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SECTION 25 OF THE CONSTITUTION REMAINS UNCHANGED: IS THIS THE END OF THE DEBATE?

section 25 of the constitution remains unchanged - STBB

After three years of intense debate and politicking, the National Assembly yesterday afternoon voted against changing the Constitution to (explicitly) provide for expropriation of land without compensation. Thus the “property clause” in the Constitution, section 25, remains unchanged – for the time being.

This is good news for investors and banks. However, a ruling party that secures a two thirds-majority in the House of Assembly in the 2024 general elections may again push for this amendment. In any event, an amendment to section 25 or other clauses of the Constitution is never “off the table”. The debate may be raised again at any time since the Constitution has sections that allow for amendments, in certain strict circumstances. Bear in mind further that the issue of Rnil compensation is likely to be aired again when the current Expropriation Bill is finalised. (This Bill has been on the cards for a while now and seeks to repeal and replace the current 1973 Expropriation Act. In the current form of the Bill, provision is made for taking into account various factors when land is expropriated for land reform, in line with the Constitution. In so doing, and in very specific circumstances outlined in the Bill, Rnil compensation is foreseen.) The Expropriation Bill is ordinary legislation that is still in the making and as is the norm, will make explicit what is implicit in the Constitution.

It is important to note that this was not a vote for or against land reform. Most political parties and South Africans agree by now that land reform is important and necessary, although disagreement remains on what land reform should look like. It remains important to focus on establishing successful land reform programmes within the rule of law and to bring meaningful change to people despite this amendment not going through.

Commentators mention that, although a long three year period has lapsed before the National Assembly finally voted against the amendment to section 25 yesterday, land reform planning did not stagnate in this time. For starters, it had put the discussion on the forefront and in the minds of many South Africans. In this period, a Land Court Bill has been published, to provide for a specialised court to deal with land reform matters. Justice Minister Lamola has also recently repeated talk of a Redistribution Bill and about finalising the Communal Land Rights Act.

These are probably the result of the intense debates around section 25 of the Constitution and are steps to support the promotion of land distribution within the legal framework. We will keep you updated of the progress by the legislature in this regard

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