Expropriation Bill [B4-2015]: public hearings with Deputy Minister in attendance Day 3
Public Works and Infrastructure
05 August 2015
Chairperson: Mr B Martins (ANC)
The National House of Traditional Leaders (NHTL) pointed out the necessity of defining more precisely the notion of ‘property’ and therefore to delimit the Ministerial mandate’s scope. It asked the Department to exclude communal land from the list of assets that could be expropriated by the Department. It suggested the exclusion of municipalities and other departments from the expropriation mandate, in order to avoid the furthering of personal gains at the local level. It said that farm workers should also receive compensation. The latter ought to take historical factors and current use into account. It criticised the Bill’s excessively short expropriation submission period. It pinpointed the systemic delays associated with land jurisdiction.
The Sankara Policy and Political School criticised the current government, and its failure to redress inequalities of the past and empower the majority of poor black people, who were still ‘slaves in their own land’. It pointed out the failure of land reform processes in South Africa and the corrupted nature of the ANC government. It asserted that section 25 of the Constitution, which was rooted in a colonial discourse, should be deleted and replaced with a more aggressive policy, while a Ministry of Land Redistribution should be created, for the existing Department of Rural Development and Land Reform was assessed as rather ineffective.
The Institute for Poverty, Land and Agrarian Studies (PLAAS) contextualised the need for a new Expropriation Bill, notably in order to enhance the process’ constitutionality and challenge landowners’ veto power. It required a more accurate definition of ‘just and equitable’ compensation and more accurate guidelines. It said that the more predictable the process of expropriation would be, the fewer court challenges would occur. It highlighted a correlation between the decreasing ratio of expropriation compensation and the increasing pace of land reform in South Africa. It viewed the Bill as constitutionally aligned, although it threatened communal land and did not provide for a landowner to go to court to challenge the validity of an expropriation, but only to determine the amount of compensation.
The Legal Resource Centre identified clumsy bureaucratic negotiations as delaying land reform processes, and acknowledged the ‘cataclysmic genocidal dispossession’ of land in South Africa exemplified by the forced displacement of 640 000 families between the 1950s and the 1960s. It emphasised the importance of minimising the disruption of expropriated communities, while reducing the jurisdictional delays of the process. It said a provision needed to be added that where land is held by a community or a community is the holder of an unregistered right in land, an expropriation authority must ascertain if provision has been made for reparation and compensation for relocation of households and the dislocation of the community and its institutions, including alternative land, alternative livelihoods and support to re-establish the community.
A clearer and cross-departmental definition of compensation was required from the Department. It proposed two cuts on compensation of 20%, respectively for land historically acquired as a result of abuses and if the purpose of the expropriation was land reform. The Expropriation Bill was associated with the necessity of reforming the mining sector. Invisible rights, that is, informal and unregistered rights, had to be integrated in the compensation process.
The Congress of Traditional Leaders of South Africa criticised the government for its underachievement of land reforms over the past two decades. The redistribution of land to African people should not receive so much controversy for it is self-justified. Traditional and rural communities must be protected, and should not be expropriated. Traditional leaders play a key role in ensuring social stability and performing their role of land custodians.
Questions raised by Members included: why does the NHTL oral submission not match the written one? How would the NHTL assist with the Bill’s implementation once it will be passed? Why would the present Bill increase the likelihood of communal land expropriation? Who exactly stole land in South Africa and when? Who were the rightful owners of the land? Why was historical land dispossession overlooked by the Bill? What should be done in order to enhance the predictability of land expropriation? Why were most presenters white? Is a more aggressive land reform applicable? Should other departments and municipalities play a determining role in the expropriation processes?
Additional remarks included the lack of community involvement in developmental projects, the excessive emphasis placed on ideological concerns to the detriment of effectively addressing the present Bill, the virulence of certain presenters, the ongoing nature of the unequal land exploitation, the racial reality of land exploitation in South Africa, the underestimation of communal land by police makers, the importance of invisible and customary rights in the evaluation of compensation and the positive role of traditional leaders as custodians of the land.
Deputy Minister Cronin said that the Expropriation Bill was one of general application, which could not precisely allocate the requirements of each stakeholder, such as for instance the exclusion of communal land. The Department will consider the structural difficulties associated with poor people’s resort to courts, as well as the evaluation of timelines. The Bill was not exclusively about land reform, yet it would partly address some of its deadlocks. White owners still had the upper hand because of the lack of threats on their land. The right to challenge the validity of the expropriation was implicitly contained in the Bill, and would be more explicitly stated if constitutionally necessary. It acknowledges the importance of taking invisible rights into account.
The representative of the Bathlakoane Ba Manzimnyama clan highlighted that the clan had lost its land and livestock in the Emalahleni area (Mpumalanga). The clan supported the use of expropriation as a legal method to assist the land reform process. The Bill should be given very extensive powers to expropriate land and property from private landowners, at public interest and the proposal was that when expropriation had taken place, compensation must be categorised, depending on the nature of dispossession as: fair market, nominal value and without compensation.
Members asked if there was any instrument to prove if the land was fair market value. They warned about the values that attach to land/property as it was even difficult to come up with calculations to determine nominal or fair market value. It was highlighted that the very suggestion to expropriate the land without compensation was against the Constitution as it explicitly states that there should be a compensation. How was it possible to deal with the fact that those who had stolen land now have title deeds?
The Mthatha Ratepayers and Residents Association strongly believed that the willing buyer, willing seller principle should be completely scratched the system as it was oppressing the previously marginalised and disadvantaged communities. The government needed to set up criteria to expropriate property/land and compensate in an adequate manner that will redress the imbalances of the past and offer enough benefits to all the people in South Africa in the era of democracy. The words “expropriation”, “expropriating authority”, “expropriation register” and “compensation "needed to be clearly defined as these were four pillars of the Bill and, therefore they should be defined for proper understanding and compliance.
The rights and duties of the property owner or holders should be specifically explained in conjunction with the powers and duties of the Minister in order to expropriate the property. The powers to expropriate should be vested in the Office of the President or the Premier of each province for easy control and transparency. The Bill should also provide for broader consultation with the traditional leaders including all the relevant stakeholders during the investigation. The Bill needed to be translated into all official languages and public hearings on the Bill should be conducted in every province, region, local and rural area.
Members asked if the Association was proposing that the Constitution needed to be amended by suggesting that the willing buyer willing seller should be scratched. One Member asked if the suggestion of having the Bill in all official languages was because there had not been enough consultation about the content of the Bill with communities especially those located in rural areas. There was a need to explain how the terms “just” and “equitable” were ambiguous and how these terms could be defined to be in line with the Constitution. How was it possible to ensure that the public interest was determined jointly with communities?
Solidarity said that the expropriation of the land/property essentially implied taking someone else’s belongings and the discussions today should not be focused on whether or not the state should expropriate, but rather when and how the state can expropriate. The Expropriation Bill was clearly not constitutional, well-defined, not rational and socially beneficial and therefore it was undesirable and it should be rejected or reworked. The history of ownership should be clearly defined in the Bill before the commencement of expropriation as the failure to do so will cause arbitrary exercise of power. The Bill also limits the courts to compensation amount and not on the validity of the expropriation and it is problematic that the courts could be restricted in this sense. The issue at hand should be what form the piece of legislation should take in order to facilitate the rule of law and not the rule of men. The grounds for expropriation should be limited to those expressly allowed in the Constitution; the victims of intended expropriation should be given reasons before the expropriation so it can be investigated if they are arbitrary. Full payment should be made before expropriation and the cost of legal proceedings must be relieved in some way. The courts should not be denied an opportunity to adjudicate on the validity and rationality of the expropriation and the victims of expropriation should have full access to the court of law.
