Retired Constitutional Court judge Albie Sachs says land expropriation can be achieved without changing the property clause of the Constitution – Section 25.

Sachs was opening the Colloquium on Land in South Africa at the University of Cape Town. This comes as the land expropriation public hearings continue with people in Westonaria and the Vaal in Gauteng giving their views in recent days.

“We can achieve very substantial radical land reform without expense, without altering the Constitution. Now the debate has shifted on how we can achieve land expropriation without compensation – it became the debate. Can it be achieved without altering the Constitution? I think a very strong case can be made from that. But there is a itch somehow from some people who feel that the settlement of 1996 that inaugurated so many changes didn’t lead to the promise land that we expected.”

Justice Albie Sachs explained that Section 25 of the Constitution was never negotiated. He pointed out that it was not a product of Codesa, or the outcome of a deal, but was adopted by Parliament.

“Democratically elected parliament and parliament at that stage consisted overwhelmingly of people who’d been in the freedom struggle, who had come out of jail, who had been active in resisting forced removals from land, who’d been in exile, who’d been in MK, who had been fighting for freedom in this country. This is central to understanding Section 25.”

Sachs went on to say, a form of Constitutional control over expropriation was necessary. This would prevent those in office from using state instruments to amass wealth.

“And once you get politics, power and economic opportunities mixed up, you can see what happens, we don’t have to point to other countries, and we can point to our own experience in our own country. And what can happen even with a good constitution, if there isn’t vigilance. If you allow the expropriators to determine the justice of expropriation, you are finished.”

Sachs said academics needed to step in and apply their expertise, to help formulate the correct model to navigate the process.

He suggested that a new Expropriation Act be adopted by Parliament, which would permit expropriation.

This could then be referred to the Constitutional Court to test whether it complied with all the requirements.

The land colloquium also addressed tenure of rights, hindrances to land reform, beneficiaries of expropriation and a feminist analysis of land economics.