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Tiyani Majoko: New York City based legaltech startup Founder on 10 years in the legal industry

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Tiyani Majoko is a lawyer and the Co-founder of New York City based legaltech startup Anü, a legal services marketplace. She is experienced in product design, identifying customer segments (user and buyer personas), data analysis and Agile. Tiyani talks to Alaba Ayinuola on her 10 years journey in the legal industry, starting from Biglaw, to in-house counsel, to running a small firm, to starting a legal tech company and I am always exploring something new. Excerpt.

In the beginning:

Life in Biglaw

On 3 January 2011, I pulled up to 22 Fredman Drive which were the offices of Eversheds (now Hogan Lovells). It was my first day at work as a Candidate Attorney, a 2-year journey as an apprentice in a law firm which culminates with passing the attorney bar/board exams. I bounced out of bed both nervous and excited that I was taking the first step in my career. I asked my dad to help me iron my outfit for the day; white shirt and black slacks, then I tied back my dreadlocks and put on my sensible black heels that he had bought me.

My dad, who is also a lawyer, was visibly beaming that I had been selected as a Candidate Attorney at an international law firm and I was following his footsteps. He had taken 2 weeks off to help me furnish my apartment, get comfortable with the route to work (though I didn’t have a driver’s license yet) and settle into my new life as a solicitor. Then he returned to his own law firm and practice in Zimbabwe.

At the end of orientation week, I knew the law firm life was not for me. I started my first 8 months rotation in a litigation team, where the only highlight of that rotation was the team and free lunches at advocates chambers. During that rotation I may or may not have forgotten to go to court to note a judgment. The daily time sheets, indexing and pagination of court files, carting files up and down to advocates offices for a 0.4 time entry and forced interactions at month end drinks were the bane of my existence. People would look forward to, or dread, the month end billing report as it revealed who was rising or bubbling under budget.

It was only later when I learned what really matters isn’t what you bill, but what you invoice and eventually collect!

I also learned about office politics and the power players of the firm if you wanted to be offered a position as an associate at the end your 2 year period as a Candidate Attorney.

The rainmaker whose team operated by its own rules (coming in at 10am and leaving at 4pm), the partner who had been at the firm all his 40 year career, the partners who struggled to make budget and how we all tried to stay away from them because they wouldn’t be in a position to retain you as an associate. There was also the partner who never took on a female or black associates, the partner who only took on LGBTQ associates and so I made a concerted effort to join the team of the partner who only took on Black associates.

She ran the mining team, working with international mining companies in helping them to obtain and retain their licenses to operate. This was the first time I felt like I was doing something I enjoyed- it was an all Black, female team. We would go on long road trips to visit mining clients, communities or regulators. I got to spend a lot of time out of the office- away from my time sheet, going to mines and meeting regulators- often these trips would allow for some sight seeing, such as visiting the Big Hole in Kimberly and going underground in a coal mine.

As a mining lawyer I felt like I was doing something important by contributing to the development of communities. I got my first glimpse into politics in the wave of Marikana, investigating unsafe working conditions, developing environmental plans for rehabilitating mine property, working with corporate executives to understand their strategy and the adrenalin of speeding down the N1 from Joburg to Pretoria to meet arbitrary regulator deadlines for various submissions.

I loved the centrality of the role and how each matter brought new challenges.

Each client had a different problem and the partner I worked for gave us free rein on matters. This built my professional confidence to execute and communicate as a professional. Although she would manage the relationship with the client, I would send the emails, they clients would call me if they had questions, etc. My criticism of the team was that it was too familial for a work environment and we could have used more intelligent tools to track matters, create reports and be efficient- which would have helped us to bill more. In 2013 the Black bubble was burst and the gang broke up.

Throughout my career I wanted to maintain that feeling of being connected to people, processes and policies while creating a product that’s profitable.

Going In-House

After Biglaw, I tried a couple of different things. I went in-house in an oil and gas company, where my boss lived in Durban and I was based in Joburg- so basically I have been remote since 2013. It was my first time working alone, after being accustomed to an office with 400 lawyers. I had to learn to trust my work, be thorough, do research and create my own support network of mentors. I was running legal and business affairs- so I would put together decks, find co-investors on projects and lead meetings after a short phone call with him. He was part of the young, new money Black elite that had made money from government contracts and had former President Jacob Zuma on speed dial. He opened my eyes to a whole class of Black, young, rich entrepreneurs that traveled to Bali on private jets. In those environments I quickly learned how political favor is volatile and qualifications to do the work are optional. At the time Zuma was ousted, a lot of them- including my boss- went broke.

