Deputy Minister of Public Works on the Expropriation Bill

Journalist: In the Portfolio Committee on Public Works this morning a Member wanted to know about shares of bank accounts. How exactly is property defined?

Deputy Minister: In terms of the definition of property it came out during 2008 and the media were raising it again. In the value of property it was not as narrowly defined; are you chasing after shares or some grannies life saving. Clearly, by and large we are not looking at just farms but landed properties. We’ve been advised, and this had always been a problem with legislation, that any attempt to over define can easily venture you into an unseen situation. This was evident in the FNB constitutional court ruling, where the court advised against seeking to over define property. In times of war we might take Andre’s bakkie and expropriate it. The direction we are going is not to define property, other than in the general way it is defined in the property clause of the Bill of Rights. I was very pleased to see in the Rapport of the 31 of March that the legal advisor to Agri South Africa was quoted as saying expropriation was an emotional topic but the Bill complied with the Constitution. We found that encouraging.

Journalist: I want to ask a question about unregistered rights. Can it be read into, when a farm dweller for instance, has security of tenure- a farm that the state was able to record this unregistered right, that could transform into an informal right to land. And that the piece of land that the person stayed on that part of land can become that person’s property.

Mr Andre Meiring: We must be careful not to create an impression that this process as outlined in the Bill is brand new and foreign to existing expropriation authorities. The Bill did not bring about a total new process. It was about bringing about the standardise process. On the right of a farm dweller in a property, in determining just and equitable expropriation, we must take into account the value of the property resting in name of the registered owner, but also the right of the individual that have the occupational right, there is no intention to change ownership. If the state needed the property, it would just compensate those affected. It was not an intention to usurp the existing right by making the informal occupant the formal owner. This was not the process.

Journalist: Have you done any assessments on the costs that would be involved in the Bill? I understand the Office of the Land Valuer-General (LVG) would be involved in valuation side but the investigation side appeared to be an onerous one as well. I’m not sure lot of municipalities would have that capacity at this point.

Deputy Minister: When we talked about expropriation we did not talk the Minister of Public Works, but so do municipalities and provinces. They need to build the capacity if they do not have it to do the investigations. It was an unfair process to look at it from the side of the state. All of the ANC members in the Portfolio Committee on Public Works were raising issues of the expropriated party. They were right in asking these issues; it was ensuring that the way we go about expropriation advanced public interest public purpose. But that it did not do so unfairly and unjustly to those affected by expropriation. So we are trying to get that balance right. Those challenges were absolutely right, and therefore we need to build the capacity.

Journalist: Minister you referred to the Zimbabwe situation. Is this Bill arising out of our overwhelming concern about farmland being concentrated in the hands of pale faces? Is this where the Bill was directed or is this a complete misreading of it?

Deputy Minister: Yes and no. Clearly a significant part of expropriation is about land reform and land restitution at this point in our history. It was for this reason that we have built into this Bill an Office of the LVG. The Department of Rural Development and Land Reform had proposed an office that was independent for the LVG. The function of the LVG would be to advise when there was purchasing. This was because the state often got taken to the cleaners in cases of expropriation and land reform sometimes by interested parties. They got paid way above the market value. We do need to develop state capacity to derive valuation not just for expropriation. In the State of the Nation Address (SONA) there was a reopening of the process for those who missed the deadline. As far as the Department of Public Works was concerned this was about a generic law, and general application for all forms of expropriation.

Journalist: If there were already 150-200 expropriation authorities in place, what is the motivation for the Department being drawn into this? Was it because of the vacuum of political will to use already existing laws to enforce and push forward whatever was needed in terms of economic development? The Department of Rural Development and Land Reform was an expropriating authority, and yet the land distribution had fallen behind. Surely it is not a question of law but a question of political will. The same applied to municipalities in terms of the spatial changes to our apartheid geography in urban areas. Six years ago, we talked about municipalities using some of the open spaces in our cities for low cost housing. If municipalities have the expropriation authority status already, again was not a question of legislation but political will. If you would like to comment on that please.