Most Members expressed disappointment with the submission as it failed to highlight any content of the Bill but rather focused on the alternative bill that the South African Institute of Race Relations (IRR) submitted to the Department of Public Works (DPW). Solidarity was asked to note the transformative role of the Constitution where it explicitly makes provision for transformation of land ownership. Land ownership attained in the past was unconstitutional as it was only a few people who had access to land/property. It was pointed out that although the Bill itself did not mention anything about approaching the courts, this was a constitutional right of any South African to approach the courts if unhappy with a particular issue.
National House of Traditional Leaders (NHTL) submission
Mr Sipho Mahlangu, Deputy Chairperson at NHTL, expressed his concerns, particularly on the matter of communal land. Section 25(2)(b) of the Constitution confirms the possibility of expropriation, while the notion of property is not solely limited to land, but potentially includes mining rights and unregistered customary assets. The Minister of Public Works could thus expropriate almost anything if judged necessary. He recommended that 'property' should be redefined by the Bill, in order to exclude communal land from it.
Mr Mahlangu said that the NHTL wanted the Minister to be the only actor capable of initiating expropriations, while it encouraged the exclusion other departments and municipalities from the 'expropriating authority', for these entities would potentially rely on this power to further their own interest.
He expressed a certain disagreement with the emphasis placed by the Bill on citizens’ resort to court as guaranteeing the fairness of the process, for he argued that communities represented by the NTHL often do not have the financial resources to engage in legal proceedings. He thus emphasised that section 25 of the Constitution should be more fair.
While he acknowledged the relevance of market value as indicator of compensation, it ought to ultimately take into consideration historical trends and previously disadvantaged individuals, in order to match its underlying values of justice and equity.
He argued that in cases of expropriation, the farm workers currently employed on the purchased land should also receive equitable compensation.
Mr Mahlangu pinpointed certain inconsistencies in the Bill, notably clause 2(3)(c) which stipulated that the costs faced by the Minister in the expropriation process must be refunded by the organ of state which referred the case to the Department of Public Works. He stated that underfunded state entities, which today exist in legions, would never be able to fulfill such a financial obligation.
He criticised the 20 day submission period as excessively short in clause 3(5)(a) and suggested extending the deadline to three months.
He referred to clause 4(4)(a) and stated that while the use of the land ought to be integrated in the compensation process, expropriation should occur even without the consent of both parties, for the greater sake of national transformation.
With regards to clause 5(12)(1)(c), he argued that although market value was key to the compensation’s evaluation, the latter should also appraise the benefit generated by the given land over time.
On clause 22(7)(a), he asked if the courts were adequately equipped to fulfill their arbitrary role, arguing that judiciary processes associated with land expropriation are often characterised by excessive delays. He suggested the delegation of such role to more appropriate and efficient entities.
The Chairperson remarked that the oral submission did not match the written one. Members of the Committee may have faced difficulties in following the organisation’s reasoning and referencing. He urged Mr Mahlangu to forward the actual submission to the Committee.
Ms E Masehela (ANC) agreed but thanked the NHTL delegation for their input.
Mr M FIltane (UDM) asked NHTL what role did the institution conceive for itself once the Bill was passed, and how would it assist the process of expropriation. On the NHTL claims that the compensation evaluation process needed to be improved, what did it suggest to enhance the assessment scheme and to shorten its delay. He asked if NHTL was implicitly suggesting a state reliance on the private sector to effectively perform such evaluations.
Mr K Sithole (IFP) addressed the NHTL concerns that communal land was more likely to be expropriated under the current definition of property in the Bill. He urged Mr Mahlangu to justify such a concern, and to sustain his suspicion with concrete indicators. With regards to the NHTL willingness to exclude other organs of state from the process of expropriation, he pinpointed the incoherence of this statement about the devolution of power. He argued that the very existence of NHTL represented devolution of power, for local communities had allocated their authority to their traditional leaders.
Mr S Masango (DA) agreed with Mr Sithole. What factors led the NTHL to assess the Bill’s formulation of property as increasing the likelihood of the expropriation of communal land. He asked if NHTL was in favour of the 'willing buyer/willing seller' approach to expropriation, as once advocated by government.
Mr Mahlangu replied that the granting of other organs of states and municipalities with a delegation of power which initially occurred for purposes of development in most cases, would fail to effectively address local issues. He emphasised that in communal areas, communities were too often excluded from developmental processes, and that development ought to be need-driven. He nonetheless asserted that the NTHL was working in tight cooperation with municipalities, while the underlying priority of this Bill was to see the occurrence of development.
He responded to Mr Filtane’s enquiry by stressing that once that the Bill was passed, the NTHL, which is a governmental entity, would seek to influence the preservation of communal land, while fulfilling its usual governmental commitments.
He explained to the Committee that traditional leaders could not exist without land. This communal land presently corresponded to 13% of the South African territory. Mr Mahlangu said that many wars had been fought throughout history for this land, whose guardians were today the traditional leaders of South Africa. He reiterated that NHTL’s presence at the public hearing was primarily motivated by the willingness of traditional leaders to protect their land.
He referred to the devolution of power and stressed that NHTL lands were areas of contestation where the prevailing importance of clearly defined roles and responsibilities was unarguable. He stated that if communal land was to be expropriated, it would be contrary to the Bill’s essential purpose of addressing inequalities of the past.
With regards to Mr Masango’s enquiry on the NHTL acceptance of the 'willing buyer/willing seller' scheme, Mr Mahlangu stated that the delays associated with waiting for sellers would be seriously hinder the process, and prevent the Expropriation Bill from challenging the status quo.
The Deputy Minister of Public Works, Jeremy Cronin, indicated that he was looking forward to receiving the updated NHTL submission.
He stated that the Banking Association of South Africa (BASA) had already demanded excluding certain assets from the Bill’s definition of property, while the NHTL was requesting the exclusion of other forms of property, in this case communal land. He stressed that the accommodation of each stakeholder’s specific concern would severely hinder the crafting of the Bill, for the latter ought to be a law of general application. He said that although all institutions were encouraged to contribute to the drafting, the principle of general application remained overarching, for the Bill’s empowerment would shrink in the face of a sharp over-definition.
He explained to NHTL that communal land would only be expropriated if the process was for public purpose, and would ultimately benefit the local community. He gave the example of the construction of roads or dams which could underline the expropriation of a communal land asset.
He agreed with Mr Mahlangu on the fact that the government was engaging in too little consultation with local communities. The Expropriation Bill which relies on clear mechanisms and defined targets, would enhance the process of governmental communication with locals.
Deputy Minister Cronin conceded that with regards to the Department of Public Works’ monopoly of expropriation power and processing of recommendations, certain redrafting may need to occur. Similarly, the Department would seriously considered the difficulty associated with court cases and the systemic restriction for underprivileged people to access judiciary institutions, as raised by Mr Mahlangu.
He claimed that the 'willing buyer/willing seller' approach had not completely disappeared and was just being supplemented by enforced mechanisms. He indicated that the Department would also look into the NHTL criticism of excessively short timelines of 20 days. Although the process ought not to be dragged on forever, which would be detrimental to the community. He concluded his comments by thanking NHTL for contributing to this discussion of national importance.
Sankara Policy and Political School (SPPS) submission
Mr Ncedisa Mpemnyama, associate at SPPS, began his submission by contextualising the present Expropriation Bill. On a historical note, he argued that the compromise which occurred with the drafting of the 1996 Constitution had proven to be rather detrimental to the South African population. He described himself and the previously disadvantaged people of South Africa as slaves in their own land. He referred to section 25 of the Constitution and argued that all current land reform programmes were still rooted in a colonial doctrine. He assessed that given the current legislation and at today’s rate, it would necessitate 100 years for the government to retrieve 30% of the country’s land. R50 billion had thus far been spent on the process, and had only succeeded in expropriating 8% of the land, notably as a result of the policy’s lack of politicisation. He described the Expropriation Bill as politically flawed and economically unrealistic.
