The executive order of Donald Trump to terminate American aid funding for South Africa is a grave distortion of the law and of history.
Trump claims that the law is aimed at ‘seizing ethnic minority Afrikaners’ agricultural property without compensation’. This is a falsehood. But more about that later. First, some historical perspective is warranted.
Let us start with Hugo Grotius, who is today regarded as the founding “father” of international law. Yet in his role as the legal adviser of the Dutch East India Company (the VOC), he was not merely an apologist for Dutch colonialism, but its foremost theorist, interlocutor and spokesman.
His ideas, propagated during the 17th century which, when the Dutch empire was in its ascendancy, including in southern Africa, shaped the encounters of the Dutch empire with the native indigenous people in Asia and Africa, especially in the Cape.
The confiscation of property of native people, their enslavement and their mass killing were the prime occupations of the powers of Europe – Spain, England, Portugal and, of course, the Dutch. They would turn to their intellectuals, like Grotius and John Locke – the latter being an adviser to the English-owned East India Company – not so much to explain the praxis of empire, but to provide justifications for and excuse it. And here there were variations on a single theme: Europe’s intellectuals justified the theft of property of the indigenes as part of the larger European mission in the world: to “civilise” the barbarian races of Africa and Asia.
Locke justified the taking of the land of the indigenous people of America by Europeans under the res nullius doctrine: the idea that since the land was not held under European-recognised modes of landholding, it could be treated as vacant and hence open to confiscation by European settlers.
‘Eminent domain’
For his part, Grotius introduced the notion of “eminent domain” into the vocabulary of European colonisation. “The property of the subject”, Grotius wrote in 1625, is under the “eminent domain of the state”. The state is entitled to use the property “for ends of public utility”. It must be assumed that those who founded “civil society” intended that private ends must yield to public ends. When this happens “the state is bound to make good the loss to those who lose their property”.
Unanswered Questions About Expropriation SAAI
While the Europeans took the land of indigenous people everywhere they encountered them, they never in fact compensated them for the loss of the property.
As a legal doctrine, eminent domain is entrenched into the fabric of the legal systems which follow the English tradition. America continues to apply the doctrine, ensuring that public policy can override private interest. It comes in different guises, including the concept of expropriation.
Post-independence
When Asia and Africa were decolonised in the mid-20th century, the question arose as to how to correct the confiscation of property which had taken place under colonialism. Newly independent states also retained the power of expropriation of private property. In this regard, it followed the Americans and the British. Expropriation laws are regarded as a good thing overall. Private property is not an absolute thing. When necessary, it must yield to the public interest.
After independence, expropriation powers were even more important than they had been during colonisation. European conquest of Africa had created a vastly unequal property regime in which whites became extremely wealthy at the expense of Africans. The idea of freedom and independence was tied up with the right of return – the correction of the evils of the past and the property disparities of the past.
Yes of course, unfortunately, for most of Africa, independence tended to be disappointing. No meaningful transformation of the property rights regime established to serve the interests of European elites took place. Instead, new African elites with the same mindset as their European counterparts developed, leading to fresh episodes of dispossession and concentration of wealth for new elites.
Southern Africa’s era of decolonisation really began in 1979 when Zimbabwe negotiated its independence at Lancaster House in the United Kingdom. A contentious issue in those negotiations was how to deal with the land. The question was, should the land taken from the native people during colonialism be returned? And if so, under what conditions?
The Lancaster negotiations produced a constitution, which contained four clauses on land:
In general, private property, including land, was protected from seizure by the state;
The state was granted limited powers in the coercive taking of property. Specific instances were spelt out: national defence, public safety, public order, public morality, public health, town and country planning, the use of land to promote the public benefit, or, in the case of its underutilisation, the settlement of land for agricultural purposes.
In the event of compulsory state seizure of land, prompt payment of adequate compensation was guaranteed, as decided by a court; and
The right of access to courts to arbitrate compensation disputes was guaranteed.
SA’s Expropriation Act
Enough now of history. What about the claim that this law – the Expropriation Act of 2024 – allows the state to seize property without compensation? This too is a lie.
A model similar to the above has been adopted by South Africa. Section 25 of the Constitution contains the pillars for the transformation of property. At least three subsections are devoted to the topic of expropriation, signifying its complexity and importance.
Section 25(2) empowers the state to expropriate property for public purposes and in the public interest and subject to just and equitable compensation. Section 25(3) deals with just and equitable compensation. Section 25(4) explains that property is not limited to land. Overall, the section does not, at least explicitly, provide for the unqualified right to hold private property, although judicial authority holds that such a right is implicit in the structure of the section.
Section 25(2) says that expropriation is permitted only in accordance with national legislation. Before the Expropriation Act of 2024, the national legislation used for expropriations was the Expropriation Act of 1975. But this law was not congruent with the Constitution in at least two respects.
Whereas the Constitution permits an expropriation in the public interest, the 1975 law allowed expropriation only for public purposes. The difference between public interest and public purpose really boils down to the reason why the state wishes to acquire the property.
Generally, where the state acquires the property for its own use, that will be regarded as a public purpose expropriation. But where the state acquires the property for the ownership and benefit of a wider group of persons which go beyond the state’s own use, that will be regarded as a public interest expropriation. While not defining the term, the Constitution says that public interest includes the nation’s commitment to land reform and to reforms to bring about equitable access to all of South Africa’s natural resources.
‘Willing seller, willing buyer’
The second respect was that the Constitution imposes the duty to pay compensation which is just and equitable. Section 12 of the 1975 Act provided that an expropriated person is entitled to the amount “which the property would have realised if sold … in the open market by a willing seller to a willing buyer” and “an amount to make good any actual financial loss caused by the expropriation.” Thus, the law under apartheid entitled the expropriated owner to double payment: a market-related price and money to make up for the loss.
The 2024 law has adopted the formula of just and equitable in the determination of compensation, and discarded the willing seller, willing buyer formula drawn from the 1975 Act. The requirement that payment of compensation must be just and equitable means that there is no abstract determination of compensation, but a painstaking task must be performed in each instance, and with every property to determine what justice and equity demand.
Of course, in each case there will be differences of opinion about what is just and equitable. But disagreements as to the amount to be paid and the valuation of property are as old as the property market itself. There has always been a way to find a middle ground in cases of disagreement. Nothing will change simply because a new law is in place.
Much remains uncertain. But that uncertainty is inherent in any new piece of legislation. What we should avoid is the tempting conclusion that the past was better than today.
Clamouring for the return of the days of willing seller, willing buyer, that were embedded in the 1975 Act, is a clamour to return to days that most South Africans have put behind them. It is now time to make this new law work. Our guiding light is to find what is just and equitable. This is the power given to our courts, whose reputation of excellence and independence is beyond doubt.
Tembeka Ngcukaitobi is a lawyer in Johannesburg.
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