Deputy Minister: Let me start with Marion’s question. First of all it was not a 150-200 expropriation authorities; it is a whole lot more. Every municipality, all 9 provinces and ten-line departments were expropriation authorities. They were all covered by different pieces of legislation giving them power. It was the pieces of legislations that were 150–200, which then gave those powers with circumstances under which a particular line department might expropriate. What the Department was trying to do was to introduce a uniform approach on some of these processes. They were not wholly new but certainly we are providing a benchmark in terms of expropriation.

You will appreciate that I will not comment on the presence or absence of political will. You are right, not that you right about the absence of political will, but that the two issues must be distinguished. This was not about achieving land reform, or achieving targets and so forth. Clearly Government experienced many challenges around land reform and land restitution. Some of them related to another question where you will have land restitution, and farms that lie fallow or collapsed. That situation was a challenge and another challenge which has been acknowledged by the Department of Rural Development and Land Reform is that a lot of the intended parties to restitution don’t want to do farming, they wanted cash. This was one issue that the Department was addressing; land restitution and land reform for sustainable rural livelihoods and not just for the righteousness of the case. That fell with a different department and was not related to what the Department was trying to achieve with the legislation.

Journalist: When there was a dispute about compensation, when would the owner be paid the expropriated part? Assume the owner wanted to take you to court, would that person have received the amount you wanted to pay? When did Government take the property? Does it happen after the court case?

Deputy Minister: The question is interesting as when to government paid when there was a dispute. They also need to bear in mind that the courts were bound also by the Bill of Rights. Therefore the courts could not just look at the market value of the property, but would also need to look at considerations as well; it was not just the Department that was tied down by those limitations but the courts. I don’t know. I’m interested in the answer.

Jessica Moodley: The question on when payment on compensation be made- the draft bill proposed that 80% of the amount to be paid was on the date of expropriation. If there was a dispute relating to the amount, it would be covered under the 20% to be paid late but immediately you will have your 80%, the balance would be paid at the resolution of the court case.

Journalist: Just for clarification is the date of expropriation and the date of taking hold of that property the same?

Jessica Moodley: No. The date of expropriation will be your notice, or could be the date indicated in the notice. The date of possession would be indicated as well in the notification.

Journalist: If a municipality in Nkandla decided to build an airport on a certain property, who would get compensation; would it be the Ingonyama Trust or the current occupant. Was there not a case to be made for the granting of free hold title on communal area, because those poor would not have money to go to court and the chief would take all of the money?

Deputy Minister: We do need to think carefully about free hold tenure because of what is happening in the land reform process to people who were often poor in these former native reserves. They acquire free of tenure then sell quickly and you can have massive concentration of ownership. That can be a problem in trying to achieve issues of tenure. I’m entering into a debate which is not my space so let me just stop.

Andre Meiring: It was not in our space to deal with security of tenure. It is not an issue that all of the compensation would go to Ingonyama Trust. The right of the individual family or person that occupied the land must be determined. It became a package deal; so the total compensation would encompass compensation to the title holder and compensation to the title right.

Journaist: How did you describe public interest, and where does the owner lie in terms of that? In other words, if somebody served notices and wanted to contest, whose case was it to prove in court?

Deputy Minister: Either party would need to prove public interest if there was a challenge against it. It just did not rise in court but at the process when notice to expropriate had been issued. In that notice of intention to expropriate the obligation is on the expropriating authority to explain the purpose for this intended expropriation. This would have to be unpacked at some degree and could be challenged at some point. So it’s up to all of us; at the end of the day if it comes to that the Constitutional Court or the court would decide.

Journalist: In terms of the unregistered claims determining whether they were valid or not, how would that be determined? Government has to be explicit about what the use of expropriated land would be; say the land became foreign and was no longer used. What process there to ensure that whoever expropriated the land stuck to what the land was intended for, so that we don’t sit with a streamline process expropriating land going ahead but it was not used for what it was supposed to be. How will those departments be held to account? The juristic person that the department may expropriate on behalf of, could it be a private entity or did it have to be a state department?

