The Deputy Minister of Public Works presented the latest version of the Expropriation Bill, with some amendments that had been proposed by the Committee or other commentators at earlier sessions. Members firstly wanted to clarify whether this Bill was not preventing other spheres of government from exercising expropriation powers, and the Deputy Minister clarified that any such processes would have to be in line with legislation and following the precepts of Chapter 3 of the Bill. That chapter deals with the investigation facts; and set out how the expropriating authority investigated the feasibility and desirability of proceeding with the expropriation. New wording was proposed for clause 5(7). Members discussed the burden of proof on the demand and decided that it should remain as “after delivery”. Clause 6(2) had also been changed to reflect the principle that cooperative governance should apply, that municipalities were responsible for the Integrated Development Plans, yet should be encouraged to give answers within a reasonable time. On Members' suggestions, the wording would be altered to reflect municipal rather than town planning, and to avoid over-detailing services. A suggestion that the clause should look not only to immediate suitability of purpose, but also the longer term impact would be flagged for future discussion. Under clause 7, it was clarified that both the notice of intention to expropriate and the cancellation must be gazetted. A reference to “within a reasonable time” had been added in. Clause 8 had been amended because the Department of Public Works (the Department) felt that the expropriation authority may not always be aware of who had rights. They questioned how this would impact on land claims processes and the Deputy Minister said that this would definitely need to be looked into. The delivery period was 30 days. In relation to offers of compensation there was an amendment to clauses 15(3) and 21, and the grammar had been corrected in clause 17.
Members held substantial discussion on the principles of mediation and determination by the court. The Department suggested that if the mediation process did not work, then the expropriating authority should be obliged to proactively start a court action to determine the compensation. A costs order, however, would determine the final payment of costs. Members were concerned that the clause dealt with the compensation aspects only and not with the question of whether the expropriation was, in the first instance, justified in terms of public interest or public purpose, and wanted some reference to the reason for expropriation to be added into this clause. The Deputy Minister said that there was no intention to imply that mediation should be excluded at any stage but thought that the additions to the preamble and a direct reference to administrative justice covered the point. Members discussed the links between this clause and section 25 of the Constitution. They made the point that the nature of mediation was to try to find common ground on how expropriation would take place, what part of the property gets expropriated and other issues – and this went beyond the narrower aspect of compensation. They suggested that there might need to be a specific clause to deal with the purpose and manner of expropriation and the practical application. The point was made that although other countries had expropriation legislation, South Africa was unique in having references to public purpose and public interest. There was also a difference between expropriation by individuals and an authority. Another Member pointed out that the Department had been reluctant to define property, and although “public” was defined, it was very wide, which gave rise to the potential to expropriate almost anything in the public interest, with the public being limited to raising challenges only in respect of the narrow issue of the amount of compensation. The Deputy Minister responded that a person subject to an expropriation action could approach the court at any time, and the reason for such an emphasis on compensation was that it would not like such disputes to be allowed to delay the process, for 80% of compensation had to be paid up front on taking possession, and that was why it was decided that the state would have to trigger the court process. Clause 21(3) was intended to cover other issues. In respect of the application of the Act, clauses 2 and 21 were explained, and the principle that administrative decisions by a competent authority could not then be subject to mediation was clarified. A decision of an executive authority executing an official function could not be reversed by the official, but only through a court process. A Member suggested that to add protection perhaps there should be a clause preventing the state from raising exceptions under section 65 proceedings. Another Member suggested that perhaps the definitions needed a closer look as well as the possibility of including a reference to “where reasonable, should include mediation..”. The Deputy Minister noted that the Department would consider specific and exclusive requests around security for costs, in terms of Court Rule 49, and proof of funds to go through with expropriation, as well as the mediation wording in clause 2(2). Other suggestions by Members were to clarify what “arbitrarily” meant and to ensure that decisions were based on empirical evidence. There had been some minor adjustments to the clause on urgent expropriation and the work on offences was still in progress, with Senior Counsel's opinion awaited. There was a suggestion that offences possibly committed by the expropriating authority might also be included. The Deputy Minister assured Members that the Department was not unsympathetic to the concerns raised and would look into them.
Expropriation Bill: Deliberations with Deputy Minister
The Deputy Minister of Public Works presented the latest version of the Expropriation Bill, with some amendments that had been proposed by the Committee or other commentators at earlier sessions.
