Durban – For former Constitutional Court judge Albie Sachs, the constitution – especially in its dealings with land reform – requires no amendment.
Sachs was addressing those gathered at the Luthuli Museum in KwaDukuza for a public lecture and exhibition opening, which centred on Chief Albert Luthuli, Oliver Tambo and the 27 clauses of the Bill of Rights.
The issue of land reform has been a contentious one.
President Jacob Zuma made headlines recently when he promised, in his final year as head of the ANC, “radical economic transformation”, including constitutional changes to allow the government to expropriate land without compensation.
The ANC in KwaZulu-Natal has called for a referendum on expropriation without compensation.
Sachs said: “We spent more time on the property clause (in the constitution) than any other. It’s the longest, except for the one dealing with a fair trial. It does not grant the right to property, which would have been a thumb in the scales in favour of the status quo. It simply means that no one shall be arbitrarily deprived of property.”
He said that they wanted to avoid a situation where any person in power could “dish out land to his pals or his lovers”, which they had seen in other countries.
“That’s not what we were fighting for. That’s not the emancipation we had in mind. At the same time, we knew that property law in SA could not be looked at like the old colonial property laws."
“We have to look at it in the context of the massive dispossession in our country.”
In 1988, Sachs lost his right arm and sight in one eye when a bomb was placed in his car in Maputo, Mozambique. After the bombing, he devoted himself to the preparations for a new democratic constitution for South Africa.
When he returned home from exile, he served as a member of the Constitutional Committee and the National Executive of the ANC.
He said they had set up a system where victims of forced removals after 1913 could get their land back, and 25 000 of claimants had been successful.
“But then we asked ourselves: ‘How far back do we go for the land taken before 1913? To the Khoi San? To 1652? When does pre-colonial start?’”
He said the state was under obligation to perform land reform.
“It’s in Section 25. The state is given power to expropriate for the purposes of land reform that’s in the public interest.”
He said that the most debated part of the clause was over compensation.
“The other side (apartheid government) said they wanted a willing buyer, willing seller model. But we said no. Expropriation means that the seller is unwilling. That’s the point.”
But, he said, it was difficult to decide who received the land.
“Does it go to the poorest of the poor? Or people who have some capital and know-how? These are hard questions."
“But the constitution says compensation must be just and equitable.”
He said the interests of society needed to be balanced against the interests of the individual, and determined by a court.
“We need to look at the history of the piece of land, too. This has not been tested yet in courts. Maybe it would be a good idea to test it to see if it works before anyone decides to amend the constitution.”