Starting Out

I was 5 years into my career and had been disappointed by employers, so I made a bet on myself. I had some savings, worked out a rent free living situation and talked my varsity best friend into starting one of the first legal consulting firms in South Africa. I learned about finding clients, keeping clients, expanding revenue streams, business models, leadership, networking and expansion. We were so adorable when we started, see our launch video below.

I also launched Africa’s first lawyer on demand service. As a founder, I was able to find that feeling again, but I quickly realized that our service was too manual for scale in a way that mattered. Part of it was not knowing what tools we could use for a small services focused businesses and as I set my sights on moving away from a lifestyle business- I knew that technology would essential to our success. I was 8 years into my career at this point, running a good profitable company and contemplating the hard pivot to grad school in a foreign country, with a 6 figure price tag.

Starting Up

Ultimately I made the decision and attended Cornell with the vision of going back to my business then things changed. Instead, I become a founder- again- which I wrote about here.

While in school I thought of becoming a Product Manager, however it wasn’t presented to the law students as a career option, it was solely for Engineers and MBAs. Initially, I didn’t care because I didn’t understand most technical terms and I was just trying to keep up with my own course work. In January 2020, the blitz interview season was upon us, the technical students and MBAs were filling up their diaries so fast and law students were high key scrambling. I started to look at the PM job requirements and I was like “Hey, I know this stuff.. well some of it.” I went to the career services office like:

I have always been of the opinion that whatever an MBA graduate can do; a lawyer can do- just with a calculator.

I was benched very hard and told to stay in my lane- to look for roles in legal tech companies- maybe doing business development, or sales if I no longer wanted to practice law.

If the school didn’t see what I saw for myself, then I had to make it happen. All this was happening on the backdrop of a Coronavirus outbreak, BLM protests and many graduates being unable to find work. I half-heartedly applied for jobs, while I turned my full attention to a class project that had some real-world traction. When I went full time with Anü, I looked at this as an opportunity to do 2 things — either run a successful tech startup or have enough skills to rebrand myself as a PM. Either way I was setting myself up to win.

Next

My 5th pivot is loading as I am staring down another path. It’s less scary because I have learned how to get good at taking wild bets on myself adaptability. In contrast, my father has been a lawyer his entire life. He graduated from law school 32 years ago, each year he has renewed his practicing license and I honestly envy him for finding the thing he is good at, that he also enjoys. I enjoy certain aspects of the law, but not all the ways that it is practiced. I need room to experiment, to be playful and to also not always follow precedent. I am extremely blessed because my dad has supported these expeditions. Now it’s time for his investment to pay off.

5 Tips on Making Career Pivots

  1. Create A Big Vision for Your Life.
  2. Be Intentional About Skills To Acquire.
  3. Know Your Core Competency.
  4. Network Like Crazy.
  5. Community (I created The Legal Werk for mid-career legal professionals who want to make a pivot, switch, climb or reset their careers to have a source of support.) If you want to join us sign up for updates here.
  6. Know Your Tolerance for Pain.
  7. Have Faith.

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Companies Act: The Role Of A Shareholder And Director

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By Advocate Dennis Chamisa and Dr Kim Lamont-Mbawuli (Legal Practitioner) In collaboration with Dech Legal & Associates and NLM Attorneys 

1.1. PURCHASING SHARES IN A PRIVATE COMPANY AS PER SECTION 39(2) OF THE COMPANIES ACT

Section 39(2) of the Companies Act (herein referred to as the “Act”), provides that each shareholder of a private company has a right before any other person who is not a shareholder of that company, to be offered and to subscribe for a percentage of the shares to be issued with equal voting power of that shareholder’s general voting rights immediately before the offer is made, where the company is then compelled to make an offer to all of its voting shareholders pro rata to their respective percentages of the total number of voting rights, before it may issue any shares to a third party. 

1.1.1. WHO IS BOUND BY THE SHAREHOLDER AGREEMENT

The binding force of the Shareholders Agreement stems from the law of contract, whereas section 15(6) of the Act, governs the status of a Company’s MOI and all MOIs need to be filed and registered with CIPC. The disadvantage of a Shareholders Agreement is that it binds only those shareholders who are party to it. It does not bind any other shareholders, unless they consent to be bound. 