He described the initial governmental strategy of 'willing buyer/willing seller' as a blockage to the urgent process of redistribution, while he claimed that land was still being stolen today in South Africa.
Mr Andile Mngxitama, Associate at SPPS and former Member of the EFF, shared with Members of the Committee his enjoyment of being back in the House. He rapidly brought an end to the formalities and argued that the Committee needed more courage in order to acknowledge the reality of the country. He explained that all land had been stolen, in a process which began in 1652 with the arrival of the first European settlers. He described the general application of the Bill as useless and stated that although land was a matter of core importance in South Africa, it was presently not being addressed. He additionally stressed that the government was involved in illegal activities.
He urged Members of the Committee to delete section 25 of the Constitution. He said that if the Department was to claim that the Bill would end the ‘willing buyer/willing seller’ criteria, it would be ultimately lying.
He criticised the Bill for lacking a clear definition and criteria for the notion of ‘just and equitable’ expropriation.
He stated that the country had not moved forward in terms of redistribution, particularly as the government would regularly change targets yet never achieve its objectives.
He thus proposed that section 25 of the Constitution be removed and replaced, while acknowledging the stolen nature and all black persons' right to the land. He additionally recommended that a Ministry of Land Redistribution be created, for the existing Department of Rural Development and Land Reform was assessed as rather ineffective.
He stressed that the government’s failure to follow these guidelines would ultimately highlight its lack of courage. He urged the government to organise a national referendum and ask the people of South Africa if they wanted to buy stolen land. He emphasised that South African people had more courage than the politicians who supposedly represented them.
He vividly asserted that the EFF would allocate its 6% share of the legislative power to the ANC in order to achieve the parliamentarian majority necessary to change the Constitution and apply the vital changes required by the present land situation.
The Chairperson thanked the SPPS associates for their animated submission.
Mr Masango blamed the SPPS associates for intervening in the discussion with a solely ideological input while the Committee was expecting interested individuals who would contribute to the enhancement of the Bill by addressing specific clauses.
He stated that if Mr Mpenyama and Mr Mngxitama did not agree with the Constitution, they belonged neither in this public hearing nor in the Parliament as a whole.
Mr N Matiase (EFF) interrupted Mr Masango and raised a point of order. He argued that the EFF had not provided the present Committee with any submission, and that Mr Masango was thus not allowed to judge free citizens in this manner.
The Chairperson asserted that tensions and ideological conflicts were inherent to the realm of politics. He nonetheless urged Members to shift their scope of focus back onto the matter presently at stake, that of the Expropriation Bill.
Mr Filtane assessed some of SPPS’ ideas as rather plausible, and yet constrained by their environment. He argued that section 25 of the Constitution had not been drafted for the purpose of redistributing the land, and enquired as to the origins of SPPS’s conception of the section’s purpose. Along with enquiries that had been raised in the past by other Members, on may wonder who had exactly stolen the South African land and from whom. He claimed that he was proudly African, and yet that the debate on the historical theft of land in South Africa was a legitimate one which deserved an appraisal, referring as an example the deprivation of the land of the Khoikhoi and San people.
Mr S Jafta (AIC) expressed his opinion on the SPPS submission, which he viewed as interesting and yet of no relevance to the matter presently at stake. He blamed both Mr Mpenyama and Mr Mngxitama for addressing matters of land redistribution and compromise although they were of a relatively young age.
Mr Mngxitama interrupted Mr Jafta and raised a point of order. He described the Member’s attack as extreme and explicitly undermining the intelligence of SPPS associates. He said he was an activist. He ironically asked if a specific date of birth was required to have a say on the state of society. He asked the Chairperson for his intervention in order to regulate such behaviour.
The Chairperson reiterated that the purpose of a public hearing was to converse about stakeholders’ perspectives while enriching the process of consultation underlying the present draft of the Bill. He assessed the issue of the presenter’s age as completely irrelevant to the process at stake, and argued that scholars for instance could provide the Committee with unmatched expertise regardless of their potentially young age. He invited Mr Jafta to carry on.
Mr Jafta argued that Members should strive to prevent the loss of morality from occurring in the course of the public hearing. He asked SPPS representatives according to which criteria did they identify the land as stolen, and who really was the owner of the land in South Africa. He asked them to justify their claim that the government was presently not addressing the matter of land expropriation in South Africa.
Mr Sithole expressed his confusion at the course that the conversation was currently following, for the purpose of this public hearing was initially to discuss the Expropriation Bill rather than to engage in an ideological debate. He enquired what was really meant by getting rid of section 25 of the Constitution, for this was presently assisting the public. He criticised the SPPS’ submission for failing to provide a concrete input to the Bill’s discussion.
Ms A Dreyer (DA) raised a point of order to remind the Committee that this public hearing relied on a specific programmes with strict timelines which could not afford to be exceeded. She appealed to all to stick to the present timeline and to avoid ideological debate. She unequivocally praised mutual respect for Members and presenters, which could only be achieved through a strict adherence to the meeting’s planning.
The Chairperson emphasised the importance of discussing the Bill, while he underscored the necessity to enable every social actor and stakeholder to have a say in the general discussion. He asserted that one could not discuss such a controversial matter and totally exclude ideological considerations. Members were however urged to follow the general guidelines underlying the discussion of the Bill.
Mr Matias thanked the Chairperson for elevating the level of the discussion. He asked the Department officials if they were presently focused on the land issue or on simple formalities, and whether they were considering this exercise as a sideshow or a proxy of the broader problem. He stated that the land question should have been addressed 21 years ago. The same government had remained in power ever since and had undertaken little transformation. He asked about the actual likelihood of witnessing concrete changes through this Bill, originated by the same government whose policy had thus far failed.
Deputy Minister Cronin conceded that this process was perhaps a side show, yet a crucial one. He reminded Members and stakeholders that the Expropriation Bill was not exclusively about land reform and sought to achieve a capacity of general application. The success and failures of land policies thus far could be explained by a certain reluctance of the government, while section 25 was actually not embedded in the land reform programme. Although the Bill would not manage to change the entire system and its inequalities, it would nonetheless contribute to improving the South African society. He suggested that even though ideological input was undeniably valuable, presenters should limit its extent and rather focus their submissions on the actual Bill. He acknowledged the phenomenon of dispossession in South Africa was not solely historical, but also continuous and ongoing.
The Chairperson thanked Deputy Minister Cronin for his contribution and invited SPPS associates to succinctly develop concluding remarks.
Mr Mngxitama argued that although the Expropriation Bill was supposedly open for public comment, the present process was extremely biased. He described the new piece of legislation as moving around the problem instead of addressing the core of the issue. He expressed his consternation that certain Members of the Committee were apparently not aware that the South African land had been stolen. He explicitly stated in this regard that the white settlers had taken the African land, his land. He claimed his Khoisan origins, and the pride he bore for being African. The African people had been the victims of a genocide, while he blamed them for their lack of courage and the Department’s disappointing attitude. He reiterated his proposition that the EFF would allocate its 6% share of the National Assembly in order to enable the ANC to amend the Constitution and delete section 25. The process of land expropriation thus far was a worrying waste of public funds, cruelly lacking any sense of urgency. It was time for black people to receive what they deserve and to finally complete the process of decolonisation.
Mr Dlamini argued that Mr Mngxitama did not have the legitimacy to suggest the allocation of certain Members’ vote on behalf of the EFF.
Mr Mngxitama responded that this offer had been made public. He asked Mr Dlamini if he was presently withdrawing this offer, and if so, why would he undertake this sudden withdrawal?
The Chairperson intervened in the increasingly conflictual discussion and urged Mr Dlamini not to engage in the political debate lurking before him. He told Mr Mngxitama that he had already made his contribution to this public hearing, and that his attitude was shifting the discussion away from its initial purpose and schedule.