Andre Meiring: Unfortunately we do not have empirical data on the actual expropriation that takes place. The only place where we monitor expropriations is when the expropriation is registered against the relevant title deed. Quite often there is quite a bit of a lag between the actual expropriation taking place and the notice of expropriation being endorsed. It is especially in the acquisition of land for infrastructure purposes. It was quite frequently required to expropriate land simply because the acquisition process simply became too protracted. Under normal circumstances this date referred to acquire through negotiations, and the bulk of acquisitions are done through negotiations. It is not as if we expropriate on a daily basis. It was only when the process is protracted and holding up service delivery or the owner took too long to agree.

It was quite a complex process to validate these. And we lean quite heavily on the expertise in departments such as Rural Development and Land Reform to assist in validating the claims and ensuring that we are indeed able to weed out the opportunists.

Deputy Minister: The joint legislation made it explicit that the Minister had a right to withdraw once the land was not used for its intended purpose. Where there was a failure to farm it would be a grey area. But if land was used for any other purpose other than the intended purpose it would be an explicit ground to withdraw.

Journalist: Related to the question around public interest, onto the draft we’ve got a situation of what happened in Zimbabwe whether it was indigenisation laws recently with taking the majority shares in companies like Zimplates. Could that happen under the current definitions if it was judged as in public interest? And also could we get an idea of the current use of expropriation, how often it was used by the state.

Deputy Minister: I’m not sure how to answer the question, but I presume other pieces of legislation in SA meet constitutional muster and expropriation in the public interest or public purpose. I’m not saying we are about to go to indigenisation in Zimbabwe, but I’m saying this needs to be law governed and constitutionally compliant. That’s how I’d like to answer that.

Journalist: If the Bill became law in the last quarter of the year, how do you foresee the plethora of expropriating authorities dealing with this? Do you foresee that there would be a wave of expropriating authorities having to revise their own laws? And if that was foreseen what sought of timeframes were you looking at or are you looking at court challenges.

Deputy Minister: We think by and large not. When the Bill becomes an Act if it does there could still be challenges in any case around expropriation in terms of rights and constitutionality before enacted.

Journalist: I’m just curious to find out about the timeframes that you set out for this Bill. In 2008, this was a really emotionally process and it took months. All sectors were preparing written submissions to the Department. Six months, do you really think you will make the deadline before the general elections next year?

Deputy Minister: Yes, timeframes were tight. The media would be watching. We really are trying to get the widest spectrum of South Africans to understand that we are trying to comply with the constitution. We are looking to have engagements with people from the banking and agriculture sectors. We do hope for a robust engagement. We hope it won’t be an explosive and controversial question.

Journalist: I’ve got a separate question Deputy Minister if you do not mind; when will the Department’s report on Nkandla be published.

Deputy Minister: Indeed the Department had carried out an investigation around the implementation of construction around the project around the President’s residence in Nkandla. I had personally not seen any report. It had been received by the Minister. He had seen a number of anomalies around charging and variation of cost. The Minister had asked the SIU to have a closer review. This was not your question; the question was what will happen with this report. We certainly want to bring that report to Parliament. We have nothing to hide as the Department, but the problem is we can’t break the law. This was covered by the National Key Points legislation. What we are looking at will be to bring this to a multi-party committee that is covered by security clearance. There were broader questions around the specifications for the project, and that did not fall under us. There needs to be a justification for why particular security features were chosen and recommended. We did the building; but there were wider issues in the areas of security. And there needs to be a robust interrogation at a Parliamentary level. It was hard to have an investigation unless the Committee concern was covered by security clearance.

Journalist: Deputy Minister when will this report be brought to Parliament.

Deputy Minister: It will be quite soon; we’ve got the preliminary report, which we’ve made available and briefed the Public Protector and the Special Investigative Unit on.

The media briefing was adjourned.