In a historic moment in Parliament on Tuesday, the House passed a motion to review section 25 of the Constitution which deals with property and land expropriation.
Parliament's constitutional review committee has been charged with reviewing section 25 of the Constitution to allow for land expropriation without compensation, and is expected to report back to the National Assembly by the end of August.
Section 25 states that property may be expropriated only for "a public purpose or in the public interest" and "subject to compensation" – the amount of which, and the time and manner of payment, must either have been agreed to by those affected, or decided by a court.
The amount of the compensation must be "just and equitable", reflecting a balance between the public interest and the interests of the landowner.
What the amendment seeks to do, is remove the "subject to compensation" bit. But what the ANC has never done, is develop a land-reform policy that considers "just and equitable compensation" from any standpoint other than the "willing buyer, willing seller" principle.
Several legal experts have already pointed out that the two concepts are not the same thing. Under the current Constitution, the governing party could still craft legislation with its own definition of "just and equitable compensation" that does not comply with "willing buyer, willing seller" – something the ANC has failed even to attempt in 24 years.
Constitution already makes provision for land reform
However, the Constitution already makes provision for land reform. It sets out the requirements that must be met when the government sticks its nose into private property rights. It gives the government the power to expropriate property, but only when it is for a public purpose.
"The public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources... The state must take reasonable legislative and other measures within its available resources to foster conditions [that] enable citizens to gain access to land on an equitable basis," it says.
"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."
In a blog written for HuffPost, Elmien du Plessis - an associate professor in law at the North-West University - argues that large-scale reforms would be necessary to provide equitable access to natural resources, and that this would undoubtedly have some impact on established private land rights.
Du Plessis writes that the Expropriation Act of 1975 provides for the exact procedure of expropriation, as well as the calculation of compensation – and since expropriation is an administrative action, it also needs to comply with the provisions of the Promotion of Administrative Justice Act of 2000.
She concludes that following these provisions makes expropriation a highly technical and lengthy process, so government's thinking that amending the Constitution to remove the compensation clause will shorten the process is naïve.
She said that even if Section 25 is amended, there still is no guarantee that the state will make use of its expropriatory powers.