1.1.2. WHAT IS A SUBSCRIPTION AGREEMENT 

A subscription agreement is a formal agreement between a company and an investor to buy shares of a company at an agreed-upon price. The subscription agreement contains all the required details. It is used to keep track of outstanding shares and share ownership (who owns what and how much) and mitigate any potential legal disputes in the future regarding share payout subscription agreement will include the details about the transaction, the number of shares being sold and the price per share, and any legally binding confidentiality agreements and clauses.

1.1.3. SUBSCRIPTION OF SHARES AGREEMENT 

In the event that the Company proposes to issue any shares, other than shares issued in terms of options or conversion rights in terms of section 39(1)(b), or capitalisation shares in terms of section 47 or if the consideration for any shares that are issued or to be issued is in the form of an instrument such that the value of the consideration cannot be realised by the Company until a date after the time the shares are to be issued, or is in the form of an agreement for future services, future benefits or future payment by the subscribing party.

1.2. WHAT IS THE ROLE OF A DIRECTOR OF A PRIVATE COMPANY AS PER SECTION 76 OF THE COMPANIES ACT 

By accepting their appointment to the position, directors and prescribed officers agree that they will perform their duties to a certain standard, and it is a reasonable assumption of the shareholders that every individual director and prescribed officer will apply their particular skills, experience and intelligence to the advantage of the company. 

The Act codifies the standard of directors’ conduct in section 76. The standard sets the bar for directors very high. The intention of the legislature seems to be to encourage directors to act honestly and to bear responsibility for their actions – directors should be accountable to shareholders and other stakeholders for their decisions and their actions. However, with the standard set so high, the unintended consequence may be that directors would not be prepared to take difficult decisions or expose the company to risk. 

Since calculated risk taking and risk exposure form an integral part of any business, the Companies Act includes a number of provisions to ensure that directors are allowed to act without constant fear of personal exposure to liability claims. In this regard, the Companies Act has codified the business judgement rule, and provides for the indemnification of directors under certain circumstances, as well as the possibility to insure the company and its directors against liability claims in certain circumstances. 

The Act makes no distinction between executive, non-executive or independent non-executive directors. The standard, and consequent liability where the standard is not met, applies equally to all directors.

In terms of this standard, a director (or other person to whom section 76 applies), must exercise his or her powers and perform his or her functions. these are the following; 

  •  In good faith and for a proper purpose.  
  • In the best interest of the company, and  
  • With the degree of care, skill and diligence that may reasonably be expected.

1.3. BREACH OF FIDUCIARY DUTY

 The Companies Act prohibits a director from using the position of director, or any information obtained while acting in the capacity of a director, to gain an advantage for himself or herself, or for any other person (other than the company or a wholly-owned subsidiary of the company), or to knowingly cause harm to the company or a subsidiary of the company.

Directors have a fiduciary duty to act in the best interest of the company as a whole. Directors owe this duty to the company as a legal entity, and not to any individual, or group of shareholders – not even if the majority shareholder appointed the director. 

Directors are obliged to act in good faith in the best interest of the company. They should act within the bounds of their powers, and always use these powers for the benefit of the company. Where a director transgresses his or her powers, the company might be bound by his or her action, but he or she can be held personally liable for any loss suffered as a result of the transgression. 

In discharging any board or committee duty, a director is entitled to rely on one or more employees of the company, legal counsel, accountants or other professional persons, or a committee of the board of which the director is not a member. However, the director does not transfer the liability of the director imposed by this Act onto such employees. Directors of a company may be held jointly and severally liable for any loss, damage or costs sustained by the company as a result of a breach of the directors’ fiduciary duty or the duty to act with care, skill and diligence. 

The Act sets out a range of actions for which directors may be held liable for any loss, damage or costs sustained by the company. These actions include the following;  Acting in the name of the company without the necessary authority  Being part of an act or omission while knowing that the intention was to defraud shareholders, employees or creditors  Signing financial statements that were false or misleading in a material respect.

1.4. CIVIL CLAIM AGAINST THE DIRECTOR 

Section 77(3)(b) of the Act, as read with section 22 of the Act, penalises and holds directors personally liable to the company for any loss incurred through knowingly carrying on the business of the company recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purpose. 

