Issues regarding access to land are some of the greatest legacies of colonialism that still plague our society today. Apartheid land laws allowed evictions and forced removals that uprooted millions of black South Africans and left them politically, socially,economically marginalised, insecure and vulnerable. Most of South Africans today when they think of land, they think of inequality and oppression.
The man and woman who drafted our Constitution were acutely aware that the existing common law and the way our court’s had traditionally interpreted and applied it, were not going to solve the problem of imbalanced land ownership. More drastic measures had to be taken to shift the common law property approaches, the Interim Constitution in 1993 and the Constitution in 1996 resulted in an enactment of Section 25 of the Constitution.
Section 25 of the Constitution specifically addresses land reform.The section protects the existing ownership of those who do have land, by setting down regulations and procedures addressing when and how land may be expropriated by the state and how owners should be compensated for their land.
Section 25 also places a duty on the state to facilitate the redistribution of land.The state has a responsibility to pass legislation to protect and promote the rights contained in the Bill of Rights and this include the right to access to property.
In this regard Parliament tried to breathe life into section 25 of the Constitution and passed a great deal of legislations, which seeked to provide legal recourse to those without land and to help them acquire land they would not have access to without legislative assistance. In all fairness, this look really good on paper but what has been the reality for those South Africans who do not have access to land? Can we really say that justice has been done and that the problem of landlessness has been adequately addressed in this country? If we follow the news or talk to our fellow South Africans, we see and hear that this is not the case at all.
More than two decades into South Africa’s democracy many argue that land reform has been too slow and that the socio-economic transformation of our greater community has not taken place as promised. We can certaily all agree that these are not easy problems to solve and that transformation on a massive scale cannot happen overnight. But it’s also impossible not to sympathise with those who feel that the system has failed them.
This means that the Constitution now requires us to think differently about property rights and section 25 of the Constitution, particularly on the proposed draft bill of expropriation of land without compensation.
In the case of Daniels v Scribante and another the court made specific references to the importance of understanding and responding to the historical event’s that had lead to poor housing conditions and lack of access to land suffered by millions of South Africans today. The court held that some of the poorest members of our society only have rights to their homes under the protection of ESTA: ” Needless to say occupiers under ESTA are a vulnerable group susceptible to untold mistreatment. This is especially so in the case of woman. It is also about affording occupiers the dignity that elude most of them throughout the colonial and apartheid regimes”.
The constitution instructs us to heal the historical divisions in our society but not to expropriate land (without compensation) in order to reverse historical injustices, as this will result in undue infringements on the owners rights to his property.In order to address the legacy of apartheid it is crucially important that the dispossession of land and how it has resulted in the loss of human dignity in this country, to be dealt with in terms of relationships rather purely in terms of rights that owners can enforce to exclude others from using the land for any purpose.
(Practicing Civil Commercial Mediator)