The right to property is historically important, because during apartheid so many people were unjustly deprived of their property by the state. Many communities were forced to leave their homes, which were either taken over by other people, or flattened. This shattered the social fabric and economic livelihood of such communities as District Six in the Cape and Sophiatown in Johannesburg.
This section in the Bill of Rights does leave some room, however, for the state to expropriate a person's property in the public interest, if that person is properly compensated for their loss. It also seeks to ensure that people have a right to own at least as much property which will allow people to lead a dignified existence.
No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.
Property may be expropriated only in terms of law of general application
- for a public purpose or in the public interest; and
- subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.
The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including
- the current use of the property;
- the history of the acquisition and use of the property;
- the market value of the property;
- the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
- the purpose of the expropriation.
For the purposes of this section
- 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; and
- property is not limited to land.
The state must 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.
A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.
A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).
Parliament must enact the legislation referred to in subsection (6).