Arthur Chaskelson 42

Died 1 December 2012 at the age of 81. Defended Mandela during the Rivonia trials. Here are some other points he made: Do those who blame the Constitution for lack of transformation want a legal order in which human rights are not entrenched, and Parliament is supreme, where as a former South African Chief Justice of those times observed in 1934: Parliament may make any encroachment it chooses upon the life, liberty, or property of any individual subject to its sway . . . and it is the function of the courts of law to enforce its will.[21] If this is what they want, they should say so, so that a sensible public debate can take place around such issues. Property law has been an area of transformation that has been particularly difficult. The complexity of that problem lies beyond the scope of today’s conference; and it is not the focus of the attack on the judiciary, though it is raised by some in attacks on the Constitution. I should make clear, however, that I do not accept that the Constitution prescribes that compensation must be what a “willing buyer” would pay “a willing seller”, which is sometimes heard as being one of the causes of the problem. The Constitution permits expropriation of property in the public interest which is different to expropriation for public purposes. Given our history the public interest would in my view encompass expropriation of land pursuant to a reasonable land redistribution policy. This is borne out by section 25(5) of the Constitution, a subsection of the property clause of the Bill of Rights, which requires the state to 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. Subsection (4) of the same clause provides specifically that 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. Compensation is payable for expropriated land.[22] Old legislation from the apartheid era dealing with expropriation is still in place,[23] despite the Constitutional Court having urged the government to amend it to bring it into line with the Constitution.[24] The constitutionality of the Act has not been challenged and courts have had to construe its provisions as far as possible in accordance with the requirements of the Constitution. The Constitution does not entrench the willing buyer willing seller formula. Its provisions are much more nuanced than that. They require the amount of the compensation and importantly also, “the time and manner of payment” to reflect “an equitable balance between the public interest and the interest of those affected” having regard to various factors. Market value is one of the factors but there are others, including the history of the acquisition and use of the property, the extent of state investment and subsidy in it, and the purpose of the expropriation. [25] These provisions and the relatively unrestricted fiscal power vested in the national government under Chapter 13 of the Constitution, would in my view permit the adoption of a reasonable land redistribution policy. I do not underestimate the political or economic difficulties of formulating and implementing such a policy. Those are political questions that have to addressed in the political forum.