Land: Amending Section 25 a ‘great moment in South African history’ – Justice Albie Sachs

02/03/2019 Jan Gerber

Former Constitutional Court Justice Albie Sachs described amending Section 25 of the Constitution, to allow expropriation without compensation, as a “great moment” in South Africa’s history.

“It is painful. It has to be disruptive. The status quo is not satisfactory,” he told the Ad Hoc Committee to Amend Section 25 of the Constitution on Friday morning.

Sachs said the Constitution was drafted to be an “entrenched Constitution” that won’t be easily amended.

“We wanted it to be there in fair weather and bad weather,” he said and cautioned against a rushed amendment.

He added that he was a “little alarmed” when he saw the amendment had to be completed before the end of this term.

He said there were two ways in which the Constitution could be amended. You can have a “very laconic amendment” where just a few words are amended, or you can have an amendment which acknowledges that it is a significant moment in the country’s history and reflects this. Such an amendment would have a preamble. Sachs favours such an amendment.

He said the preamble would be an important guide to what the intention of the amendment is. The drawback would be that the drafters will fight over every word, Sachs warned.

“This not just a technical change [to the Constitution]. This affects the nation.”

He said the process must also enable nation building.

“The first step to nation building is to acknowledge the tension.”

He said it shouldn’t only be acknowledged as a fact, but “from the heart”.

Former tourism minister Valli Moosa said when the Constitution was drafted, Section 25 wasn’t included to protect white people’s land ownership. He said it was included after much debate as one of the most painful things about apartheid was how black people were removed from their land without compensation.

He also called on the committee to ensure that South Africans understood what it was busy with.

Moosa, who was closely involved with the drafting of the Constitution, also warned against rushing the amendment.

The committee is expected to meet again this coming Friday to hear from more experts.