Deconstructing section 25(3) of the Constitution: have the courts adopted a progressive approach in interpreting section 25(3): a critical study of Uys NO and another v Msiza and others?

Abstract

Section 25(2) of the Constitution provides that property may expropriated only in terms of law of general application for a public purpose or in the public interest, subject to compensation. Section 25(3) provides further that the amount of compensation, and the manner and time of payment, must be just and equitable, reflecting an equitable balance between the public interest and the interest of those affected, having regards to all relevant circumstances, including, inter alia, the purpose of the expropriation (s 25(3)(e)). Academic commentators such as Du Plessis have argued that these provisions implicitly provide for compensation below market value or nil compensation (so-called “compensation without expropriation”) where the purpose of an expropriation is a constitutionally special one, such as land reform. In light of this fact, they argue further, it is unnecessary to amend section 25 to explicitly provide for compensation below market value or nil compensation (see E du Plessis “The public purpose requirement in the calculation of just and equitable compensation” in B Hoops and E Marias (eds) Rethinking expropriation law I: Public interest in expropriation (2014) at 376). While this argument was adopted by the Land Claims Court in Msiza v Director-General Department of Rural Development and Land Reform 2016 (5) SA 513 (LCC), it appears to have been rejected, at least implicitly, by the Supreme Court of Appeal in Uys NO v Msiza 2018 (3) SA 440 (SCA). The judgment of the Supreme Court of Appeal thus appears to support the decision taken by the National Assembly to amend section 25 of the Constitution to authorise expropriation of land for land reform purposes in those circumstances identified in an Act of Parliament. The purpose of this dissertation is to critically analyse the manner in which the Supreme Court of Appeal interpreted and applied section 25(3) of the Constitution in Uys NO v Msiza.