CONCLUSION 

Shareholders play a critical role in terms of the South African Companies Act of 2008, with reference to the affairs of the company. Just any contract, shareholders agreement is the essential document that binds the relationship of shareholders who are a party to it. Notwithstanding the existence of Memorandum of Incorporation, (MOI) one of the roles of a shareholder is the appointment of directors. Therefore, the MOI provides “mechanism of power equilibrium” between the shareholders and directors of the company. In that the shareholders using their voting rights can authorize critical transactions and any dividends proposed by the directors. 

As discussed above, subscription agreement is a contract that is between the company and investor for the purchase of shares at an agreed price. Such an agreement will have the terms and conditions agreed upon and can also be used to track any outstanding shares thus to mitigate possible legal disputes. Last but not least any director of the company ought to measure to the defined standard as per section 76 of the Companies Act, thus with reference to skills, experience and intelligence. In terms of the Act, directors ought to act with utmost honesty and should bear responsibility for their actions, as they are obligated to act in good faith and for the best interest of the company. 

In conclusion, should there be any breach of the fiduciary duty by the director, section 77 (3) (b) of the Act read with section 22 of the Act penalizes and holds the directors personally liable to the company for any loss incurred through knowing conducting the affairs of the company recklessly with gross negligence. In such instances the veil of protection will be lifted so as to protect the company as a separate entity. 

ACKNOWLEDGEMENTS

We acknowledge Dr Maribanyana Lebeko who is part of the advisory for Simanye Clinic for his assistance with respect to compilation, editing and proofreading of this article.

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Baker McKenzie Report 2022: The rapid rate of competition law development across Africa

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By Lerisha Naidu, Partner, Angelo Tzarevski, Associate Director, Sphesihle Nxumalo, Associate and Zareenah Rasool, Associate, Competition & Antitrust Practice, Baker McKenzie Johannesburg

Baker McKenzie’s latest Africa Competition Report 2022 provides a detailed analysis and overview of recent developments in competition law enforcement and competition policy in 32 African jurisdictions and regional bodies. The Report outlines how, over the past two years, African competition regulators have actively engaged in efforts to address pandemic-related challenges, but there has also been a general upward trend in competition policy enforcement across the continent.

This trend is highlighted by a number of significant recent developments in competition law regulation across the continent. Countries and regions with recent competition law developments include the Common Market for Eastern and Southern Africa (COMESA), Egypt, Ethiopia, Ghana, Kenya, Mauritius, Mozambique, Namibia, Nigeria and South Africa.

COMESA

There were various developments with regards to COMESA in 2021. In February 2021, the COMESA Competition Commission issued a Practice Note in which it amended the interpretation of the term “operate””. Prior to this, a party “operated” in a COMESA Member State if it had turnover or assets in that Member State in excess of USD 5 million. This requirement has now been removed, effective from 11 February 2021, and a party will “operate” in a COMESA Member State merely if it is active in it (without a minimum turnover or asset threshold). The impact of this will be to make it easier for a transaction to fall within the scope of the COMESA merger control regime.

The COMESA Commission has also recently issued Draft Guidelines on Fines and Penalties, Draft Guidelines on Settlement Procedures and Draft Guidelines on Hearing Procedures.

In September 2021, the COMESA Commission issued its first penalty for failure to notify a transaction within the prescribed time periods, which penalty amounted to 0,05% of the parties’ combined turnover in the Common Market in the 2020 financial year. This was imposed in relation to the proposed acquisition by Helios Towers Limited of the shares of Madagascar Towers SA and Malawi Towers Limited.

In December 2021, the COMESA Commission imposed a fine for failure to comply with a commitment contained in a merger clearance decision.

The COMESA Commission also conducted eight investigations into restrictive business practices in 2021.

Egypt

There were numerous recent developments in Egypt, including in November 2020, when the Competition Authority announced that the Egyptian Prime Ministry had approved the Prime Minister’s draft law amending certain provisions of the Egyptian Competition Law 3/2005. In February 2021, the Egyptian parliament’s Economic Affairs Committee started the discussions on the new amendments. The Competition Authority has also recently initiated market inquiries in relation to multiple sectors including healthcare, food, electronic and electrical appliances, automotive, real estate, media and petroleum sectors.

In April 2021, the Economic Court of Cairo issued a ruling in a criminal case brought in March 2020 by the Competition Authority, against five individual poultry brokers for colluding to fix the price of chicken to the detriment of consumers and chicken breeders. The court fined each broker 30 million Egyptian pounds (approx. USD 1.6 million) for agreeing to fix the price of a kilogram of chicken.

