The anachronism of the landowner’s veto in a constitutional democracy

DR WALLACE AMOS MGOQI

The land owner’s veto in a constitutional democracy is an anachronism than cannot be countenanced. In colonial and neo-colonial times, it operated seamlessly as between the propertied and non propertied classes in society. But as soon as a constitutional democracy with a completely new dispensation, the old order had to give way, new wine had to be in new skins.

Historically the notion of ownership of something gave its owner a comprehensive right, which was universal and operated against the whole world. In fact the textbook definition taught in law schools was the following:

“Ownership, in contrast to limited rights like servitude and mortgage is potentially the most extensive private right that a person can have with regard to property. In principle, ownership entitles the owner to deal with his or her property as he or she pleases within the limits set by law.

The comprehensive right of ownership embraces not only the power to use (ius utendi), to enjoy the fruits (ius fruendi) and to consume property (ius abutendi), but also the power to possess (ius disponendi ), to reclaim property from anyone who unlawfully withholds it (ius vindicandi) and to resist any unlawful invasion of property (ius negandi).“

However, we have seen that there are circumstances where this right can be limited, for example , where a national or provincial of municipal road needs to be broadened, the authority has the power of expropriation with compensation to do so for public purpose.

Since the dawn of democracy the situation has prevailed which was a norm prior to the adoption of the Constitution, where land owners regarded their right of ownership as sacrosanct and untouchable. However, the reality is that since the adoption of our constitutional democracy, certain norms and values were introduced and entrenched as superior in our Constitution.

This made the enjoyment of rights previously regarded as sacrosanct and untouchable to in fact bend or shrink in order to give effect to the constitutional superiority of these norms and values, such as equality, human dignity, life, freedom and security of the person, privacy, freedom of expression, freedom of association, citizenship etc.

In Chapter 1, Section 2 – The Founding Provisions, the supremacy of the Constitution is established in these words:

“This Constitution is the supreme law of the Republic, law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.“

There is a very disturbing statistics that in South Africa no less than one million people are evicted from farms- even more disturbing is that most the land owners involved in these evictions, inspite of the fact that they have land they could dispose of refuse to do so, relying on the land owners’ veto to do so.

The Minister of Land Reform and Rural Development in a recent case has been blocked by the invocation of the land owners’ veto in a case where she wanted to buy the land from Rainbow chickens, but was refused, in spite of the fact they own 22 parcels of land in the region, part of which they could easily part with, in the national or public interest. Surely, such a situation is not only untenable but actually amounts to the dog wagging the tail, and not the other way round.

There are two Constitutional Court cases on the point of whether or not a land owner’s veto may be the last word on the matter.

Delivering a majority judgment, in Jan Klaase and Elsie Klaase vs Jozia Van Der Merwe and Others, Matojane J opens with the following words:

“Most people who are occupiers of farmland are a vulnerable group in our society. These include female occupiers who are frequently not joined in eviction proceedings instituted against their spouses or partners. This makes that class of occupiers susceptible to arbitrary evictions as a consequence of actions of their spouses or partners. As a result, no substantive grounds for their evictions are made and properly considered by a court before they are evicted with their spouses or partners. The upshot of this is hardship, conflict and social instability “

The facts of the case are that Mr and Mrs Klaase lived on a farm over a period of thirty years. However when Mr Klaase was evicted and the municipality joined the action.

The court held that Mrs Klaase was successful in her appeal against an eviction, which meant that the land owner’s veto could not be the determinant of the matter.

In another case, Yolanda Daniels vs Theo Scribante and Others, Mdalanga J, opened his majority judgment, with the following remarks, words reported to have been uttered by an old man, Mr Petros Nkosi, at a community meeting in the Eastern Transvaal:

“The land, our purpose is the land; that is what we must achieve. The land is our whole lives: we plough it for food; we build our houses from the soil; we live on it; and we are buried in it. When whites took our land away from us, we lost the dignity of our lives; we could no longer feed our children; we were forced to become servants; we were treated like animals. Our people have many problems; we are beaten and killed by the farmers; the wages we earn are too little to buy even a bag of mielie-meal. We must unite together to help each other and face the Boers. But in everything we do, we must remember that there is only one aim and one solution and that is the land, the soil, our world.“

Early in his judgment he quoted O’Regan, J when she addressed herself directly to human dignity, she said: “The importance of dignity as a founding value of the new Constitution cannot be overemphasized.

Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings; human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many other rights that are specifically entrenched in [the Bill of Rights]“

The facts in this case are that Ms Yolanda Daniels was a domestic worker and head of her household. She and her minor children lived in a dwelling on Chardome Farm for about sixteen years. She wanted to effect some improvements on her dwelling so she could live more comfortably in human dignity.

The Court in the end looking at the right of the owner of the land, on the one hand, and the right, guaranteed by the Constitution, for a person to live in human dignity, the Court, on the other hand, came to the conclusion that the land owner,s veto power was limited by the constitutional right to live in conditions of human dignity, under a constitutional dispensation.

The court quoted Zondo J in Hattingh, where he stated; “ In my view, the part of section ^(2) that says: balanced with the rights of the owner or person in charge, calls for the striking of a balance between the rights of the occupier, on the one side, and those of the owner of the land, on the other. This part enjoins that a just and equitable balance be struck between the rights of the occupier and those of the owner. The effect of this is to infuse justice and equity in the inquiry.“

Effectively, this is what the Court did in this case.

In fact it is more than amazing that Parliament, did not take advantage of these Constitutional Court judgments and effect changes in the Expropriation Act of 1975, as amended, and make it a law that the land owner’s veto will always be overridden by the constitutional imperative of people having to live in conditions of human dignity. This is the essence of these two judgments, that it would be anachronistic to continue to treat ownership as it was viewed in times past in a modern constitutional democracy, just as it would be to treat and venerate a monarchy, generally seen as old fashioned in the context of a modern democratic state.

Surely, if the land owner, s veto were allowed to carry the day, the land reform process, in general, as well as land redistribution and land tenure security cases would be brought to a standstill, the state held to ransom. Whereas if the Minister were empowered by relevant legislation that where she made an offer to purchase a particular piece of land in the public or national interest, and the landowner refused unreasonably so, she would be able to proceed with expropriation in the normal course. This would put paid to the so-called landowner’s veto. The supremacy of the Constitution as “the supreme law of the Republic, law and conduct inconsistent with it would be invalid, and the obligations imposed by it must be fulfilled.“

Dr Wallace Amos Mgoqi is an Advocate of the High Court, Holder of 3 Honorary Doctoral degrees in Law, UCT, UNITRA-WSU, CITY UNIVERSITY OF NEW YORK, USA, Sir Sidney & Felicia Kentridge Human Rights Award, Chairman: Ayo Technology Solutions Ltd, In his personal capacity.

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