Expropriation bill update

The much-debated Expropriation Bill was passed by the National Assembly on 28 September, after the DA, EFF, Freedom Front Plus, IFP, and African Christian Democratic Party all put forward their objections - for varying reasons.

The bill, tabled in 2020 and rejected in 2021, currently allows the expropriation of land only for ‘public purposes’ and ‘in the public interest.’ This is stipulated in section 25 of the Constitution – known as the property clause.

In addition to ‘just and equitable compensation,’ the bill now makes it possible for the expropriation of land with ‘nil compensation’ under specific circumstances. These could include state land, abandoned land, or land held for speculative purposes.

During the debate on the bill, Patricia de Lille, Minister of Public Works and Infrastructure tried to assure South Africans that the government has no intention of using the bill to arbitrarily seize land from private owners.

“It is extremely dangerous to suggest that government will arbitrarily take people’s property, such as their homes,” she said. “Land is an emotive issue. This Expropriation Bill is an effort to replace the Expropriation Act of 1975 with a Bill that is constitutional and has been certified by the Chief State Law advisor and senior counsel as such.”

De Lille said that the Expropriation Bill makes explicit what is implicit in Section 25 of the Constitution.'

“Expropriation of property with nil compensation is not a silver bullet. Expropriation is only one acquisition mechanism that, in appropriate cases, for public interest, will enable land reform and redress, as agreed by the Presidential Advisory Panel Report on Land Reform and Agriculture.

“Clauses 12(3) and (4) of the bill deal with instances where it may be just and equitable to pay nil compensation for expropriation of property in the public interest. The Constitution provides that compensation for expropriation must be ‘just and equitable’ while having regard to all relevant circumstances.

“The bill outlines circumstances when it may be just and equitable for nil compensation to be paid. It does not prescribe that nil compensation will be paid in these circumstances. The bill provides that the amount of compensation will be determined by the courts,” said de Lille.

Opposition

DA MP Samantha Graham-Maré disagreed, saying the Expropriation Bill is not a tool for land reform. Rather it is a mechanism for punishing private property owners using arbitrary criteria, which is not easily measurable, nor does it address historical spatial disadvantage.

The proposed DA amendments - including limiting expropriation to specific instances only for state land - were defeated in a separate division by 226 votes against, 87 for, and nine abstentions.

The EFF criticised the bill for limiting land redistribution and leaving land mostly in the hands of existing owners - unless the state is prepared to pay market-related prices.

IFP MP Sanele Zondo said their party also rejected the bill because of its bad legal drafting and because it was ‘the ANC covering up its ineffective land reform.’

Pieter Groenewald, leader of the Freedom Front Plus called on De Lille to take the bill to the Constitutional Court to ensure it was up to standard - particularly as property up for expropriation goes well beyond the question of land.

“It is about power. The bill will have a negative effect on South Africa’s already troubled economy,” he said.

Industry view

Tony Clarke, Managing Director of the Rawson Property Group, says that whatever happens, land reform is going to play a vital role in the future of our country.

“How we achieve that reform will say a lot about our values as a nation and will deeply influence our standing in the international community. I’m optimistic that we’ll find a solution that empowers the people without impinging on our fundamental human rights.

“However, the restitution of land to victims of dispossession or the creation of homes for the many deprived of such an opportunity cannot be achieved on the basis of arbitrary deprivation of property from legitimate owners.”

He says the Expropriation Bill has to address the constitutional inconsistencies of the 1975 Expropriation Act to allow the expropriation and redistribution of land for the public good. However, it cannot be done on the basis of depriving one to give to another.

“Fair and equitable compensation has to be maintained. We need to remember that property ownership is a fundamental human right. To intentionally undermine that right would make a mockery of our constitution, which is regarded as one of the best in the world. Therefore, constitutional protections in this area must be upheld."

Courtesy of Sarah-Jane Meyer Of Private Property