Mr Mngxitama expressed his vivid disagreement with the Chairperson and more importantly Mr Dlamini’s attitude. He indicated that the SPPS would thus depart from this public hearing as a result of the lack of respect SPPS associates were suffering from.
Mr Mpenyama and Mr Mngxitama left the venue.
Institute for Poverty, Land and Agrarian Studies (PLAAS) submission
Prof Ruth Hall contextualised the relevance of this Bill by highlighting the necessity to bring expropriation laws and their compensation components into line with the Constitution, to remove the ‘veto power’ of landowners in relation to land reform, and to ensure consistency in expropriations undertaken by the different arms of government. While she thus pinpointed the need for a new Expropriation Act, she conceded that it would not solve all the problems faced by the current process of land reform.
She asserted that the absence of expropriation as a credible threat had impeded the land reform process, and in particular the resolution of land restitution claims, for land claims could not proceed where current owners refused to sell at prices offered by the state. She described this reality as effectively privileging the property rights of current owners over the property rights of the dispossessed.
She provided the Committee with a background appraisal of the current expropriation legislation, explaining that the Constitution set out criteria for ‘just and equitable’ compensation, having regard to all relevant circumstances, while the policy relied on a mathematical formula developed by Judge Antonie Gildenhuys of the Land Claims Court. Her critique of the present system focused on the fact that the formula discounted for past subsidies and other support received, yet did not address the other criteria cited in sections 25(3)(a) (b) and (e) of the Constitution. She referred to the latter criteria as not easily reducible to a value in a formula. While the Office of a Valuer General must address the absence of a nationwide comprehensive, reliable hub for the assessment of property values in the country, she indicated the need for greater clarity with regards to the conceptualisation of ‘just and equitable’ compensation.
Prof Hall criticised the existing lack of clear policy, guidelines and scenarios undermining the process thus far. There was an urgent need to operationalise the criteria in different types of circumstances, and to develop and publicise widely a comprehensive practical approach. She underscored that the more predictable the process ofexpropriation would be, the fewer court challenges would occur, thus pinpointing transparency and predictably as mutually beneficial for all actors involved in the process.
With regards to the broad enquiry on whether the new Expropriation Bill would fasten the process of land reform in South Africa, she referred to Michael Aliber’s critique from 2015. The latter argued that if expropriation reduced the expense of buying a hectare of land for land reform by 10%, a given budget would be able to acquire 11% more hectares while if effective price per hectare were reduced by 50%,then 100% more hectares could be purchased. In a more extreme case, if effective prices were cut by 80%, the ‘purchasing power’ of a given budget would increase by 500%.
While still relying on Michael Aliber’s critique, Prof Hall argued that the Department of Rural Development and Land Reform was facing a choice between applying just and equitablecompensation to pursue modest cost savings, in which case it would not accelerate land reform much, depending on the extra administrative burdens of both performing expropriations and dealing with court challenges; or seeking more substantial cost savings, which would be likely to prompt a relatively small number of conspicuous court cases, which, once again, would barely accelerate the delivery of land reform.
In restitution, current owners of claimed farms had a qualified monopoly over this land, which resulted in the negotiations being skewed in favour of the owner, who can hold the deal to ransom, ultimately resulting in the state’s recurrent trend of overspending in purchasing the land. A clear rationale for expropriation was thus necessary to break deadlocks over price and to present a credible threat to landowners who attempt to veto a land claim.
She told Members that from 2006 to 2008, redistribution land was acquired at the same price per hectare as market average, whereas restitution prices were almost three times greater, in part because land under a restitution claim was more likely to be actively used. She deduced from this situation that expropriation was needed in restitution, as part of a wider strategy of redistribution.
Prof Hall concluded from Michael Aliber’s critique that there were only two possible ways to significantly accelerate land reform, namely the seizing or expropriation of white-owned land with little or no compensation, which was presently unlikely, or to significantly increase the government’s budget for land reform, whose current share of the total budget was only 0.4%.
She concluded by arguing that the Expropriation Bill was for the most part constitutionally aligned, although it did not provide for a landowner to go to court to challenge the validity of an expropriation, but only to determine the amount of compensation.
Prof Hall lastly urged the Committee and Department to address the Bill’s impact on communal land, where people have informal rights to land that sometimes has minerals underneath it, who are at risk of being deprived of rights tocompensation.She recommended in this regard a tight appraisal of the upcoming submission by the Legal Resource Centre (LRC).
The Chairperson thanked Prof Hall for her substantial input and invited Members of the Committee to engage in a critical appraisal of the PLAAS submission.
Mr Matiase asserted that a great majority of the South African land was still privately owned, in manners that entrenched racism and perpetuated racist stereotypes, while consolidating regimes of private white capital . He described land dispossession as a historical crime, which was far from being sufficiently addressed by the Expropriation Bill.
He urged Members and governmental representatives to learn from the past land reform programmes, and particularly from their unarguable failure. He suggested that the Department should learn from successful experiences of land redistribution, in other countries for instance.
Mr Dlamini pointed out the relatively technical nature of the submission. He described matters associated with land as highly sensitive, as well as radicalised as a direct result of previous regimes’ political agenda of dispossession.
Mrs Dreyer referred to the PLAAS claim that the greater the predictability of land expropriation would be, the fewer court cases would be required to arbitrate disputes. She expressed her full agreement with this statement, yet asked which mechanisms ought to be taken to be relied upon in the enhancement of expropriation’s predictability.
She addressed PLAAS’ criticism of the fact that court resort would only be able to challenge the amount of compensation and not the very validity of the expropriation claim, and asked if this narrowness of the judiciary resort was aligned with the Constitution.
Mr Filtane expressed his enjoyment of the submission. He asked Prof Hall what indicator ought to be defined as the benchmark for compensation evaluation, suggesting on the one hand the market value and on the other hand the sum of historical features of the land asset.
Prof Hall addressed Mr Matiase’s enquiry and explained to Members that land reform initiatives had been particularly successful in Taiwan, in South Korea and certain states of India where landlords had been progressively dispossessed. She however argued the South African situation sharply differed from these Asian cases, particularly with regards to labour tenants, notably in Mpumalanga and Kwazulu-Natal. She argued that the Department of Rural Development and Land Reform was not empowered enough to convey the expected changes.
She indicated that expropriation was not the only manner to redress inequalities of the past and that policy makers should ensure the protection of people who occupy land not for profit but for livelihood. She referred in this instance to the case of Brazil where individuals occupying land that does not belong to them were granted total rights of occupation after a period of five years of settlement.
She addressed Mr Dlamini’s remarks and stated that the Bill was indeed riddled with technicalities which were nonetheless necessary to enhance the government’s effectiveness. The Bill was not solely focusing on the process of land reforms, and could therefore not differentiate between the race of the individual involved in the expropriation. With regards to the notion of predictability, she underscored the need for an appropriate policy outline. She expressed her disagreement with the EFF’s stance as she advocated the importance of identifying differences between farms that have been in place for the past three centuries and those that were bought recently. Prof Hall emphasised that the rights of poor people and the rights of rich people could not be the same in terms of defining the clauses of compensation. She concluded her response by underlying the importance of a firm political direction to guide the Expropriation Bill.
Ms Dreyer noted that Prof Hall had expressed her conviction that the validity of the expropriation process should be challengeable in court. She asked Deputy Minister Cronin if he agreed with such a necessity.
Mr Dlamini argued that the expropriation process should not be selective, and not distinguish between races but rather rely on the consideration that everything that occurred prior to 1994 was illegal. He conceded that neither he nor his colleagues were historians.
Deputy Minister Cronin praised Doctor Hall’s input for its capacity of clarification. He asserted that the Expropriation Bill would not save the entire land reform process but could be useful to address certain deadlocks. He described the present situation as characterised by wealthy landowner’s upper hand on the system, as a result of the lack of threat.
