The ability to act with force on people is the state’s greatest power. Thus, while I agree that a radical process of land expropriation and redistribution must happen, some kind of compensation is necessary as an institutional mechanism to constrain the state’s use of power over people.
Compensation is a mechanism to counterbalance the state’s ability to take from people. It forces a quid pro quo.
After all, expropriation comes down to the state’s ability to bring in people with guns to force people off expropriated land if they refuse. Based on how the state already uses guns against the poor and dispossessed regularly, we must not embed any power that cannot be checked into the state’s monopoly on violence.
In that sense, the South African Constitution appears correct in impeding the state’s ability to arbitrarily take property. The emphasis in section 25 (1) of the Constitution is on the notion of “arbitrariness”: “No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.” This clause does not seem to assert an explicit right to property but does assume that property is something that exists and can be acquired within society and that the state can only take it away so long as it does not do so arbitrarily.I cannot see a problem with such a protection in principle, given the history of black people’s dispossession, not just of land, but of common intellectual, cultural and intangible property. The trouble is that section 25 does not immediately press the reset button on historical inequality. It merely gives the state the power to create policies to do so.
So even though it protects everyone from arbitrary state force, it also works with the logic of capitalist markets by requiring market value to be a consideration in compensation.
The market value clause in sec 25.3.c. has been applied to the detriment of the public interest in legal judgments relating to land. The most famous was the Mala-Mala game reserve claim, where the judge ordered the state to pay in the region of R700-million in terms of market value to the owners, based on some idea of “market valuation” that almost certainly includes supply/demand desires of imaginary rich property buyers who form the basis of the game farm market.
Even the judge conceded that market value was just too high a price for the state, even while ruling that it was fair compensation for the owners.
Market value is thus possibly the most unstable and most subjective factor when working out compensation, since its underlying premise is what a buyer would pay for an asset.
In the 2016 Msiza case, acting land claims judge Tembeka Ngcukaitobi attempted to neuter the problem by awarding R300000 less than the R1.8-million valuation the state had come to. The Supreme Court of Appeal (SCA) overturned Ngcukaitobi’s judgment in 2017 and stated that he could not justify paying R300000 less.
However, the court also rejected the over-speculative market value of R4-million demanded by the owners.
In the end, R1.8-million was awarded. In this case, market valuation again held sway.
The SCA argued that Ngcukaitobi’s judgment had arbitrarily deducted R300000 from the state’s market valuation.
What this case seems to show is that while we can constrain overblown market valuations, we cannot do away with market value completely without adequate justifications.
This means the market value clause needs to be simply deleted. Of course this may not result in land reform anyway because in the end, the Constitution is not what will give the government political will...