Expropriation of land without any compensation can only take place in extreme circumstances, as the new bill looks to align with South Africa's constitution, by defining how and when this controversial process can take place.
Public debate around the Expropriation Bill, published on 9 October 2020, has largely centred on the concerns about the rights and interests of property owners. Expropriation itself is a matter of course in SA — but for limited purposes of obtaining land for public use such as roads, dams, schools or other infrastructure.
Public discourse on expropriation of land, however, narrowly addresses the question of how to acquire more land and accelerate the pace of land reform, says Professor Ruth Hall, of the Institute for Poverty, Land and Agrarian Studies (PLAAS).
“What the government has not done thus far is expropriate for the purposes of redistributing land to the landless, restoring land to people with historical land claims. This is despite the explicit provisions in the constitution that say it may do so,” says Hall.
'Issue of historical land claims'
Those opposing the Bill, such as the Institute for Race Relations, have only addressed the interests of landowners. “No mention has been made of the rights and interests of those claiming land — for instance, the tens of thousands of claimants who have lodged their claims before the end of 1998, and who are now into their third decade of waiting for the rightful return of their land.”
Hall’s examination of the expropriation bill shows seven distinct steps in an expropriation process.
“The state can serve a notice of intention to expropriate on an owner of a property. The owner has 30 days to indicate any objections, to indicate what compensation they consider fair, including details of improvements made, and to identify who else would be affected, including unregistered rights holders.
“The state then has 20 days to accept or reject the owner’s request and offer compensation, providing full details of its reasons for its compensation offer (in my view, the government will struggle to meet this timeline). The owner has 40 days to indicate if they are in agreement. The state then decides whether or not to proceed, and in a “reasonable time” publish a notice of expropriation in the government gazette.
“After gazetting the owner has 20 days to accept or reject. Then expropriation may or may not proceed. Finally, the owner has 180 days to dispute the compensation in court.
Hall says, “Taken together, this looks like close on a year of to and fro between owners and the government. It is far more elaborate and detailed than the processes required for expropriation for public purposes.”
Break deadlocks provided in the Constitution
This is a legal process subject to review by courts. Without the option of expropriating, land claims can be held back by what Hall references as a “landowner veto”. Expropriation is needed to break deadlocks as provided for in the Constitution.
“The main risk with this bill is that after all these years in the making, once enacted the state won’t use it. As it has for the past 25 years, it may choose to allow landowners’ rights and interests to supersede those of the landless.”
Spatial injustice continues to be a key feature of the post-apartheid urban landscape in South Africa, according to research being done in PLAAS's Equitable access to land for social justice project.
“The majority of poor urban dwellers live in informal settlements with limited access to economic opportunities and essential services. Addressing the spatial inequalities in the cities is a key part of efforts to broaden access to land as required by the constitution.”
PLAAS says "government remains bound by the Expropriation Act of 1975, adopted to protect white farmers whose land was expropriated by the apartheid government for incorporation into the homelands".
This old law permits the government to expropriate property to use for public purposes, and requires compensation at the market rate, whereas the current constitution says compensation must be “just and equitable” and sets out five criteria for determining what this is in each case.
'A new law is long overdue'
“So, on the face of it, we have a law that contradicts the constitution. A new law is overdue.”
But corruption remains a concern. Hall adds, “A further worry is how the government will allocate the expropriated land, and how transparent and democratic this process is. This concern is founded on its track record in recent years, when the initial pro-poor focus of land reform gave way to elites getting properties on cheap rentals, or even for free, from the state."
For this reason, the state's power to expropriation should be constrained by obligations to accountability and transparency.
Another core issue ignored by the lobbyists is that those facing expropriation include not individuals but, more commonly, large communities, says Hall.
“How will people with informal and customary rights in the former bantustans, on farms, in informal settlements and elsewhere, be treated? Surely special provisions should be adopted to secure the rights and interests of large and poor communities who are unable to respond to an expropriation threat in the same way that an individual owner might?”
Hall says the answer is not to stand in the way of the bill.
'The Expropriation Bill by itself is not enough'
“Rather, we can recognise that it’s a necessary condition for real and meaningful change. But she argues that by itself, it’s not enough.
Hall proposes two specific measures to bolster the expropriation process, and make it democratic and responsive to the needs of society:
First, a land redistribution bill to set out what the state must do to ensure every citizen can gain access to land on an equitable basis (as required in section 25(5) of the constitution). This would say what should trigger an expropriation and when the state should be compelled to act. This proposal was already set out in broad outlines by parliament’s high-level panel in 2017, chaired by former president Kgalema Motlanthe and endorsed by the presidential advisory panel on land reform & agriculture in 2019, chaired by the late Vuyo Mahlati. While expropriation is about state power, what is still needed is confirmation of people’s power to hold the state to account.
Second, a compensation policy should set out how the state will weigh up all relevant considerations to arrive at an offer of compensation that is just and equitable. It should interpret the constitution’s criteria for determining compensation and say when the state will seek to pay minimal or no compensation, or modest compensation, or market-related compensation, or a premium above this level. This is a law that is applicable to all South Africans, and a policy needs to clarify how different situations will be approached, in a fair, just and consistent manner.
“It’s high time a new expropriation bill is enacted to confirm the state’s powers that were negotiated in the 1990s — so that we can get on with the urgent task of ensuring that the state is pushed to use these powers. As a country, we cannot afford another 25 years of inaction. As a country we cannot afford another 25 years of inaction,” she says.
PLAAS recently hosted a webinar to explore the significance of the Expropriation Bill and the changes that should be made to the Bill to ensure equitable access to land. Click here to watch the webinar.
*Article sourced from Property 24*
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