‘Land reform has failed rural people, and it has never been an urban programme. It has failed people because it has not redistributed or restituted land on the scale promised nor has it given rural and urban people with little access to productive resources and insecure tenure what they need from land reform,’ say land researchers Donna Hornby and Lauren Royston.

They argue that expropriation without compensation can be a tool for redistribution in both urban and rural contexts. In urban areas, little or no compensation needs to be paid where owners have abandoned their properties and buildings. In rural areas, the portions of farms currently occupied and used by labour tenants and long-term farm dwellers can be expropriated with little or no compensation – without affecting farm production and national food security. In an analysis on the Daily Maverick site, the authors point out that these suggestions do not contradict the Constitution.

‘The Labour Tenants Act, the Restitution Act, the Extension of Security of Tenure Act and the Housing Act all already provide for expropriation in rural and urban contexts. The extent to which these laws can provide for compensation that is just and equitable as set out in the Constitution still needs to be tested in the courts.’ However, the authors point to two ‘gaps’ in our law:

* An ‘overarching’ land reform law that specifies the conditions under which land can be expropriated for the purposes of equitable access through redistribution.

* An updated Expropriation Act that clarifies the meaning of the constitutional provisions of just and equitable compensation and the conditions under which they apply.

The authors add that a constitutional amendment would enable officials to use land reform to identify specific land to address spatial inequity and to support small farmers. ‘It would also be very useful if the Constitution, or an amended Expropriation Act, clarified the principles for valuing properties that are already occupied and have a changed land use.’ Hornby and Royston argue that expropriation for the purposes of land reform must involve the identification of ‘vacant’ public land, as well as unused private land.

‘Furthermore, the racially inequitable distribution of land means that government must look at public and privately owned land that is occupied.’ They conclude: ‘Whatever mechanisms are adopted – including constitutional amendments and amendments to current or old laws – clarification of the details of implementation will need to be developed through court processes as well as state programmes that don’t yet exist.’

Full analysis on the Daily Maverick site