Expropriation Bill [B4-2015]: Chapters 1-3 proposed amendments, with Deputy Minister

Meeting report

The Chairperson asked Members to read over the version of the Expropriation Bill placed before it. The Parliamentary Legal Adviser will then go through the Bill on a clause by clause basis and Members would be given an opportunity for clarification, additions and suggestions.

[Members were given 15 minutes to read through the A-list of proposed amendments to the Bill.]

Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, was about to take the Committee through the proposed amendments when Dr Madlopha referred the Committee to the long title of the Expropriation Bill:

Long Title
To provide for the expropriation of property for a public purpose or in the public interest, subject to just and equitable compensation; and to provide for matters connected therewith.

Dr Q Madlopha (ANC) indicated that there was an agreement that “subject to just and equitable compensation” in the Bill should be deleted and replaced by “as contemplated in section 25 of the Constitution”. The Bill at the moment looked like it was both an Expropriation and Compensation Bill, while it only needed to focus on expropriation.

Ms A Dreyer (DA) said that she was completely opposed to the suggestion by Dr Madlopha to delete “subject to just and equitable compensation” as this was a crucial component of this whole Bill.

Mr M Filtane (UDM) supported Dreyer that “subject to just and equitable compensation” should be retained as this was indeed a crucial component of this Bill.

Dr Madlopha mentioned that there was no problem if “subject to just and equitable compensation” was retained in the long title but the understanding is that the provision for compensation is part of the Bill. It must be reiterated that when the Bill was enacted, it was meant to deal precisely with expropriation and not compensation.

Mr Filtane indicated that section 25(5) of the Constitution makes it clear that “the state must take reasonable legislative and other measures to enable citizens to gain access to land on an equitable basis” and therefore the Committee was compliant with the Constitution in passing this Bill.

Ms Dreyer agreed with Mr Filtane, adding that it was strange that the suggestion to delete “subject to just and equitable compensation” in the long title of the Bill would be coming from the ANC as this proposal had been made by the EFF in the previous Committee sessions.

The Chairperson said that the purpose of the meeting was for Members to produce the best possible Bill and it was irrelevant whether the idea had been initiated by the EFF or any other political party.

Ms P Adams (ANC) also supported the suggestion made by Dr Madlopha that “subject to just and equitable compensation” needed to be deleted as this was already covered in section 25 of the Constitution.

Ms Dreyer maintained that “subject to just and equitable compensation” must be retained as this was the cornerstone of the Bill.

Dr Madlopha said that the proposal to delete the part “subject to just and equitable compensation” was based on the fact that there was no way there would not be just and equitable compensation on the expropriated property as the Constitution is the supreme law of the country. The main purpose of the Bill was to expropriate property and not compensation and there was no law which would be enacted while in contradiction to the Constitution.

Mr Filtane referred to section 25(5) of the Constitution which clearly instructs Members to make an expropriation law and therefore it was impossible to delete the most important part of the Bill, that talks about the expropriation of property which is constitutionally compliant.

Dr Madlopha repeated that the Bill was about expropriation while also cognisant of the provision made in section 25 of the Constitution for expropriation of property to be “just and equitable”.

Ms Dreyer indicated that she was not sure why Dr Madlopha was so adamant or felt so strongly that the part “subject to just and equitable compensation” should be deleted in the long title of the Bill as this was an important part of the Bill. The deletion of the phrase “subject to just and equitable compensation” would create the impression that the Bill was merely dealing with expropriation and not just and equitable compensation.

The Chairperson said that the ANC Members could argue that even if “subject to just and equitable compensation” were deleted, the issue of just and equitable compensation is already covered in the Bill.

Mr Filtane further referred the Constitution which clearly stated that there is a need to recognise the imbalances of the past and therefore it was impossible to talk about expropriation without compensation. In essence, the way the long Bill is structured is in compliance with the spirit and preamble of the Constitution. It was absurd that the problem with the long title of the Bill only seemed to appear after the Committee already had 10 meetings on the Bill. It could be correct to assume that there had been an instruction from somewhere that the Bill should not pass in its present form and this might change the spirit of the debate as Members debate the Bill on a clause to clause basis.

The Chairperson said that the Committee had gone through a long process and there is nobody that had received an instruction from anywhere and Members are at liberty to articulate their views and suggestions on the Bill. The purpose of the meeting is to refine the Bill as much as possible and there is assurance that any views that are expressed here are not based on an instruction from the ANC or any political party.

Ms Dreyer stated that the five most important words in the Bill included “expropriation”, “property”, “public purpose”, “public interest” and “compensation” and it was impossible to delete any of these key words in the Bill. The deletion of the phrase “and to provide for matters connected therewith” in the long title of the Bill would not have a major impact as this was not related, in any way, to the purpose of the Bill.

The Chairperson responded that all the words in the long title of the Bill are important and therefore it would be improper to suggest the deletion of “and to provide for matters connected therewith” as all bills contain this phrase in order to accommodate any eventuality that might have relevance to the Bill.

