Land: Whatever you decide, it must be reviewable, Albie Sachs tells MPs

Judicial review is a fundamental that cannot be amended, says former ConCourt judge

Land: Whatever you decide, it must be reviewable, Albie Sachs tells MPs

Former Constitutional Court Judge Albie Sachs told Parliament's Constitutional Review Committee that whatever legislators decide regarding land expropriation without compensation, it must remain open to judicial review.

Sachs was one of the presenters on Friday who spoke before the Constitutional Review Committee's colloquium on land expropriation.

The committee is looking into the dynamics around amending section 25 of the Constitution, "the property clause", to allow for land expropriation without compensation.

The former judge – who was part of the original team that helped draft the Constitution – said that while it was permissible to amend the Constitution, amendments should not destroy "constitutionalism".

He cited previous rulings by former Chief Justice Ismail Mohamed, and examples from elsewhere on the continent where judicial review was hindered or not allowed when it came to land.

"There are certain fundamentals that cannot be amended, such as judicial review," he said.

"[Mohamed] ruled that not allowing for judicial review wasn't amending the Constitution, it was destroying one of the tenants of constitutionalism.

"This is one cautionary note, that whatever you do, if you do go along the road of amending the Constitution, judicial review cannot be excluded."

ConCourt is a guarantor of rights

The Constitutional Court was not just the last functionary that oversaw the broad application of the law, like whether the president was performing his or her duties, he continued.

It was a guarantor of the fundamental rights of the citizens.

"You can't have constitutionalism if there isn't some sort of independent body to ensure it will be applied.

"And if the body that is exercising power is going to decide for itself, then you're not living in a constitutional state."

The state therefore should not be given "carte blanche" in seizing property and land in its processes, as temptations were "always there".

"So there must be controls," he warned.

When they first drafted section 25, they took that into account, as well as examples from other "unnamed" neighbouring African countries.

"The historic need for redistribution was there, but we also didn't want a minister coming in to say, 'oh I like that house, I like that house, I'll give it to my son, and so on.'"

Property clause already empowers

Sachs said that the current provisions could already allow for land expropriation without compensation, provided it met the "general limitations clause" in section 36 of the Constitution, which had thus far not been tested.

"Section 25 is actually an empowering section that calls for extensive land redistribution, and gives the state in the public interest very extensive powers."

Expropriation would also need to be done for public purpose and in the public interest.

An alternative for Parliament to consider is adding a clause to the new Expropriation Bill, which has been in the pipeline for more than ten years, to deal with expropriation without compensation.

He cited an air force base in Ysterplaat, Cape Town, as a prime example.

"That land has been there [for some time]. I understand it was given by the De Villiers Graaf family to the government for the purposes of the [Second World] War.

"The war has passed, the land is still there. I would say a very strong case could be made to say, 'thank you very much'.

"Although the deed says the land must be returned to the family if it's not used for the purposes of war, our history has gone beyond the war, and the De Villiers Graaf family has done very well out of apartheid.

"An expropriation act could deal with people who have multiple farms where some are not used at all, with some compensation or minimal compensation."

'Bring the nation together'

He said this was a creative solution that could take the matter forward and one that might get bigger buy-in from the general public.

"Allow the court ultimately to decide the constitutionality of it, and work in a way of bringing the nation closer together, rather than dividing it any further."

Sachs said the interim Constitution, adopted in 1992, didn't say anything about property at all.

The current version was adopted in 1996 after the fall of the apartheid government, and when justice was on the side of the governed, he said.

It had drawn a lot of criticism from the free market and business bodies at the time, which said "the text we have now does not entrench property as a universal right".

"The Constitutional Court rejected that challenge. We looked at many constitutions around the world, and many of them did not have property as a protected right specifically."

Other speakers on Friday included Dr Aninka Claassens, a member of Parliament's high-level panel headed by former president Kgalema Motlanthe, and the Banking Association of South Africa.