In July 2021, the Competition Authority initiated a criminal case against two companies who agreed to submit identical offers in one of the practices of the General Authority for Veterinary Services, in violation of Egyptian competition law.

The head of the Competition Authority announced plans for the creation of an Arab Competition Network to enhance cross-border cooperation between antitrust enforcers in the Middle East. The ACN would be the first to provide Arab competition authorities with an official platform to meet and discuss prominent issues and impending changes to antitrust law. The network would be run by the 22 members of the League of Arab States, which includes Egypt, Syria, Lebanon, Iraq, Jordan and Saudi Arabia, among others.

Ethiopia

In Ethiopia, the Trade Competition and Consumer Protection Authority is working on regulations to provide guidance on the application of the Trade Competition and Consumer Protection Proclamation (No 813/2013). Proclamation No. 1263/2021, which is expected to be enacted and come into force in 2022, transfers the powers of the Trade Competition and Consumer Protection Authority to the Ministry of Trade and Regional Integration.

Ghana

In Ghana, a draft Competition and Fair Trade Practices Bill is before parliament for consideration.

Kenya

The Competition of Authority in Kenya finalised its study into the regulated and unregulated credit markets in the country and issued its report in May 2021. The Authority further developed the Retail Trade Code of Practice 2021, in consultation with stakeholders in the retail sector, to address the abuse of buyer power issues arising from the sector. Also in 2021, the Competition Authority conducted a dawn raid in the steel industry and issued draft joint venture guidelines, to clarify the rules and filing requirements of joint venture arrangements.

Mauritius

The Competition Commission in Mauritius concluded a market study in the pharmaceutical sector on 8 June 2021.

Mozambique

There were numerous developments in competition law in Mozambique in 2021, including that the Competition Regulatory Authority became operational in January 2021. Regulations on Merger Notifications Forms were enacted by means of Resolution No. 1/2021 of 22 April 2021. The Regulations prescribe the different forms to be completed for merger notifications, as well as the details of the information and documentation required. Regulations on Filing Fees were enacted by means of Ministerial Diploma No. 77/2021 of 16 August 2021. Filing fees are currently set at 0.11% of the turnover of the parties in the previous year, up to a maximum of MZN 2,250,000 (approx. USD 35,000). Amendments to the Competition Regulations were enacted by means of Decree No. 101/2021 of 31 December 2021.

Namibia

A Competition Bill is in progress in Namibia, and the Competition Commission expects to submit the final version of the Competition Bill to the Ministry of Industrialisation and Trade by the end of June 2022.

Nigeria

On 2 August 2021, Nigeria adopted the Merger Review (Amended) Regulations 2021, which set out new fees applicable for merger filings. The Federal Competition and Consumer Protection Commission launched and publicised an investigation into the alleged anticompetitive conduct of five companies in the shipping and freight forwarding industry in October 2021. 

South Africa

There were various developments in South Africa in 2021, including in May 2021, when the Competition Commission launched the Online Intermediation Platforms Market Inquiry, focusing on four broad online intermediation platforms and market dynamics that specifically affect business users – eCommerce marketplaces, online classified marketplaces, software app stores and intermediated services (such as accommodation, travel, transport and food delivery). The Inquiry is ongoing with a provisional report scheduled for release on 10 June 2022, and the final report scheduled for release in November 2022.

In April 2021, the Commission released its market inquiry reports on Land Based Public Transport. Furthermore, in April 2021, the Commission published its final report on an impact assessment study it conducted in relation to COVID-19. The report sets out the findings of the Competition Commission regarding the impact of the COVID-19 block exemptions and the enforcement work done by the Competition Commission during the pandemic. The Competition Commission’s fifth Essential Food Pricing Monitoring Report, which is released quarterly, focused on tracking the impact of the COVID-19 pandemic and consequent economic crisis on food markets.

In May 2021, the Commission issued, for comment, draft guidelines on Small Merger Notifications, which contain specific guidance applicable to the assessment of digital mergers.

Notably, 2021 was the year when the Commission prohibited a merger solely on public interest grounds, making it the first transaction to be prohibited on non-competitive grounds. Ultimately, however, the merger was conditionally approved before the Competition Tribunal.

