Is race part of expropriation?

UNCLEAR: WHAT WILL REALLY MOTIVATE NIL AND MARKET-VALUE ORDERS?

- GABRIEL CROUSE

Advocate Tembeka Ngcukaitobi is an outspoken political proponent of "nil" compensation being paid to some white people in cases of land expropriation.

In a recent interview, Ngcukaitobi, who is closely associated with the EFF, criticised aspects of the Expropriation Act, suggesting it contradicted itself and lacked revolutionary mettle.

However, he was mainly positive about the wide, new discretion given to judges to decide when a person should get "market value" and when they should get "nil" for their property.

Ngcukaitobi said Section 25 of the constitution was not really a "property clause", but "is actually an anti-property clause".

Section 25 is supposed to protect everyone, stating: "No one may be deprived of property except in terms of law of general application" and guarantees expropriation will come after "just and equitable" compensation.

How could it be an "anti-property clause"? To explain, Ngcukaitobi said: "I usually make these two examples. Take a white man...".

It is worth pausing on the fact that Ngcukaitobi's account of how judges should think about ordering "nil" compensation begins with race, specifically "white".

"Take a white man who has received land as a consequence of inheritance. But we can trace from the arrival of Jan van Riebeeck that this land was acquired improperly by violence, conquest, theft, everything associated with colonialism.

"But they are not using the land. They are living in Germany. In that area is a large community that is in need of housing."

That should trigger "nil compensation" on Ngcukaitobi's reading "because the land is not productively used".