The conditions under which government can take your land and property is a controversial issue worldwide, and the rules under which such expropriation can be done in South Africa are about to change.
The Expropriation Bill currently being finalised by the parliamentary portfolio committee on public works, has been more than seven years in the making and has found surprising levels of acceptance, albeit sometimes with reservations, from a wide range of individuals and stakeholders.
The bill only allows for expropriation in the public interest or for a public purpose, specifically excluding any other attempts by the state to claim property.
“Public interest” is defined to include land reform, reforms to bring about equitable access to all South Africa’s natural resources and other reforms to redress the past racial discriminatory laws or practices, whereas “public purpose” includes “any purposes connected with the administration of the provisions of any law by an organ of state”.
The bill orders that any expropriation must include written notice, setting out in great detail that all possible stakeholders must be informed.
The DA has said the prescribed period in which all the steps must be taken, is too rapid and have called for the process to be slowed to allow for more meaningful and thorough participation.
If the owner of the property agrees with the expropriating authority on the expropriation and the amount to be paid, the expropriation can proceed.
Importantly, the amount of compensation to be paid “must be just and equitable reflecting an equitable balance between the public interest and the interests of the expropriated owner or expropriated holder, having regard to all relevant circumstances, including the current use of the property, the history of the acquisition and use of the property, market value, the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property, and the purpose of the expropriation”.
If there is disagreement about the amount to be paid, the expropriating must make an offer of just and equitable compensation to the owner in writing, furnishing full particulars of how such amount is made up and calculated.
The owner then has 60 days to query the offer, or it would be assumed that the offer is accepted.
Crucially, a court must, in the absence of agreement, determine any dispute between an expropriating authority and an expropriated owner or expropriated holder on the amount to be paid.
The strongest criticisms of the bill have come from two ideologically disparate sources: the Institute of Race Relations and the Sankarist grouping of former EFF firebrand Andile Mngxitama.
The IRR’s Anthea Jeffrey has argued that courts are not given enough powers to decide whether expropriation should take place in the first place, rather giving the courts only the power to decide on the amount of compensation to be paid. The IRR’s views have been strongly challenged by the state, which claims the IRR misrepresents the content of the bill.
At the other extreme, Mngxitama believes section 25 (the property clause) of the Constitution should simply be scrapped and land should be taken by the state from its presumably white owners in the way it was taken without compensation from its black occupants during the period of colonialist struggle.
Deputy Minister of Public Works Jeremy Cronin, who is closely shepherding the bill through parliament, believes both critiques to be misplaced.
“Currently, the legislation on expropriation is unconstitutional. Everyone, except perhaps the EFF, wants it to be constitutional.
“The property clause in the Constitution requires a law of general application, which is what this bill is meant to be.
“When addressing the view that all land is stolen and must be returned, criminal law applies and charges must be laid. The theft must be proven and dealt with by the Asset Forfeiture Unit.
“Constitutionally, it is important that public interest and public purpose is defined, in the interest of redress and enhancing equality in a just, equitable and non-arbitrary way.
“The bill envisions a negotiated process. It is important that the issues of compensation and administrative justice is being left up to the courts,” Cronin said.
“From the right, the criticism boils down to: The Reds want to take our land.
“Well, if the Reds had wanted to do that, it could have easily been done in terms of the 1975 Act, but that would have fallen short of the Constitution. So we didn’t.
“The general feedback is that the architecture of the bill is fine. The concerns centre on implementation.
“We will tweak the bill before it goes to the National Assembly. The DA input – which has thus far been sensible – included that we look at alternative dispute resolving mechanisms and longer periods for inputs. The IRR also emphasised the latter point,” Cronin said.
He said the government was open to considering proposals that every expropriation went to court automatically, though that had not been agreed to yet at the time of writing.
Jan-Jan Joubert heads Tiso Blackstar Group’s parliamentary bureau.
Expropriation Bill envisions negotiated process in court
The Expropriation Bill currently being finalised by the parliamentary portfolio committee on public works, has been more than seven years in the making and has found surprising levels of acceptance, albeit sometimes with reservations, from a wide range of individuals and stakeholders.
The bill only allows for expropriation in the public interest or for a public purpose, specifically excluding any other attempts by the state to claim property.
“Public interest” is defined to include land reform, reforms to bring about equitable access to all South Africa’s natural resources and other reforms to redress the past racial discriminatory laws or practices, whereas “public purpose” includes “any purposes connected with the administration of the provisions of any law by an organ of state”.
The bill orders that any expropriation must include written notice, setting out in great detail that all possible stakeholders must be informed.
The DA has said the prescribed period in which all the steps must be taken, is too rapid and have called for the process to be slowed to allow for more meaningful and thorough participation.
If the owner of the property agrees with the expropriating authority on the expropriation and the amount to be paid, the expropriation can proceed.
Importantly, the amount of compensation to be paid “must be just and equitable reflecting an equitable balance between the public interest and the interests of the expropriated owner or expropriated holder, having regard to all relevant circumstances, including the current use of the property, the history of the acquisition and use of the property, market value, the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property, and the purpose of the expropriation”.
If there is disagreement about the amount to be paid, the expropriating must make an offer of just and equitable compensation to the owner in writing, furnishing full particulars of how such amount is made up and calculated.
The owner then has 60 days to query the offer, or it would be assumed that the offer is accepted.
Crucially, a court must, in the absence of agreement, determine any dispute between an expropriating authority and an expropriated owner or expropriated holder on the amount to be paid.
The strongest criticisms of the bill have come from two ideologically disparate sources: the Institute of Race Relations and the Sankarist grouping of former EFF firebrand Andile Mngxitama.
The IRR’s Anthea Jeffrey has argued that courts are not given enough powers to decide whether expropriation should take place in the first place, rather giving the courts only the power to decide on the amount of compensation to be paid. The IRR’s views have been strongly challenged by the state, which claims the IRR misrepresents the content of the bill.
At the other extreme, Mngxitama believes section 25 (the property clause) of the Constitution should simply be scrapped and land should be taken by the state from its presumably white owners in the way it was taken without compensation from its black occupants during the period of colonialist struggle.
Deputy Minister of Public Works Jeremy Cronin, who is closely shepherding the bill through parliament, believes both critiques to be misplaced.
“Currently, the legislation on expropriation is unconstitutional. Everyone, except perhaps the EFF, wants it to be constitutional.
“The property clause in the Constitution requires a law of general application, which is what this bill is meant to be.
“When addressing the view that all land is stolen and must be returned, criminal law applies and charges must be laid. The theft must be proven and dealt with by the Asset Forfeiture Unit.
“Constitutionally, it is important that public interest and public purpose is defined, in the interest of redress and enhancing equality in a just, equitable and non-arbitrary way.
“The bill envisions a negotiated process. It is important that the issues of compensation and administrative justice is being left up to the courts,” Cronin said.
“From the right, the criticism boils down to: The Reds want to take our land.
“Well, if the Reds had wanted to do that, it could have easily been done in terms of the 1975 Act, but that would have fallen short of the Constitution. So we didn’t.
“The general feedback is that the architecture of the bill is fine. The concerns centre on implementation.
“We will tweak the bill before it goes to the National Assembly. The DA input – which has thus far been sensible – included that we look at alternative dispute resolving mechanisms and longer periods for inputs. The IRR also emphasised the latter point,” Cronin said.
He said the government was open to considering proposals that every expropriation went to court automatically, though that had not been agreed to yet at the time of writing.
Jan-Jan Joubert heads Tiso Blackstar Group’s parliamentary bureau.
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