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9 Inspiring Women in the Nigerian LegalTech Space

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Kelechi Achinonu, Founder Techlawyered and Technology Lawyer

In celebration of International Women’s Day, 2020, Techlawyered would like to share with you the stories of extraordinary women in Nigeria who are innovating in their various roles, while leveraging technology to improve the legal practice and access to justice.

Rahila Olu-Silas Ambassador, World Legal Summit (West Africa)

Biggest Success in LegalTech

Collaborating with Open Law Library Washington DC, a U.S.A based Not-for-Profit Organization to automate the process of Bill drafting, codification, and publication of laws in digital formats in Nigeria

What has been your biggest challenge in Legal Technology?

Researching the legal framework that will enable the adoption of Machine-Consumable legislation in Nigeria. This will enable emerging technologies to consume our laws through APIs and process them without the human factor.

What motivates you to keep going?

The possibility of change in the way legal services is delivered in Nigeria

Funkola Odeleye , Co-founder and CEO at DIYLaw.ng

Biggest Success in LegalTech

I am not sure we have hit our biggest success yet but being able to simplify legal services and topics and making them attainable and understandable comes close

What has been your biggest challenge in Legal Technology?

The problem that we are trying to solve is making legal services accessible and our biggest challenge is how to make it accessible for those without access to technology. It is an irony of sorts.

What motivates you to keep going?

The sheer number of jobs that are being created because people are able to launch their businesses through our platform keeps me going. Also, getting kind words and referrals from people who have used our platform is an affirmation that we are doing something right.

Also Read : Women in Tech: Interview With Anna Collard, Founder Popcorn Training – A KnowBe4 Company

Adejoke Are , Co-founder/Project Lead, The Flemer Project

Biggest Success in LegalTech

I run an organization – the Flemer Project – that helps indigent pretrial detainees conclude their matters in court as quickly as possible, by leveraging on the support of young volunteer lawyers who directly provide legal representation to these detainees.

Although we are never physically present in court to monitor the performance of our volunteer lawyers, incorporating technology into our solution has made monitoring and evaluating their work quite a seamless affair. Through this approach, we have been able to provide legal representation to almost 200 indigent pretrial detainees and to secure the release of 60 of them from prison.

What has been your biggest challenge in Legal Technology?

I don’t have any technical experience or skill in building technology platforms and this has been a drag on the development of a comprehensive technology platform needed to manage our overall operations.

What motivates you to keep going?

The passion of our young volunteer lawyers who go over and beyond to give their best to people who can never repay them, and the fact that our solution literally changes people’s lives by helping them regain their freedom.

Oluwatosin Amusan , Product Development Lead, Mylaw.ng

Biggest Success in LegalTech

Delivering legal services to customers via technology, from the comfort of their couch. The fact that my team and I were able to develop products and show value enough to earn the trust of customers who end up drawing on the products on mylaw.ng and coming back for more.

What has been your biggest challenge in Legal Technology?

Constantly answering the question “Is legal technology a viable sector in Nigeria”. Looking at it from a global perspective with 3 unicorns in legal tech this question does not surface in the international scene. However, In Nigeria, we have quite a number of legal tech startups who have to prove themselves 10 times harder, show double the traction required to prove that this is a viable sector.

What motivates you to keep going?

The refusal to settle for mediocrity. I make it a ritual to look back at works I have done in various facets of my life every six months, and without a doubt, I see the growth not just intellectually but in physical form. It is easy to get complacent with doing just what is required, but there is always room to improve and do better. No one changed the world by doing what just was required of them.

Faith Obafemi , Head of Strategy, Future-Proof Intelligence

Biggest Success in LegalTech

Establishing as a recognized expert in the blockchain space in less than 2 years. This has been a never-ending journey that has stretched me intellectually, financially, emotionally and otherwise. But, I have been better for it. I have met some of the most amazing persons on this journey. People who help broaden your horizon.

What has been your biggest challenge in Legal Technology?

Breaking/building a tech foundation. In the early days, things were just mostly Greek to me. But, the more I kept at it, the familiar it became and the easier it was to understand.

What motivates you to keep going?

Money! Hahaha, I know most people would’ve been expecting something knight worthy like passion to help others, desire to impact, etc. Well, why all that is great, it still requires money. I am yet to see a broke person help another or have an impact on others.  So, yes, money motivates me to keep going. Because, with money as a tool, I can achieve other things that I hold dear.

Rhoda Obi-Adigwe, Founder Wemora

Biggest Success in LegalTech

Our greatest success was when Hill gave us an award and a grant for our legal software which aids in the writing of will and creation of trust online. This was very inspiring to us knowing that our efforts were being recognized.