With regards to the possibility of challenging the validity of an expropriation claim, he argued that such an initiative was allowed by section 33 of the Bill of Rights. He said that although it was not directly formulated in the Bill, he held the belief that such a right was implicitly embodied in the new legislation. He added that, if the absence of the right as explicitly formulated in the Bill was to be found unconstitutional, the Department would adjoin this to the existing clauses.
On the matter of compensation evaluation, Deputy Minister Cronin described with little consideration for Antonie Gildenhuys’ formula, the necessity to develop additional indicators than the market value. He argued in this instance that concrete examples would be of great relevance to the assessment of compensation, for in certain cases the value of the compensation could be much higher or much lower than the actual market value of a given land asset.
Legal Resource Center (LRC) submission
Mr Henk Smith, attorney at LRC, began his submission by saying the LRC delegation had learnt greatly from its presence at the public hearing in the previous week, while its attendance at the present meeting had been thus far similarly enlightening. He referred to section 25 of the Constitution and explained that it had already received five pieces of legislation dealing with it, while the Expropriation Bill would be the sixth one. He described the low standards of mineral legislation before to argue that it was not just expropriation but also, and perhaps more importantly, the clumsy bureaucratic negotiation which tended to hinder and delay the land reform process.
He described the South African history as characterised by phenomena of ‘cataclysmic genocidal dispossession’, exemplified by the forced displacement of 640 000 families between the 1950s and the 1960s. He reminded Members of the importance of ensuring the rights of women and children along the crafting of the Expropriation Bill, and thus seeking to minimise the disruption of communities. He praised the importance of demonstrating the need for expropriation in each case, in order to legitimate the process at the unit level. He nonetheless highlighted the need to enhance the mechanism in place, for expropriation processes can take up to six and a half years.
With regards to the Bill’s specification that the expropriating authority must ascertain the existence of registered and unregistered rights in such property and the impact of such rights on the intended use of the property, Mr Smith specified the importance of adding to this clause the provision that where land is held by a community or a community is the holder of an unregistered right in land, an expropriation authority must ascertain if provision has been made for reparation and compensation for relocation of households and the dislocation of the community and its institutions, including alternative land, alternative livelihoods and support to re-establish the community and its institutions.
He briefly mentioned the Lesotho Highlands Water Project (LHWP) as well as the human rights violations which occurred along the project’s development, highlighting the total lack of compensation for hundreds of displaced households. Relying on the latter as an example, he emphasised the need to accurately define the terms of compensation of a given expropriation. He suggested that compensation meant in the case of a community, reparation and comparable redress which may include the provision of suitable alternative land and amenities to re-establish livelihoods and community, and, where appropriate, arrangements for community benefit sharing in any development on the expropriated land.
He urged the Department of Public Works to adopt a definition of compensation that would be common to all departments, in order to enhance cross-departmental cohesion, which had rather coerced the processes of expropriation thus far.
In certain cases of restitution, where the matters were actually before the Land Claims Court, and not dealt with administratively by the Commission, the investigations under chapters 3 and 4 have already been dealt with by the court itself. As a result, Mr Smith suggested the amendment of section 42(e) of the Restitution Act in the Bill, in order to replace the 1975 formulation by the following: ‘provided that the court, such as the Land Claims Court, when making an order under section 35 of this Act, may direct that the provisions of chapters 3 and 4 of the Expropriation Act shall not apply to the relevant expropriation under this Act. He thus suggested that the exclusion of chapter 3 and 4, whose content was already incorporated in the Bill, would minimise excessive efforts and frustration, which regularly occur along the expropriation process.
He described additional challenges, such as the MalaMala disaster, which had set a terrible precedent for the expropriation jurisdiction, the consideration of Planning Tribunals under the Spatial Planning and Land Use Management Act (SPLUMA), provincial statues and municipal bylaws for third party fact / price finding, and the bind, resulting notably from the opposition, between demoralisation costs and settlement costs.
Mr Smith proposed, on behalf of the LRC, the establishment of a discount threshold of 20% in cases where the land had been historically acquired as a result of abuses, as well as an additional threshold of 20% which ought to be implemented only if the purpose of the expropriation was land reform. He suggested that amendments to the Bill’s appraisal of compensation could be implemented in two years' time.
He stated that the expropriation process should also incorporate provincial legislatures, while it ought to develop adequate guidelines to the negotiation processes, in order to enhance chances of reaching compromises between the expropriating authority and the landowner.
Mr Smith further stressed that what was really required was a mining law reform and an aggressive land reform implementation, in order to promote integrated rural development planning and implementation and address, by ways of reparation and participation measures, the dislocation of rural economies and communities as a result of discriminatory land and mining law over a period of a century and longer.
He concluded LRC’s submission by arguing what was required of expropriation law was to ensure that, in the case of new mining and infrastructure development, affected communities and in particular displaced communities on communal land were equitably compensated in kind and financial terms. Equitable redress may include alternative land and accommodation, productive land, institutional support, community participation and benefit sharing.
The Chairperson thanked Mr Smith for his juridical and critical appraisal of the Expropriation Bill.
Mr Dlamini asserted that most presenters who had intervene in the course of this public hearing were white. He ironically asked if they represented the reality of the land issue in South Africa. On a similar tone, he asked if this 85% white resubmission of stakeholder presenters implied that black people were not involved in the matter presently at stake.
Mr Sithole asked the extent to which the LRC was actually really praising an aggressive land reform in alignment with an in-depth transformation of the mining sector.
Ms Masehela asked for greater clarity on LRC's final statement which notably emphasised the notion of equitable redress and displaced communities. She deplored that communal land was often underestimated by policy makers.
Mr Filtane similarly referred to phenomenon of communities being affected by expropriation processes. He asked Mr Smith if the LRC was praising a system of dual support from the state, which would on the one hand compensate individuals to the amount of the expropriated land asset, and on the other hand relocate the individuals. He asked if such was the case, what impact this support would bear on the Department’s budget.
Ms D Mathebe (ANC) indicated that she had a certain background of royalty, and asked who would determine the value of the land. The Department was thus far failing to accurately approach and define the evaluation framework. She asked how Mr Smith and other lawyers of similar backgrounds could claim cognition in the reality of South African communities and the meaning of communal land.
Mr Smith expressed his concern towards Mr Dlamini’s remarks, stating that presenters who came before the Committee were only selected internally in each of their agencies, with no consideration for racial features. He conceded that it was the white man who had undeniably brought what can be described as Africa’s major contemporary problems. He referred to a North West hearing on social and labour plans, which had highlighted the way mining companies do not respect their workers’ rights. Although he acknowledged the gravity of the situation, he told Mr Sithole that the mining issue could not be solved that easily, and not solely with the Expropriation Bill. He described the Social and Labour Plan (SLP) as a masquerade, with a rate of 26% of Broad Based Black Economic Empowerment (BBBEE) compliance, pinpointed as another parody. He urged the SLP to meet its obligations, for what was presently happening in North West would shortly occur in Limpopo.
He indicated that another LRC representative would come forward to further provide Members with comprehensive responses to their concerns.
Ms Wilmien Wicomb, attorney at LRC, addressed the matter of invisible rights as part of the potential expansion of compensation. She explained that the South African common law property regime, which underscored the need for transformation, considered rights that were not observable as not sufficiently entrenched. She described this legislative stance as a serious underestimation of social, cultural and traditional values attached by many communities to their land. While the Constitution set the premises for increasingly great transformation in the country, a greater appraisal of customary law and associated rights was necessary. She emphasised the importance of ensuring that communities which experienced displacement through the Expropriation Bill would be able to recover a normal life after this traumatic experience. Similarly to her colleague, she urged Members and the Department to learn from the Lesotho Highlands Water Project (LHWP) case in order to avoid the repetition of such human rights violations. She argued that cash payments were not necessarily the key, for compensation ought to be underlined by mechanisms ensuring that displaced people will recover from their experience and live better lives.
