Monday, January 19, 2004

More strange legislation
Thabo Mbeki is set to sign amendments to the Restitution of Land Rights Bill that will allow the Minister of Agriculture to expropriate land without a court order, thereby circumventing the willing-seller-willing-buyer basis upon which land reform has thus far been conducted. Farmers are, understandably, concerned and fears that this is the first step towards a Zim-style land grab are -- while obviously overstated -- apparently part of the reason why the rand has lost value over the last week.

Leaving aside the wisdom of the legislation, however, the property clause in the Bill of Rights states the following:

s25(2) Property may be expropriated only in terms of law of general application:
a. for a public purpose or in the public interest; and
b. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

I don't think that you have to be a lawyer to see that there's a problem here. Either the land-owner must agree, or the government has to go to court. Changing the legislation to allow the government to circumvent the courts isn't going to allow the Minister to set the price.

Its true that the Constitution also says:

s25(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

But this provision makes clear that any departures from the letter of s25 have to be justified under the limitation clause -- a fairly onerous task. I'm surprised that, amid all the fuss, no one has picked up on this. Am I missing something?


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