Powers of Minister to expropriate
Ms A Dreyer(DA) asked if the various spheres of government, provincial and local government could also expropriate, pointing out that whilst this was a National Bill it had an impact on provinces. The way it read now it made it seem as if only the the National Minister of Public Works might expropriate, and she wanted more clarity on the position of provincial MECs.
The Chairperson added that although the provincial executives were referred to as Members of the Executive Council, they might be loosely referred to as ministers.
Mr Cronin said Chapter 2 was dealing with the Minister of Public Works and his/her powers of expropriation in terms of this law of general application. Other spheres of government or other Ministers who also had expropriation powers would be able to expropriate, presumably in the same way, on behalf of another organ of state if it fells within their particular power. However Chapter 2 specifically defined the Minister for the purposes of the Department of Public Works(DPW or the Department). This caused confusion in the public debate because the references to the Department started with Chapter 2 and the impression was that the whole Bill was written for the Minister of Public Works, but this chapter had to be included because the DPW was taking responsibility to introduce and handle the application of this general law. None of this was defined in terms of the Minister of Public Works and in terms of how any other legislation might apply, and this was an important point. He said it was correct that in provinces or indeed even in councils there might be some expropriation work, and the municipal councils could expropriate on behalf of another sphere of the state but these acts of expriopriation would have to be specifically in line with the legislation and follow the processes from Chapter 3 of the Bill.
Investigation and and gathering of information
The Deputy Minister wanted to clarify that Chapter 3 deals with the investigation facts; and set out how the expropriating authority investigated the feasibility and desirability of proceeding with the expropriation. He said that the Department proposed to the Committee that clause 5(7) should be changed from ‘if a person suffers damages’ to: ‘if the property in question was damaged’ as a result of the performance of an act contemplated in subsection(2) - which refers to investigating the appropriateness of this particular property for expropriation. The expropriating authority must repair or compensate the affected person for that damage, after delivery of a written demand by the affected person, and without undue delay. He said that the Department wanted to specify and embed the general way in which these kinds of cases were provided for. He gave the example that there might be damages caused to the property in the course of an investigation - such as a borehole being dug, and the Bill would provide that an assessment was done on the property to check whether damage was done, and if the expropriating authority was liable following these proceedings.
Mr M Filtane(UDM) said that in clause 5(7), the key performance area should not be the delivery but rather the fetching of a written demand. He asked would it not be better to rather refer to wording such as fetching, instead of saying ‘after delivery’ as this would put the state in a stronger position.
Mr T Walters(DA) said he held the opposite view. The purpose of the intervention was to protect the citizen against the worst case scenario. He said, rather than having a burden of proof as to whether it was delivered or received, it was better to see if delivery could be proven to have taken place. This would strengthen the case of somebody who had no access to attorneys and services. He believed it was better to keep the section as it was.
The Deputy Minister said that the words ‘after delivery’ meant that the ownership of burden of proof did not rest on the state rather than on the individual, and in fact it strengthened the hand of the affected person.
Consultation with municipality during investigation
The Deputy Minister said clause 6(2)(d) had changed. In its original wording, it had referred to a period for responding to the request by the Minister, but then it specified that the Minister should include a period within which the municipal manager must respond to a request. On reflection, this was considered to be too high-handed, because the Department wanted to avoid the situation where an expropriating authority might give the municipal manager 24 hours to give the information, which could be completed unreasonable and contrary to the spirit of cooperative governance, which the Department wanted to encourage. The Department therefore suggested striking out of the existing clause 6(2)(d).
The same applied to the original subclause 6(4), particularly the word “deemed”, as the Department advised, on reflection, that this offended against constitutionally and relevant powers of government, bearing in mind that the Integrated Development Plan(IDP) was a competence of local government. The Department had proposed new wording which would encourages the interaction of the different spheres in respect of any property which was in the area of the municipality; whilst it would compel a cooperative governance approach it would also be setting a reasonable amount of time within which there must be a response from the municipal manager.
Mr Filtane referred to clause 6(1) and asked why the Bill did not use the word “planning” rather than “town planning” because the latter wording seemed to be confined to a situation that no longer applied. Municipal boundaries no longer referred to “towns” and thus the word ‘town’ should be removed and rather merely have a reference to “planning”. He also suggested that “engineering services” should be removed also, to avoid issues that might arise from the over-detailing of these services.