Mr Filtane stated that Members were bombarded with comments on the importance of market value, as well as of social value. He referred to the recent example of removal of poor people to even more isolated locations in the Cape Town municipality. In this general context, he expressed his appreciation for the LRC input and of its alternative view.
Mr Dlamini told Mr Smith that he had failed to respond to his question. He argued that the issue of land was always reduced to micro-scale considerations. Although he was generally supportive of the Constitution, he was allowing himself to criticise it when deemed necessary.
Deputy Minister Cronin expressed his gratitude towards the LRC and thanked its representatives for their substantial input. He underlined their sharp understanding of the Bill’s procedural notions. He praised the emphasis placed by LRC on the invisible factor, and conceded that the Department should perhaps look into more adapted compensation and definitions of community.
The Chairperson allowed Mr Smith concluding remarks.
Mr Smith asserted that market value was often irrelevant, while reminding Members that the Group Areas Act had given land for free to many people. He praised the participation of various stakeholders to the discussion, as well as the involvement of communities in order to identify the most just process to assess land value. He similarly encouraged the involvement of many other departments, including the Department of Water and Sanitation. He described the Expropriation Bill as unprecedentedly enlightening in this field of legislation.
The Chairperson thanked Mr Smith for his contribution, and congratulated his ability to develop a succinct conclusion, while referring to the sentence they served together in Robben Island several decades ago.
Congress of Traditional Leaders of South Africa (CONTRALESA) submission
Prince Manene Tabane, CONTRALESA chairperson, argued that the party which was presently in power had remained in office for the past two decades, and had not substantially addressed the land issue thus far. He asked Members if an extensive justification was really required in order to take the land back in South Africa. In the light of the country’s history, such a slow process of land redistribution was severely inadequate, and failed to address the substantial inequality and marginalisation of rural communities.
Prince Tabane noted that section 25 of the Constitution explicitly emphasised the need for consultation with municipalities and traditional leaders. He described the latter as the true custodians of the land, responsible for its maintenance and for social cohesion on the ground. He thus urged Members to empower the Bill to protect rural and traditional communities from being expropriated.
He concluded by reiterating the importance of traditional leaders in South Africa, while underscoring the symbolic and social value of land in the greater scheme of societal organisation, thus urging the Department and Committee to prevent the Bill from expropriating communal land.
Mr Filtane expressed his appreciation of the submission’s emphasis on the core role of traditional leaders, notably with regards to the social fabric of stability and the extent of reliance they bore in rural areas.
Mr Dlamini criticised CONTRALESA for praising indigenous pride while endorsing a Bill that explicitly states that it ought to pay the people who robbed traditional communities. He asked if CONTRALESA's communities would agree with such a stance.
Mr Sithole referred to the NHTL submission which advocated the exclusion of municipalities and other state organs from the process of expropriation. He asked for Prince Tabane’s stance on the matter.
Ms Masehela expressed her satisfaction with regards to CONTRALESA’s acknowledgment that traditional leaders do not own communal land, but actually guard it.
Prince Tabane began his response by arguing that money would come and go through time, while the land would always remain. He described the land as the legacy of communities’ fathers and ancestors. In a broader sense, he described education as key to addressing the inequalities of the past, and empowering the different communities throughout South Africa. He anew referred to section 25 of the Constitution which allocates traditional chiefs as custodians of the land, while these leaders did not speak on behalf of their personal interest, but represented the viewpoint of the local councils.
The Chairperson thanked CONTRALESA for its submission and praised its ability to follow guidelines of conciseness.
Bathlakoane Ba Manzimnyama submission
Mr Joe Mokoena, Representative of Bathlakoane Ba Manzimnyama clan, indicated that the name Bathlakoane Ba Manzimnyama is a clan that lost its land and livestock in the Emalahleni area (Mpumalanga). This happened through systemic reduction of our grandfather’s land until the clan was pushed out the land completely. The position of Bathlakoane Ba Manzimnyama clan has always been that the budget for the restitution of land rights and expropriation of property will never be enough as the loss of land and property by the dispossessed communities took place over three centuries ago and the extent of the loss was massive and no budget could ever restore the loss. The Expropriation Bill seeks to address this loss at the most possible and cost effective way and Bathlakoane Ba Manzimnyama clan support the use of expropriation as a legal method to assist the land reform process. The Bill should be given very extensive powers to expropriate land and property from private landowners, at public interest and the proposal is that when expropriation takes place, compensation must be categorised as follows, depending on the nature of dispossession: fair market, nominal value, or without compensation.
The acquisition of land in the fair market value has been covered over time and validated by title deeds and the most popular manner of acquisition was forced removals. The other form of acquiring the land was the systematic reduction of grazing land and the limitation of stock growth and this was what had happened to Bathlakoane Ba Manzimnyama clan and was still happening in 2015. In a recent newspaper article, a mining giant told Mr Sprinkaan Masango that he had too many cows and had to restrict his cows to 14 and 10 goats and the rest would be impounded. The fair market value principle might be problematic as it could be difficult to prove the manner of acquisition; landownership has been passed from generation to generation. It is important to remind Members that in order to solve the problem of “poor whites”, masses of white residents in the early 1920s were employed in the Post Office, railways, and steel industry and received free housing and subsidised services.
It became clear just before 1994 that most of the houses were sold to the beneficiaries at nominal values. With the influx of township residents to suburbs, these houses were often sold at values higher than their actual values. There are individuals and non-governmental organisations (NGOs) that had supported different causes before 1994 who acquired land for those causes, but now the land was now used for recreation and resorts and there is a profit that is derived from these activities and this is undue benefit. The land and property must go back to the hands of the state and new applications must be made open to all members of the public or interested and affected parties. In this cases, the nominal value should be applied to these properties and only compensation be paid for improvements that had been made to the land/property.
There are landowners who deliberately neglect their land for various malicious ends and these included cases where land is neglected by landowners (farmers) to induce land invasion, so that the informal settlement grows and government will be compelled to purchase the land. There are instances where mining companies neglect the land because it is no longer minable or profitable and in these cases, the state must expropriate the land without compensation. In conclusion, the White Economic Empowerment that took place over three centuries is seldom spoken about and the Bathlakoane Ba Manzimnyama clan believes that the land reform process and expropriation will pave a way for the true economic emancipation of the previously dispossessed masses.
Mr K Sithole (IFP) asked if there was any instrument to prove if the land was a fair market value if the owner of the land/property was entitled to that particular land.
Mr M Filtane (UDM) asked if there was any suggestion on the guidelines that could be used by the Committee or government to determine the categorization of the compensation from nominal value, fair market value and expropriation of land without compensation.
Mr S Masango (DA) also warned about the values that are attached to land/property as it was even difficult to come up with calculations to determine if a particular land is nominal or fair market value. The suggestion that there should be cases where land was expropriated without compensation was against the Constitution as it explicitly stated that there should be compensation whenever the land/property was expropriated.
Ms E Masehela (ANC) asked if there was any strategy in place to ensure that government expropriates as much land as possible as the submission had noted that the budget for the restitution of land rights and expropriation of property would never be enough. How was it possible to deal with the fact that those it was claimed had stolen the land now had title deeds?
Mr Mokoena admitted that laypeople often use the terms nominal and fair market values loosely as the formula that was used to determine the value of the land was more complex and complicated. The Bathlakoane Ba Manzimnyama clan was in full support of the Bill as it seeks to redress the imbalances of the past. The focus of the clan was on the land dispossession from historically disadvantaged individuals (HDIs) from pre-1994 and there is a need again to be careful against using terms loosely. The clan had decided to temporarily withdraw the statement for the expropriation of land without compensation so as to wait for the annual review of the Constitution so as to make additional inputs. This did not mean that the clan was not supporting the call for the expropriation of land without compensation but it needed to be done in line with the Constitution. The budget for land restitution was clearly very little to deal with the inflated prices of land/property and this again could be solved by expropriating the land without compensation.
