Why state land plans are unconstitutional

Government proposes to interfere in property sales,
but the South African constitution makes no legal provision for it to override landowners’ rights. In fact, it forbids it.

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The proposed legislation on landownership in South Africa has caused a lot of anxiety. From a legal point of view, the proposals raise many interesting questions.The first involves the rights of an elected body, such as government, to interfere with the real rights of a property owner. To fully appreciate the issue of rights, let’s look at the law on real rights to property.Historically, property owners possess all rights to their properties, with the exception of mineral rights, which vest in the state.

But mineral rights are of no concern when government seeks to limit the rights of landowners in selling their property.The owners of a thing are fully entitled to do what ever they please with it, as long as the exercise of that right doesn’t transgress upon the rights of others. According to the “subtraction from the dominium test”, in the case of Ex Parte Geldenhuys, only a real right can subtract from an owner’s full ownership or dominium. If legislation is to limit the right to sell property, by what operation of law has the government suddenly possessed itself of a real right to a portion of the title to landowners’ fixed property?The limitation wouldn’t be government’s real right, because it can’t be.

The constitution guarantees rights of ownership, or real rights. To my knowledge, no constitutional amendment has been written giving government rights in and to the land owned by its citizens.
Generally, only real rights can be registered against the title deeds of land. In special cases, rights of persons have been registered, such as persons that own some sort of servitude or a right to income, but even these rights lean towards real rights in and to the property.

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Of course, except in cases where the government has servitude or other real rights to a specified piece of land, farmers generally don’t share real rights with it.In other words, the South African government doesn’t own South Africa. Registered title-deed holders own the land that makes up the country. If this is correct, what government has must be another kind of right. Could it be a personal right? Personal rights may well dictate how a property might be used, as for example in neighbour law, a sub-category of the law of delict.I’m not sure what right to regulate land sales government supposes it has. The only rights it can have are those entrusted to it by the constitution.

Flawed counter-arguments
No doubt, the proponents of the move to limit landownership will claim the right to do so under the limitation clause in the constitution.The argument will be that landowners of a definite and particular class should have their rights in and to their property limited to make land more easily available to landless people. Basically, successful farmers’ rights will be limited in favour of the rights of people who can’t farm without a great deal of assistance from the taxpaying public. If the issue is about the size of farms, it is because the land holdings of indigent farmers are becoming smaller due to population pressure.

The argument might then be that the rights of those farmers who practice good population control, so that their children might farm on economically sized holdings, are to be limited in favour of those indigent farmers or aspirant farmers that don’t.Both arguments are flawed and seem geared to move against the tide of progress.Is that what the limitation clause in the constitution was drafted for? I’d say what’s required are some constitutional law experts with enough fire to stand up to the encroachment on rights the constitution was designed to protect.     |fw