Mr Walters said he was in agreement with Mr Filtane and suggested the Department must work on the wording. He questioned the intention behind clause 6(3) and asked if the intention behind the communication was to ensure that there were reasonable steps taken by the expropriating authority, to minimise any possible impact. He asked if there should not be a stronger obligation on the expropriating authority to take further reasonable steps, beyond just sending a letter to the municipal manager. He suggested that the clause should specifically say something to the effect that the expropriating authority should also take reasonable steps to ensure that no negative consequences of planning and housing would result.
Mr Cronin responded that in respect of clause 6(1), the Department was happy with changing the reference from town planning to municipal planning. He said that clause 5(1)(a), although general in nature, did actually cover what Mr Walters suggested, and part of this process was to engage with the municipal manager to ascertain an ethical exercise of power. He said the point of making the statement quite general here was to avoid the over-detailing of services that Mr Filtane had mentioned.
Mr Walters said the way he looked at the clause was that something might be planned that, in the minds of the expropriating authority, was considered suitable, but the clause did not go far enough to ensure that whatever was done was not going to be disruptive at the intergovernmental level. Expropriation should be part and parcel of cooperative government joint planning. He said the clause should look beyond the immediate suitability of purpose but also look at the potential impact as described in terms of the future engineering infrastructure, housing and municipal planning. He said this should be added into the legislation, because there was a gap.
The Deputy Minister suggested that the Committee should flag Mr Walters' question. He said the Department was sympathetic to the concerns and agreed in principle with the issues, but would like to reflect upon them and come back to the question at a later stage.
Notice of intention to expropriate
The Deputy Minister said the introduction of clauses 7(1)(e) and (f) was to try to overcome the dangers of property that was intended for expropriation being frozen, in an awkward situation, to the detriment of the party concerned. These clauses intended to set out that even at the stage where there was merely an intention, some information should be provided in the notice as to when the expropriation or temporary possession was likely to occur, giving an estimated date for the taking of possession of the property. There should be some guidelines and perspective in this process. He pointed out that an entity or person targeted for expropriation could have access to the court to consider whether anything had been done in terms of the intention to expropriate.
Mr Filtane said he was concerned about the choice of the words ‘estimated days’, and suggested that a better choice of wording would be “the intended date”. He pointed out that days would be counted, not estimated.
The Deputy Minister said that this issue was tabled in a previous meeting and this was basically a reminder of the principle that a notice of intention did not imply that it was a done deal that would invariably happen.
He added that in clause 7(7)(b) the Department had added the phrase “within a reasonable time” because it was sometimes hard to give a certain time limit to administrative actions because they could be very extensive and complex, but it was also accepted that they should not be open ended.
In respect of clause 7(7)(b)(iii) the wording was now ‘if the expropriation authority decides not to proceed with an expropriation of the property, it must inform the owner accordingly, in writing, within a reasonable time and publish such notification’. He pointed out that “publish” in this case carries the meaning that it should be published in the Government Gazette, because the original notice of intention to expropriate would have been gazetted, so that it would be proper now that the same level of communication be used for the publication of the intention not to proceed with expropriation.
Notice of expropriation
The Deputy Minister said that in regard to clause 8(1), the Department thought it would be unfair if the expropriation authority were to be held liable for not serving the notice, if certain information was not known to the Department, the parties or particularly the main owner of the property, in respect of disclosure of unregistered rights.
Mr Walters said he understood the reason for the insertion of clause 8(1). However, he could foresee some difficulty as part of the clause that was referred to also referred to landlords. One of the problems with land claims and rights was the difficulty in determining who had rights. He asked if this particular insertion excluded future land claims that might be made at a later stage; if so, there might be a problem in limiting the rights that were allocated to other people and it might be contrary to other parts of the legislation - especially if, for example, window periods might get extended.
Mr Filtane suggested that in clause 7(b)(iii) the phrase ‘not to proceed with an expropriation’ be replaced with ‘not to proceed with the expropriation’ because what was dealt with in this manner was a particular cause of action.
The Deputy Minister said that the Department would look into the suggestion of replacing ‘an’ with ‘the’ in clause 7(b)(iii).