Deputy Minister Cronin appreciated the submission that had been made by the Bathlakoane Ba Manzimnyama clan especially the consideration of the legalistic matters that still needed further consideration. He advised against waiting for the annual review of the Constitution in order to push for the expropriation of land/property without compensation. The Constitution was very clear that in the case of expropriation, there should be compensation but it does not specify the value of compensation as it just states that compensation should be just, fair and equitable according to the circumstances. Therefore, in the case of ancestral land it will be important to make use of the opportunity of this parliamentary public hearing so as to get the opinion from experts in the room.
Mthatha Ratepayers and Residents Association submission
Mr Mzwandile Majova, Chairperson of Mthatha Ratepayers and Residents Association, commended the experts that had drafted the Expropriation Bill. The Bill needs to be led with the spirit of the Constitution and the Promotion of Administrative Justice Act and that the expropriation of land should be done in a manner that will redress the imbalances of the past especially to the disadvantaged communities. The Association believes that the willing buyer, willing seller approach should be repealed as it oppresses the very previously marginalised and disadvantaged communities. The government needs to set up criteria to expropriate the property or land and compensate in an adequate manner that will redress the imbalances of the past and gives enough benefits to all the people in South Africa in the era of democracy. The words “expropriation”, “expropriating authority”, “expropriation register” and “compensation” need to be clearly defined in the Bill as these are four pillars of the Bill and therefore they should be defined for proper understanding and compliance. The powers of the Minister to expropriate the land/property should be clearly explained and the rights of the property owner or holders had not been specifically explained.
The Association believes that the rights and duties of the property owner or holders should be specifically explained in conjunction with the powers and duties of the Minister in order to expropriate the property. The powers to expropriate should be vested in the Office of the President or the premier of each province for easy control, transparency and easy control and accountability. The property or land in rural areas can be expropriated and therefore a different degree of experts should be included for an effective investigation and gathering the information, particularly legal experts, traditional leaders, social workers and surveyors. The work of various experts as a team may reduce the unnecessary litigation in the expropriation process. The word “may” in clause 52(2)(a) of the Bill should be replaced by “must” as this word was insisting on something that someone was obliged to do.
Mr Majova stated that the Bill only provides for consultation with municipalities during investigation with no mention of the local communities and traditional leaders who may also be affected by investigation and the gathering of information for the purposes of expropriation. The Bill should also provide for broader consultation with the traditional leaders including all the relevant stakeholders during the investigation. The Bill has failed to explain the rights and duties of the owner or holder of the property before serving notice of the intention to expropriate and the rights and obligations of the owner or holder of the property or land should be fully explained before serving the notices completed in clauses 7 and 8 of the Bill. The Association strongly believes that the manner purpose and period of the acquirement of land should be added as relevant circumstances to determine compensation. The compensation claims should be determined with strict considerations of the equality clause and this could be done in a manner that redresses the imbalances of the past and racial discrimination.
The matters in ordinary courts often delay in a manner that sometimes denies justice and therefore the Bill should provide for special courts and specific timeframes to expedite the expropriation proceedings so that the object of expropriation is not defeated. It was also disappointing to observe that the Bill had only been drafted in English and this was creating a language barrier to those who did not understand English. The suggested solution is to ensure that the Bill is translated into all official languages and the public hearings on the Bill should be conducted in every province, region, local areas and rural areas. The language of the addressee per area should be established so that everyone was able to be addressed in a language that is spoken in that area. The issue of language barrier might lead to a situation where people are committing offences because of pure ignorance of the content of the Bill. The period for consultation and public hearings should be extended in order to accommodate people who may be left out. In conclusion, the Association believes that the Committee should have spread the public hearing to other provinces instead of centralising it in Cape Town and the consultation on the Bill should be extended to allow further inputs.
The Chairperson appreciated the submission made by the Association and emphasised that the Committee was also deeply concerned about the grievances of the communities across the country. The Department of Public Works (DPW) did in fact visit all the provinces and stakeholders in 2008 although this was not enough to reach out to all the provinces. The Committee was committed to sponsoring community members to come to Parliament in order to participate in public hearings on the Bill and it was in this spirit that the Committee was able to get all the organisations, groups and associations that had made submissions today.
Ms A Dreyer (DA) asked if the Association was proposing that the Constitution needed to be amended by suggesting that the willing buyer, willing seller should be repealed. She pointed that the repealing of the willing buyer, willing seller could also affect previously disadvantaged individuals who were already struggling to pay their rates on property and this could potentially have disastrous consequences as a house was a huge asset for any individual.
Mr Masango wanted more explanation on the statement in the submission that “in terms of section 32 of the Constitution, the advantaged and disadvantaged of the Expropriation Act 2015 to have retrospective impact from 1994”.
Mr Filtane congratulated the Association for the fact that they were able to take the Bill from clause to clause and this made it quite simple for the Committee to deal with the inputs that had been made. The Association had suggested that the communities needed to be consulted on the content of the Bill but it was not explained how this process could be achieved. He asked if the suggestion of the need to use all official languages of South Africa in the Bill was suggesting that there had not been enough consultation about the content of the Bill on communities especially those located in rural areas.
There is a need to explain how the terms “just” and “equitable” were ambiguous and how these terms could be defined to be in line with the Constitution. How was it possible to ensure that the public interest was to be determined jointly with the communities? It was impressive to hear that the Association was suggesting that “the rights of the owners who are about to be expropriated should be explained” as this was an important point although it was unclear on how this could be achieved.
Mr Majova responded that the willing buyer, willing seller was not working and this was not to suggest the need to violate the Constitution but it needed to be reviewed. It was difficult to determine the actual value of the property or land in the willing buyer, willing seller policy and expropriation with market conditions often leads to failure. The expropriation of land should be done in the language in which the owner would understand and this was to ensure that the process was done in an amicable manner where there was a common understanding. The democracy of South Africa is centred on public participation and the use of all eleven official languages in the Bill was essentially part of achieving that objective of inclusivity. It was very difficult to determine whether a process was “just” and “equitable” and it will be important for the legal experts to come up with a definition of these terms.
Mr Majova highlighted that it was important to avoid the situation where a group of cronies wanted to expropriate land/property for their own purposes and there was development of a mall in Mthatha that was halted after it was discovered that the beneficiaries of that particular development would be councillors. The Association strongly believed that there should be some explanation to the owner prior the expropriation of the land/property. The expropriation of land was a thorny issue and therefore the owner was entitled to be told of the possible recourse that could be available for those who needed more explanation on the Bill. The Association was particularly concerned about the possible ramifications if the previous Expropriation Act was repealed wholly while there were still cases to be litigated.
Deputy Minister Cronin corrected that there was no willing buyer, willing seller process in the Constitution but it says no one could be deprived of property except in terms of a law of general application and no law may permit arbitrary deprivation. The DPW was not reversing the willing buyer, willing seller process as there was no such thing in the Constitution. The Department allows the period where there is a negotiation for willing buyer, willing seller as this was a quicker process than land expropriation. He assured the Committee that the Department will peruse the points that had been made by the Association especially on specific clauses that still required clarity mainly consultation and the use of all eleven official languages. It was always difficult to make legislation retrospective and the Expropriation Bill was happening because of the amendments to the previous Acts and the courts would look at the property clause in order to determine whether the Bill was constitutionally compliant.
