires a willing seller and willing buyer for the purposes of agreeing compensation at expropriation. He said that this distorts the land market and makes land reform expensive and slow.
It is simply not true that a seller can frustrate expropriation and land reform in this way. It is fruitless to try to “review” a requirement that is not present in section 25 of the Bill of Rights.
The property clause says property may be expropriated under a law of general application in the public interest subject to compensation which has either been agreed between those affected or decided or approved by a court. The public interest includes land reform.
When a court sets the amount of compensation and the time and manner of payment, it must find a fair balance between the public interest and the interests of those affected. That equitable balance is not dictated by market value alone, but also by other factors including the purpose of the expropriation, the history of the acquisition and use of the property, and its current use.
The failure of land reform is the failure of government itself.
The first policy drafts for this conference included the proposition that the property clause was a sunset provision. President Zuma by and large expressed acceptance of the Constitution, including an independent judiciary, and exhorted the policy conference to tackle poverty, economic inequality and unemployment.
Those laudable goals can be successfully pursued within the constitutional framework – indeed they cannot be achieved outside it.