In answer to Mr Walters' question, the Deputy Minister referred to clause 10(1).
Mr Walters asked how this would impact on land claims processes that needed to be reopened after an expropriation, or after a 30 day period. He asked if there was a potential conflict if, for argument's sake, the former districts had to be utilised for a public purpose, and then what had to happen if further land claims were put forward.
The Deputy Minister said this would definitely be looked at. He confirmed that this should not create a conflict – with the possible exception of a District Six-type situation, because this might well attract monetary compensation after the fact. He stated that the delivery period that applied in clause 10(1) was now 30 days, within which such a person must bring evidence to substantiate the claims. This could be sometimes quite complicated.
Offers of compensation
The Deputy Minister said the Department had changed clause 15(3) and had carried over the last part of this clause – stating ‘provided that nothing in this section shall change the ordinary civil onus on the party challenging the administrative action’ - to clause 21.
Mr Filtane suggested that there should be a comma after the phrase ‘contemplated in section 14(1)” in clause 15(3).
The Deputy Minister said the Department would consider the inclusion of the comma.
Payment of amount offered as compensation
The Deputy Minister said that the Department had corrected the grammar in clause 17.
Mediation and Determination by court
The Deputy Minister stated that clauses 21(1) and(2) had been amended. The Department had been advised that if the mediation process did not work for determining the compensation, then the expropriating authority should proactively take the matter to court. The amendment now specified what it was that was being taken to the court. He described the full process; should there be an attempt to come to an agreement through mediation that was unsuccessful, then the expropriation authorities would determine that there was no agreement and commence court proceedings, providing the necessary documentation to the court in respect of what had happened to date. The owner who was not happy with the compensation offered would then have to proceed by stating their case.
Mr P Groenewald (FF+) said that this clause did not deal with the question of whether the expropriation was justified in terms of public interest or public purpose. He suggested that clause 21(1) should rather say, “if the expropriation authority and expropriated owner or expropriated holders do not agree on the amount of compensation and the reason for expropriation...’.
Mr Walters said he recalled other similar points being made in the previous meeting. He stated that it would be preferable to have the reason for expropriation included under this clause. He said if reasons were given as to why this expropriation should be taking place, it would be more desirable to go to a mediation exercise. He thought that there was a possibility of a series of court cases arising. He therefore stated that he supported the proposal by Mr Groenewald.
The Deputy Minister said the Department did not want to write mediation clauses for each chapter. This was not to imply that mediation would be precluded from any part of the process. He thought that the general intention could be covered in clause 21(3). He also referred to what had been added over the last couple of weeks, following discussions, which included the insertion into the preamble, and a direct reference to section 34, which was about administrative justice.
Mr Groenewald said there was a difference. In clause 21(2), the initiator was the expropriating authority. In clause 21(3) the party initiating the process would be the claimer. If the expropriating authority was to take the initiative to go through the legal processes where the reason behind the expropriation was being disputed, then this was slightly at odds with the statement that the claimer must initiate. He thought that if the state was willing to initiate the process in one case, he saw no reason to make a distinction.
Ms Dreyer said that subclause (2) was seeking to deal with section 25(2)(b) of the Constitution. It was trying to find a solution that was more helpful to the ordinary people on the ground. There was some confusion, and she thought that the correlation between this clause and section 25 of the Constitution would need to be explained.
Mr M Dlamini (EFF) said that it seemed like the scope of the Bill had been narrowed and the discussions were really around the effect of the Bill on the payment of compensation. The issues were what would happen before an agreement was reached on what would be paid, what must be done if there was a dispute, what were the requirements around the reason for expropriation, and how the public was to be assessed in the process. He felt that the mediation was not confined to the narrow issue of whether the compensation was correct only. He felt that the principles of mediation needed to be dealt with throughout the whole bill, and not limited to the compensation element.
Mr Walters said the previous discussions on the issue of mediation had looked into the position of a person affected by the expropriation who did not have enough resources to fight the issue. The nature of mediation was to try to find common ground, where people could reach an agreement on how expropriation would take place, what part of the property gets expropriated and other issues – and he fully agreed that this went beyond the narrower aspect of compensation. He suggested that there should be a specific clause to deal with the purpose and manner of expropriation and the practical application.