Mr Piet le Roux, Spokesperson of Solidarity, indicated that Solidarity is a trade union with more than 140 000 members in industries across the economy and also part of the Solidarity movement and associations that grew from Solidarity and the focus is on the workplace and the needs of its members. Solidarity had made inputs on the draft Bill especially on the issue of property rights. Solidarity had recently compiled a report on 14 important pieces of legislation and policies with a bearing on property rights. The expropriation of land/property essentially implied taking someone else’s belongings and the discussions today should not be focused on whether or not the state should expropriate, but rather when and how the state can expropriate..
The Solidarity was interested in an Expropriation Act that was constitutional, well-defined, rational and fair and socially beneficial piece of legislation. The Expropriation Bill was clearly not constitutional, well-defined, not rational and socially beneficial and therefore it was undesirable and it should be rejected or reworked. Deputy Minister Cronin had indicated that the Expropriation Bill was not about expropriation without compensation but it will be important to know how far the person with the idea of expropriation without compensation would go in this Bill to achieve their end. The Bill actually allows them to go very far although there would be no instances where the land would be expropriated without compensation but there will be situations where the owner is paid very little in the process of expropriation. The Bill makes for arbitrary exercise of power in that it does not require, at proper junctions, reasons expressed in writing to victims of expropriation, which could be tested in courts for subjectivity.
Mr Le Roux highlighted that the Bill is also administratively unjust as in some cases the property or land is able to be passed to the state even before the validity of the suggested expropriation had been established and the expropriation is done not necessarily only after compensation has been paid. The compensation of the land/property is institutional as the Constitution makes it very clear that market value should not be the only factor determining the amount to be paid for expropriation as other loss needed to be taken into consideration. The history of ownership should be clearly defined in the Bill before the commencement of expropriation as the failure to do so will make arbitrary exercise of power. The Bill also limits the courts on the amount to be compensated and not the validity of the expropriation and it is problematic that the courts could be restricted in this sense. The issue at hand should be on what form the piece of legislation should take in order to facilitate the rule of law and not rule of men.
The grounds for expropriation should be limited to those expressly allowed in the Constitution; the victims of intended expropriation should be given reasons before the expropriation so as to be investigated if they are arbitrary and payment should be made before expropriation and full payment before expropriation and the cost of legal proceedings must be relieved in some way. The compensation should be expended in order to take in consideration of the history that will impact the compensation. The courts should not be denied an opportunity to adjudicate on the validity and rationality of the expropriation and the victims of expropriation should have full access to the courts of law for adjudication. The Bill should be rejected by people of South Africa as it will have a negative impact on the economy and allow the abuse of state resources and the cronies will have their way with the resources. There must be a new Expropriation Act that will be constitutionally compliant and people should be able to keep what is justly theirs and people should be compensated for what the state actually needs.
Mr Sithole indicated that he was very disturbed by the Solidarity submission as it reminded him of the dark days of apartheid where an individual was interested in protecting the interests of the minorities. The submission also failed to highlight any content of the Bill but constantly referred to the SAIRR proposed draft bill. He requested clarity on the statement that “the expropriation is unduly remitting the likely compensation to be paid out to the victims of expropriation” as the Bill was talking about compensation.
Ms Dreyer said that there had always been an Expropriation Act and now the current Bill was trying to bring the Bill in line with the Constitution, and this was a complex issue that needed to be addressed. The Constitutional Court had already ruled on whether expropriation can occur before the compensation has been paid and this was particularly problematic and there should be a way that this was included in the Bill. She wanted to hear Solidarity comment on the transformative role of the Constitution where it explicitly makes provision for transformation of ownership and land. It would be helpful to highlight it in the Bill that the state will be responsible for the cost of litigation so that the burden was not on the property owner.
Ms Masehela said that this was a very disappointing submission considering that after 21 years of democracy, there are still people who were against transformation. The presenter had initially indicated that Solidarity was for the interests of the workers but there was no mention of the interests of the workers throughout the submission. How would the Bill weaken property rights? The Bill was not stopping anyone from going to court if dissatisfied with the process of expropriation.
Ms D Mathebe (ANC) stated that the submission was particularly disappointing as it failed to mention any content of the Bill but rather focused on the SAIRR alternative bill which was totally irrelevant to the Bill. She wanted clarity on the statement that the Bill must facilitate the rule of law and not rule of men. Where was justice restricted in the Bill?
The Chairperson mentioned that the presenters were within their rights to make reference to the submissions of previous presenters.
Mr Filtane appreciated that in the “new South Africa”, people were able to talk openly about thorny issues even though people differed in their opinions. Contrary to what used to happen in the past and this puts the country in a strong position to be able to look at the interests of everyone including the minorities. When the presenter said that the Bill will compromise the access to property, he was actually saying the opposite as the definition of public interest was exactly about that. The status quo in South Africa was very clear - and the Bill was trying to redress the imbalances and past dispossession especially in the public interest. The land that was attained in the past was unconstitutional as it was only a few people who had access to land/property and the Bill was, in many ways constitutional. Although the Bill itself did not mention anything about approaching the courts, it was a constitutional right of any South African to approach the courts if unhappy with a particular issue.
Deputy Minister Cronin welcomed that the Solidarity had presented its case and the Department had taken very seriously the submission by the SAIRR and the fact that the Department disagreed with it did not imply that the submission was not taken seriously. It is correct that the Department had added a phrase to the definition of 'public interest' to include “and other related reforms in order to redress the results of past racial discriminatory laws or practices”. This again proves that the Bill was in line to what the Constitution compels the government to do in order to be transformational and address the imbalances of the past. He requested Members look at clause 7(2)(c) and (d) of the Bill as there is a compulsion in the Act that any expropriating authority must make a serious investigation before undertaking the process of expropriation.
The notice of intention to expropriate the land/property is extremely explicit and the reasons for the expropriation of that particular property. It was not only the market value that was taken into account in the compensation process as compensation also took into account of other matters like livelihood or possible business that was operated so that the community could remain sustainable. It was impossible to equally compensate the land that was idle with that where there was sustainable livelihood to be taken into consideration. The Department was mindful of the matter of taking the issue to court especially if the owner was dissatisfied with the expropriation process and this was one of the reasons the Department was proposing the need for an automatic referral of a dispute around compensation and the preference was mainly on arbitration.
Deputy Minister Cronin added that there is a distinction between ownership and taking possession and the Department was agreeing that there should be compensation on taking ownership rather than on possession. The Department stated that there should be at least 80% of the compensation when the expropriation had taken place although there are situations when expropriation happens to property or land where there are unpaid bills like electricity or water. It should be taken into consideration that property is a social construct meaning it is man-made and therefore it could not be sanctified and there should be guidelines for expropriation and the Minister of Public Works was also in agreement with this view.
Mr Le Roux responded that the courts should not only speak on the compensation but also the validity of expropriation. The idea is that legislation is drafted so that it is not the whims of those who implement it who determine the outcomes but the intention of the drafters. By passing this Bill; the Committee would be giving arbitrary discretion to those who implement the Bill and this could affect both the small and large property owners. There are many good reasons for the state to expropriate land/property but this should be done in line with the Constitution. He concluded that the Bill should be closely defined and clear and he particularly supported the 80% compensation to be given to the owners at the time of expropriation although this seemed a bit low.
The Chairperson thanked everyone who was present and highlighted that there were many inputs from different groups, associations and trade unions and it will be important to incorporate the points that had been raised in the deliberations on the Bill.
The meeting was adjourned.
- Sankara Policy and Political School (SPPS)
- Institute for Poverty, Land and Agrarian Studies (PLAAS) submission
- National House of Traditional Leaders (NHTL) submission
- South Africa Institute of Race Relations (SAIRR) response
- Sankara Policy and Political School submission
- Legal Resources Centre (LRC) submission
- Solidarity Trade Union submission
- Mthatha Ratepayers Association submission
- Bathlakoane Ba Manzimnyama submission
- We don't have attendance info for this committee meeting
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.