What has been your biggest challenge in Legal Technology?

Our biggest challenge to legal technology is cultural and traditional bias. People are still skeptical to include their personal and private details online making it difficult to prepare legal documents for them. This fear also arises from the fact that the country has no stringent data policy laws.

What motivates you to keep going?

The legal tech space is evolving and we are beginning to see most traditional things done online like the CAC providing platforms for business registration, so our motivation is to keep pressing knowing fully well that these changes and policies will soon affect our own part of legal IT.

Yinka Bada , Lead Product Manager, LawPavilion Business Solutions

Biggest Success in LegalTech

One of the things I can consider as part of my biggest success in legal technology is two-fold:

i. My involvement in conceptualizing and facilitating the development and continuous improvement of software solutions that solve challenges around Practice Management, Legal Research and Legal Drafting for lawyers and judges, hence improving their efficiency by making it easier for them to do more in less time than usual. I’ve been working with a team of bright minds to continuously improve the leading Electronic Law Reports platform; the only one with Legal Analytics, and most cited in courts by top lawyers, and judges of both the Court of Appeal and Supreme Court.

ii. Leading and mentoring at different times,  young and aspiring Product Managers and Software Engineers  to passionately seek to identify the pain points in our justice delivery system, and  proffer innovative solutions

What has been your biggest challenge in Legal Technology?

What I can consider as a challenge for me in legal technology is the huge amount of time, efforts and resources it has taken over the years to build and communicate the value of legal-tech solutions to the conservative legal industry; the sweet thing, however, is that this same industry is now embracing technology fully, and even asking for more

What motivates you to keep going?

The joy of facilitating an accelerated (albeit gradual) access to justice in Nigeria-  the possibility of having the practice of law and ultimately, the dispensation of justice continually become technologically improved for more efficiency and effectiveness.

Nankunda Katangaza , Co-founder, African Law & Tech Network (ALT Network)

Biggest Success in LegalTech

I guess my biggest success in legal technology was in following my hunch that there was a need and interest on the part of African legal professionals in technology and what it could do for the legal sector and creating the ALT Network to kick-start that conversation on the continent. The ALT Network has grown to over 150 individual and business members over the past two years and has a thriving community and activities across the continent which I could not have predicted when we set up the platform!

Engaging with the fast-growing African tech community has brought incredible insight into the legal and regulatory needs of tech disruptors across all sectors. I am delighted that the Network has quickly grown into a valued pan-African interlocutor in the discussion between lawyers, technologists, and regulators to build effective, responsive and progressive frameworks for tech growth in Africa.

What has been your biggest challenge in Legal Technology?

My biggest challenge is also one that can be described as a ‘first world problem’ in that it is the challenge of opportunity and time – so many opportunities, not enough time! In the short couple of years, it has been around, ALT has attracted a significant following and interest from across the African legal and tech sectors.

Law cuts across each and every area of personal, public and commercial life and as such, ALT and its membership have a role to play across the continent from influencing public policy to creating tools for delivering access to the law to all. Finding the time to explore and follow all the possibilities and requests alongside a full-time job does keep me up at night!

What motivates you to keep going?

I have to say that the energy and enthusiasm of the ALT members is more motivation than anyone could ask for! Each day brings a new member. Each week brings a new idea and opportunity in a different country from an existing member so there’s never a quiet moment.

But more than anything, the prospect of bringing together people and entities from across the continent who are all driven by the same thing – to create and build prosperity for all Africans through innovative tech use and creating an enabling legal environment for success. It has also been amazing to meet so many Africans working in different sectors and industries and to collaborate with some of them.

Our recent partnership with Africa Digital Heritage, for example, to explore the legal issues arising in tech and the preservation of African cultural heritage was eye-opening and inspirational. I look forward to ALT continuing to be at the heart of similar collaborations and conversations over the years.

Also Read: Women in Tech: Interview With Elaine Wang, Cloud and Software Solutions Director for Rectron

Odunoluwa Longe, Country Director, Acceleration (West Africa) at HiiL

Biggest Success in LegalTech

My greatest success is seeing the entrepreneurs succeed. Success here does not just entail in competitions but in the ecosystem as well.

What has been your biggest challenge in Legal Technology?

My biggest challenge has been finding businesses that are solving justice problems and are focused on doing the same. A lot of people do not realize that justice is beyond just legal tech, It should be more focused on people gaining access to services that actually help them solve their problems.

What motivates you to keep going?

I am motivated by the need to help entrepreneurs and see them succeed.

Please join Techlawyered to celebrate these Wonder Women of Legal Tech.

Article By: Kelechi Achinonu

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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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