Mr Groenewald said in relation to expropriation there were two issues. If there was a dispute, who was going to be liable for the costs? The way the clause was worded only referred to the fact that in the case of a dispute, it would have to be the expropriating authority that took the matter to the court.
The Deputy Minister said this proactive requirement that the Department introduced would come into play when the mediation attempts had failed, in order to deal with the challenges around compensation. It had been agreed that although it could be awkward for the expropriating authority to take a matter to court, the expropriated party would still have to pay lawyers if s/he wished to take on the challenge, in order to pursue the case, and run the risk of costs being awarded. This did not avoid the costs issue altogether. That was why the mediation route was preferable. However, he had been advised that the intention and reason for the expropriation did not quite fall within the same category; the challenges here would be related to administrative justice issues, and not to the issue of compensation. He said that the Department was not trying to make the Bill deal only with compensation, but it was specifically dealing with the issue of compensation in this clause. People could not be prevented from going to court but it must be done at the appropriate time when deciding if the expropriation was for public interest or public purpose.
Mr Dlamini said the Deputy Minister had clearly stated that according to the law the state had the power to expropriate. Why then had the Department even bothered to make mediation processes in place to decide how much should be paid. He thought that the changes amounted to narrowing Chapter 6 of the Bill, and he wondered about the link with section 25 of the Constitution, saying that there seemed to be a suggestion that some areas were more important than others.
Mr Groenewald said that he agreed with the Deputy Minister when he had said that nowhere in the world did expropriation legal processes cover everything. However, the situation with the South African legislation was somewhat unique. Firstly, the Expropriation Bill Act was intended for public purposes and this was quite clear. The Bill, however, also included another definition, referring to public interest. Referring to the submissions made during the public hearings, he noted that a number of institutions had commented that there were very wide definitions and had cautioned that this fact could give rise to problems. He added that there was a difference between an expropriation by an expropriation authority and expropriation by an individual, and the difference was in the legal processes, and there were differences in the legal timeframes. This means that when the expropriation was initiated by a community, for instance, timeframes may be stringent and there were a number of processes that needed to be followed. The issue of legal fees also arose. There was a difference if the expropriation was initiated by an expropriation authority. This, as he had pointed out, made it important to include the reason for the expropriation.
Ms Dreyer said the Deputy Minister seemed genuinely perplexed about the insistence on the ability question or take to court the in-principle matter of the reason for expropriation, rather than merely the amount of expropriation. She stated that, firstly, things were likely to be operating in a political environment with low levels of trust, and this point had to be taken into consideration. Secondly, there had been a reluctance or refusal so far by the Department to actually define property. The Minister said, that property was not limited to land. The term “public” was defined, but with a very wide definition. This meant that effectively, both property and public interest could include virtually anything. This meant that there was a lot of power to expropriate almost anything in the public interest, yet the public was effectively being limited to raising challenges or taking the matters to court only in respect of the narrow issue of the amount of compensation. This was the reason for the strong feelings that had been expressed that the the reason for expropriation should also be subject to possible court procedures.
The Deputy Minister said he was not perplexed at all. Every person whose belongings were to be expropriated had every right to approach the court for reviewing, assessing, and to look at whether the reason for the expropriation or the method that had been followed was in line with the Constitution and was legal. He said compensation was different to other issues. He noted that the whole of section 25 of the Constitution had to be considered. This included public interest, and compensation. Subsection (4) stated that a dispute on the amount of compensation alone shall not preclude the application of section 9’. Section 9 was about expropriation. The Department was trying, with this Bill, to allow the state to be confident that it could expropriate. Expropriation powers were set out in the Constitution. The public constitutionally acknowledged the right of the state to expropriate, with certain conditions and limitations. The reason the Department was paying particular attention to compensation was that it did not want disputes over compensation to actually delay the act of expropriation. When expropriation was to occur, there had to be payment of at least 80% of the compensation on the taking-of-possession of the property, or at least 80% of the offer from the State if there was still a challenge pending. The Department was trying to see how it could address this challenge. He said he had advised Mr Groenewald that if the state proactively opened up a case it would have an even shorter deadline, for it could take a person 15 days to access legal aid. For this reason, it had been decided that the state must take the responsibility for triggering the court process within the set period.
