A property clause was included in the South African

Constitution Act 108 of 1996.

However, the provision was formulated to ensure that both the propertied, and the landless and vulnerable and those dispossessed of their property were able to benefit from its inclusion. The final product evidences an attempt to ensure redress as well as allaying the fears of private property owners.

The section reads as follows.

(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application–

(a) for a public purpose or in the public interest; and

(b) s ubject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including–

(a) the current use of the property;

(b) the history of the acquisition and use of the property;

100. the market value of the property;

     (d) the extent of direct state investment and subsidy of the

(e) the purpose of the expropriation.

4. For purposes of this section–

(a) the public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources; and

(b) property is not limited to land.

5. The state must take reasonable legislative and other measures, within its available resources, to foster conditions, which enable citizens to gain access to land on an equitable basis.

6. A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

7. A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

8. No provision of this section may impeded the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from provisions of this section is in accordance with the provisions of section 36(1).

(9) Parliament must enact the legislation referred to in subsection (6).4 Clearly the constitution was a compromise and the South African government has adopted a cautious approach to land reform by including a constitutional protection of private property and then limiting that right.

4. The Three Pillars of Land Reform

There are three pillars of land reform stipulated in the Constitution:

1 Land Redistribution seeks to provide the landless with productive land and residential land. The government is providing grants to enable the poor to purchase land. According to the Chief Land Claims Commissioner, land redistribution seeks to provide land for “urban and rural very poor, labour tenants, farm workers as well as new entrants to agriculture.”

2 Land Restitution seeks to return what has wrongfully been taken. This is being achieved through restitution of the land or financial compensation. Restitution covers forced removals, which took place after 1913.

3 Land Tenure recognises communal land and also seeks to protect the rights of tenants on predominately white owned farms (Thwala, 2003).

The challenge in the South African context is to ensure that that these three pillars are successfully achieved. Success can be construed in many ways but, in terms of land and the alleviation of poverty which land redistribution forms an aspect of, successful land reform should mean better livelihoods for those who receive land.