As it stands, section 25 of the constitution gives plenty of scope for government to expropriate property. There is already no requirement to follow a willing buyer, willing seller method.
A recent court case — in which Mohammed Haffejee, a property owner, clashed with the eThekwini municipality — looked at whether expropriation is valid before a price has been decided.
The judgment, written by judge Johan Froneman, says that if the government decides what to pay only after an expropriation has been made, it "burdens the property owner and triggers repellent memories of pre-constitutional arbitrary dispossessions".
But, at the same time, it would also burden the government if one had to fix the price before the property was expropriated.
After analysing section 25, the judge decided that the state’s interest should outweigh the property owner’s.
So the ruling says that the government doesn’t have to agree on the sum or the time and manner of payment before expropriation takes place.
However, it says that in cases where the amount to be paid could be determined only after expropriation, it has to be done as soon as reasonably possible. And the amount must still be "just and equitable".
In Haffejee’s case, the owner of the property rejected an offer to expropriate the property at its "market value". His property was originally part of a larger holding, but the municipality earmarked it for expropriation so it could build canals to mitigate the impact of flooding.
Importantly, the case did not deal with the question of what would be a "just and equitable price" for the property. In cases where a property owner fails to agree on that price, a court would have to decide it.
The significance of this judgment is that it confirms that a property owner cannot delay the expropriation indefinitely by refusing to accept a reasonable offer.
But the court was also aware that the owner needed to be protected from unreasonable delays in payment, and also from an unreasonable eviction. A court will always have the final say to ensure the owner is protected from abuse.
The deeper significance of the judgment is that it illustrates crisply that we don’t need a constitutional amendment to speed up land reform. It would be necessary only if the principle requiring just and equitable compensation were to be abolished — which is something that very few people have suggested.
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