Mr Groenewald asked for an explanation as to why the Deputy Minister was saying there would be a shorter time frame; he thought that there would not.
The Deputy Minister said that a person had 15 days to bring the application, but 20 days to submit a plea after the case had being proactively initiated by the State.
Mr Walters said he was concerned that the Department was losing sight of the issues of why mediation was being proposed. The mediation was an attempt to give access to procedures to dispute and negotiate, which did not involve long and costly court processes, and at the same time did protect rights of the state to expropriation of property. He said the Committee must not look solely at the various ways of interpreting the Constitution and section 25. He thought there should be space for a debate around how it could apply to particular conflicts. The question was whether, over and above issues of compensation, mediation could usefully be used to ensure a better, constitutionally sound and more effective way of managing the process of expropriation. He thought that the efficiency of the Bill could be advanced by having a wider discussion on mediation and any other changes to the Bill that would be accommodating of individuals affected.
Mr Dlamini said that the Bill was selective. If it was about compensation only, the information could be obtained from Chapter 6. The Bill was not particularly clear on what would happen in the event of disputes, for information on this point was “scattered” across different clauses in the Bill. He wanted to reiterate that mediation should be the guiding point of the whole Bill, based on section 25 of the Constitution.
Mr Filtane said this was deliberated on quite intensively in previous meetings, and the Department agreed that it made sense to make provision for those facing a prospective expropriation to have access to courts. Mr Dlamini’s concern could be answered by referring to clause 21(3), which stated that ‘subsection(2) does not preclude a person from approaching a court on any matter relating to the application of this Act’.
The Deputy Minister said it was very important to remember that the Bill was not limited to only two matters; it was rather about the whole process that was required to lead the administrative actions.
Application of the Act
The Deputy Minister referred to clauses 2(1) and(2) and stated that there was a requirement, even before the investigative phase, that the authority had to show that any possible expropriation would fill the requirements of being for the public interest and public purpose. The notice of intention was another process of engagement with those intended to be expropriated, and this required certain specific steps to be taken, with a deadline on both sides, and only then could the notice of expropriation be issued. There was a long process, firstly with engagement, and then with mediation, so the expropriation was not arbitrary in this sense.
He also referred to clause 21(3), as raised earlier by Mr Filtane and Mr Dlamini, and the question why, if the Department was going to introduce mediation to reach mutual agreement on the compensation, the Department should not also use mediation for other points in the process. However, he made the point that administrative decisions to expropriate were not amenable to mediation. Once an authority had made its decision, it had discharged its statutory power and could not reconsider that decision. Only a court might then invest an authority with the power to make a different decision on whether or not to expropriate. This was quite a technical legal point. However, the point was that any actions by the executive that might be challenged could not then be submitted to mutual consensual resolution. This would open the door to the possibility that the state might act arbitrarily, make a decision to carry on with the notice of intention to expropriate, and then go to mediation. In terms of the Promotion of Administrative Justice Act, a decision of an executive authority executing an official function, could not be reversed by the official, but only through a court process.
Mr Filtane said that whilst one clause allowed a person facing a prospective expropriation to go to the courts on any matter, he was worried that the State, with the intention of frustrating the whole process, could raise a section 65 exception. He would like to see a clause that prevented the state from raising this exception, so that people would not have to prove that they had funding to proceed with the expropriation.
Mr Groenewald said that he would accept the principle behind the official functions. However he was still worried that if there was a difference of opinion as to the reason behind the expropriation, the State should still initiate a process to have the issue adjudicated by the court.
Mr Walters emphasised his earlier point that this was really about access to legal recourse, and not unreasonably encumbering the state. He said the suggestion on page 9 and 10 was what would really take the deliberation forward – and that was to look at the potential for mediation as to public interest and the specific purpose. He suggested that wording making reference to “where reasonable, should include mediation..” could be used. He suggested that the Committee should not lose sight of Mr Groenewald;s point that whilst other countries had legislation allowing for expropriation, South Africa had a public interest definition that was not the same as other countries' legislation. He suggested this definition should be looked at carefully to make sure that it absolutely was in line with the whole of clause 25.