In November 2021, the Commission released its Economic Concentration Report, which highlighted patterns of concentration and participation in the South African economy. The report includes details on the Commission’s power to launch market inquiries into highly concentrated industries, as well as its increased authority to impose structural remedies on businesses in these sectors.

In March 2022, the Commission issued Guidelines on Collaboration between Competitors on Localisation Initiatives, which are aimed at providing guidance to industry and government on how industry players may collaborate in identifying opportunities for localisation and implementing commitments related to localisation initiatives in a manner that does not raise competition concerns.

In March 2022, the Commission launched a market inquiry into the South African fresh produce market, which will examine whether there are any features in the fresh produce value chain, which lessen, prevent or distort the competitiveness of the market.

The Commission concluded various settlement agreements with market players (e.g., grocery retailers and laboratories) to reduce the prices of goods and services.

 

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Exploring The Role Of Section 25 Of The South African Constitution: Land Grab Or Land Reform

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Land Law (Photo: Lawithaz) Article by: Dr. Kim Lamont-Mbawuli 

Land expropriation without compensation in South Africa continues to create unease among local and foreign residents and investors alike. However it is imperative to explore deeper insights regarding land expropriation without compensation. Which is part and parcel of the government’s commitment to land reform.

The Constitution purports that expropriation of land must be done ‘subject to compensation. This is a hurdle for any land reform legislation designed to allow the state to expropriate without compensating. Albeit, it is important to read the obligation to compensate with s 25(3) of the Constitution, which deals with how the amount of compensation must be calculated, for the specific portion of land. 

Section 25 (3) of the Constitution

Provides that compensation payable must be ‘just and equitable’ of which just and equitable should reflect the following;

  1. current use of the property;
  2. history of the acquisition and use of the property;
  3. market value;
  4. extent of state investment; and
  5. purpose of expropriation

In light of the above it requires that the owner of the Land receive compensation. However this compensation does not have to be market value but rather that the owner of land receive what is just and equitable. Thus, if regard is given to  Section 25(3)(a) to (e) the owner of the land may receive any amount that may be qualified as just and equitable in the circumstances. Furthermore it seems that there will be times when the Constitution requires that only a nominal amount of compensation needs to be paid in very special circumstances.

Section 25(8) of the Constitution provides that:

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).

Section 25(8) impedes on 25(2)(b) in that the lack of compensation where a nominal amount is just and equitable. The state may be able to justify such a violation because  Section 25(8) expressly provides that any departure from the requirements of section 25(2)(b) must be done in accordance with the provisions of section 36(1) of the Bill of Rights, of which Section 36(1) can limit a person’s rights.  However this limitation must be reasonable and justifiable in an open and democratic society. It must promote basic human dignity, equality and freedom. And with this said the following factors must be given consideration; 

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.’

Key take home in respect of Section 25 of the Constitution

  • the state can only expropriate private property if there is compensation.
  • the amount of compensation may vary depending on what is just and equitable in the circumstances;
  • a nominal amount of compensation may be regarded as just and equitable in some circumstances; and
  • even where a nominal amount of compensation is required, the state may nonetheless elect not to pay anything at all in which case the owner’s right will be limited, but the limitation could still be lawful if it is a reasonable and justifiable limitation in the circumstances.

This raises the question of whether there is a need to amend Section 25 of the Constitution. Bearing in mind that Section 25(3)(a) makes the ‘current use of the property’ a relevant consideration when determining the amount of compensation. A farming operation vis-a- vis a open piece of land that is not in use will be priced differently. The furtherance of land reform must be carefully considered wherein the expropriation of land is given to those without access to land.

Giving regard to the above the expropriation without compensation may work in areas where the state carefully identifies land. That was historically acquired in an unjust manner or where the state heavily subsidised the owner’s thereof. Thus the land being expropriated should ideally be land that was not invested by the owner and remains not in use. 

Consequences if Section 25 is amended without careful considerations,-

Section 25 of the Constitution protects property and not just land. Thus this could imply that state could retain or obtain property without reasonable compensation. In order to fully understand the magnitude one must look at the definition of property which is inclusive of movable an immovable property.

Given the far reaching effects of Section 25 and what is deemed property, it may have a detrimental effect on foreign investment if the policy space and regulations. Therein are not given sufficient, careful and rational consideration.

In closing,  the government can implement a policy of expropriation without compensation via legislation. But such legislation will have to be very carefully thought out so as not to unconstitutionally infringe on Section 25. Nor fail a rational review test with carefully thought out legislation.

 

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