Compensation at Market Value for Land Reform? A Critical Assessment of the MalaMala Judgment’s Approach to Compensation for Expropriation in South Africa

Abstract

As the State seeks to move away from the ‘willing buyer, willing seller’ approach to determining compensation for expropriations in the context of land reform, the Property Valuation Act has been passed. It proposes determining compensation for expropriation with regard to all factors listed in section 25(3) of the Constitution on the assumption that this will de-emphasise market value in favour of a more holistic approach. This assumption is undercut by the recent MalaMala judgment in the Land Claims Court, where a consideration of the section 25(3) factors found no reason to deviate from market value. This paper critically assesses the MalaMala judgment. It suggests that the judgment over-emphasised market value in its approach, both in its approach to the nature of compensation and its application of the section 25(3) factors. It argues that such an approach neglects the varied understandings of the nature of compensation in comparative international law, ignores the unique language of section 25(3), and elides the historical context of land acquisition and the consequent value of land reform. The paper therefore argues that the judgment should not impede the implementation of the Property Valuation Act. “This Act therefore, seems to us like a one-edged knife - it cuts a big piece off the native and is very gentle with the European. The white man is told: ‘If the natives do not carry out the landlord’s wishes, chase them off the farm’ but the natives are not told where to go to.