While section 25 of the Constitution explicitly rejects market-based approaches to compensation for land reform, its formula is imprecise, using the term ‘just and equitable’ compensation. Yet, says Advocate Tembeka Ngcukaitobi, section 25 is not self-executing.

‘The ultimate interpretation of the Constitution falls in the domain of the judiciary, but the primary interpretation is the function of the executive. To fulfil its own constitutional mandate to implement the Constitution, the executive must first interpret it, which must be through executive policy. Executive policy is also important, because it avoids guesswork and fosters a culture of rational decision-making.’

In an analysis on the Mail & Guardian Online site, Ngcukaitobi explains: ‘To apply section 25, the executive must domesticate it, through policy. Property owners must know upfront the state policy on compensation. The Constitution provides the baseline. Yet certain policy pronouncements remain to be made.’

The required policy, he adds, must:

* Explicitly reject the ’willing seller-willing buyer’ principle;
* Embrace a no-compensation approach – not on a blanket basis but for certain targeted categories of property;
* Create a flexible regime, which could allow for the use of market value as a basis for compensation;
* Delink expropriation from payment of compensation; 
* Instate clear administrative procedures when compensation decisions are to be made; and
* Outline the judicial review function for disputes about compensation.

Ngcukaitobi says compensation policy and the over-arching legislation on expropriation is the Expropriation Act. This is administered by the Department of Public Works, and not Land Affairs, where he believes it should be. He says that under apartheid, the tool of expropriation was primarily used to acquire land and property for state ownership. Now, expropriations are also a state instrument to acquire property for ownership by third parties, especially in the land reform context.

Ngcukaitobi says the Constitution acknowledges this by drawing a distinction between ‘public interest’ and ‘public purpose’ expropriations, with the latter being expropriations for state ownership and the former being expropriations for the general public interest.

‘This change signifies the need for a redesign of the Expropriation Act, including its political location. Rather than fixing the old Act to render it applicable for expropriations in the public interest, it must be accepted that a new Act is necessary, specifically focused on expropriations and land acquisition for land reform. The Expropriation Act must remain the legislation used for acquisition of properties for state ownership, rather than in the general public interest.’

Full analysis on the Mail & Guardian Online site