Mr Dlamini asked why it was necessary for the Bill to have both page 9, if it covered the point that one had a right to go to court and dispute, and also had Chapter 6. He asked why it seemed that preference was given to the issue of compensation; he had not received a satisfactory answer on why there was priority or preference being given to this point alone, rather than to all the issues covered in section 25 of the Constitution.
Ms E Masehela (ANC) said the issue of compensation in section 9 was treated the same way as others, and she thought that Chapter 6 was included to cover the mediation, as requested.
Mr Dlamini asked if it was suggested that there were some clauses that were more important than others.
Mr Walters said the issue of compensation was a fundamental part of any expropriation debate. The difference was when, in the process, mediation was to take place.
The Deputy Minister said the Department would consider specific and exclusive requests around security for costs, in terms of Court Rule 49. He said the consistent concern highlighted by Members of the FF+ had related to he definition of public interest. The Department would like to work with the current definition. He agreed that there was a difference between the South African Bill and other legislation in other countries; public interest was specifically included because it refers to the very reality of South Africa. He said he disagreed with Mr Dlamini that the whole Bill deals with Section 25 of the Bill of Rights. The Department wanted provide confidence, especially to the state. He said the Department would look at the concern around the issue of proof of funds to go through with expropriation. It would also consider what wording it might use to include mediation in clause 2(2)
Ms Masehela suggested that Members of the Committee should come up with a definition of public interest.
Mr Walters said the issue of “selling” was politically abused. In the clause dealing with the application of the legislation, perhaps there should be clarity on what “arbitrarily” means, and perhaps the clause could be strengthened.
Mr Dlamini said that it would be wrong for the Committee to come up with a definition for public interest because the definition was initially based on the Constitution, and thus should not deviate from that.
Mr Walters said that the Members of this Committee were the legislators and were guided by the Constitution. He said it was in the interest of each political party in Parliament to come up with legislation that would take South Africa forward. He said his suggestion in relation to clause 2(1) on the application of the Act, referring to reasonability, was based on empirical evidence. There needed to be an obligation that the expropriating authority would not politically determine what expropriation was, but rely on a determination that was based on evidence.
The Chairperson said it should be remembered that in terms of section 25(1) of the Constitution, no one will be deprived of land in terms of the law or a general arbitrary decision. No law permitted arbitrary deprivation of property.
The Deputy Minister said “arbitrary” could refer to arbitrary fairness, such as a person not respecting the terms of PAJA , or to the absence of sufficient reasons behind an expropriation. He said the Department had heard Mr Walters' point but was reluctant to try and achieve this by using only a few words. The Department had put thought into what would be a proper procedural process that required input in terms of substance, and the investigative process, by requiring the expropriating entity to come forward with empirical evidence. The whole Bill was trying to define what was not arbitrary.
Mr Walters took the Deputy Minister’s point but was still concerned that the Act could be abused in this manner; his views were on record.
The Deputy Minister stated that there were minor adjustments in this section.
The Deputy Minister stated that the section on offences was still work in progress and the Department had not yet tested the amendment with Senior Counsel. The Department was trying to highlight that it fully agreed that clauses 27(1)(a),(b) and (c) were administrative defaults, and not criminal cases. He said also that the Department was looking at amending the heading to ‘Administrative penalties and offences’ because it was not just offences being covered in this section.
Mr Walters said he was happy with the framework, but the only issue was that there could be a concern about the Minister.
Mr Filtane said maybe the range of penalties should be stated in the Regulations. From the government's point of view, it had to look at the consequences should a person subject to an expropriation order fail to comply. He asked if it was assumed that the Department would just proceed as contemplated in the clauses?.
Ms Masehela asked if it would not be proper to include clause 27(3) in chapter 2, since it talked about the powers of the Minister.
Mr S Jaftha (AIC) asked whether there was not an element of bias if the Bill referred only to offences by the persons whose property was being expropriated, and not to any that might be committed to the expropriating authority.
The Deputy Minister stated that, as indicated earlier in response to Mr Walters, and in relation to the points raised by Mr Filtane, the Department was not unsympathetic and would look into the suggestions when perfecting the amendments. He said documentation would be requested and the expropriating authority must exercise its discretion in regard to the documentation, which might show it would be unwise to expropriate for any number of reasons. However, if documentation was held back this would not mean that there was no reason to expropriate and the Department would then need to proceed on the basis of what was in front of it.
The meeting was adjourned.
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