Dr Madlopha stated that the purpose of the Bill was about how the expropriation of property would be implemented and this process of implementation would take into cognisance the principle of just and equitable compensation as clearly stipulated in section 25(3) of the Constitution. It was improper for Members to lambaste and accuse each other of being “instructed from somewhere” to express this view as this was an insult to one’s intelligence and ability to think independently. The agreement that had been reached was that “subject to just and equitable compensation” should be deleted in the long title of the Bill but maintained in other parts.

The Chairperson said that it was acceptable for Members to articulate the views of their political parties and there was nothing wrong about that.

Ms Dreyer mentioned that it was perplexing that Dr Madlopha wanted the part “subject to just and equitable compensation” to be deleted as was an integral part of the Bill and therefore it needed to be incorporated in the purpose of the Bill. The purpose of any bill is supposed to encapsulate what the bill is all about. It must be taken into consideration that we are currently operating in an environment of a low level of trust from all sides and the Expropriation Bill is one of the contentious bills, therefore it would be advisable for the Committee to retain the current long title of the Bill.

Mr Filtane wanted to apologise if he may have offended Dr Madlopha for his utterances as he was only articulating the general standard that Members are often instructed by their political party to express its views in meetings. It was impossible to assume that Members were here in their own personal capacity as there is always an instruction somewhere on the views to be expressed and those to be rebutted. It must be pointed out that any deletion made to the current long title of the Bill could make it incomplete and it might be difficult to interpret the purpose of the Bill in courts.

The Chairperson suggested that Members needed to move on but noting that there are still concerns on the long title of the Bill.

Members agreed with the suggestion.

Chapter 1: Definitions

“claimant"
Mr Filtane asked how the definition of “claimant" and "disputing party” would correlate with one another. It was unclear whether the Department wanted to use both of the terms interchangeably or delete “claimant” and replace with “disputing party”.

Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, responded that one is a “claimant” in the beginning of the process but once there is a dispute on the amount to be compensated then that person is referred to as a “disputing party”.

Mr Filtane asked how healthy it was to use “claimant” and “disputing party” interchangeably, especially when approaching the court.

Ms Ngcobozi responded that the provision of two definitions made it easier for the purposes of interpretation in court, as the drafting of the legislation needed to be as clear as possible to avoid confusion in the interpretation.

The Chairperson added that it was necessary for the sake of clarity to have the definition of “claimant” and “disputing party”, as it had already been clarified that one is a claimant in the beginning of the process but once there is a dispute on the amount to be compensated, then that person becomes a “disputing party”. It must be highlighted that one can be a “claimant’ without being a “disputing party”

Members agreed with the amendment.

"court"
Mr Filtane wanted more clarity on the difference between High Court and Magistrate Court in the definition of “court”, especially on the court to adjudicate the unregistered interest of the individual who is located in, for example, Gauteng, while the property that is the subject of contestation is situated in, for example, Free State.

Ms Ngcobozi replied that the court would adjudicate the case where the property is situated.

Mr Filtane asked why this was the case as the issue was mainly with an unregistered interest and it must be taken into consideration that people in nowadays move around and they have business interests throughout the country.

The Chairperson replied that there is a general principle in law that a matter must be disputed where it originated.

Deputy Minister Cronin agreed with the Parliamentary Law Adviser that the court would adjudicate the case where the property is situated.

Mr Filtane suggested that the matter needed to be investigated further as the Parliamentary Law Adviser sounded unsure about her statement.

Members agreed with the suggestion.

“date of expropriation”
Ms Dreyer proposed the insertion of “a notice of 90 days before the commencement of expropriation” under “date of expropriation”. This could be noted for now and then deliberated at a later stage.

Members agreed with the suggestion.

“expropriated holder”
Mr Filtane suggested that “which has been expropriated” in the definition of “expropriated holder” should be deleted and replaced by “which is being expropriated” as the process here was still in progress and not completed. He also suggested that “expropriated holder” should be replaced by “expropriated person” as “holder” had a totally different connotation.

Ms Ngcobozi replied that there would be clarity on the matter when the Committee arrives at the relevant chapter which deals with the “expropriated holder”.

Members agreed with the suggestion.

“public works”
Mr Filtane suggested that “public works” in should be written in capital letters as this was referring to the Department of Public Works.

Members agreed with the suggestion.

“legal disability”
Dr Madlopha proposed that the term “legal disability” should be deleted as this was a broad term and it may raise many issues of interpretation.

Ms Dreyer said that the legal disability referred to ‘the person who is required by law to act as a representative”.

Dr Madlopha maintained that perhaps there was a need to review the term “legal disability” as this was indeed a broad term that could be construed in different ways.

Members agreed with the suggestion.

“property”
Ms Dreyer requested the Department provide a definition of “property” as what was to be expropriated was property and the Committee had not been provided with a definition of what ought to be expropriated. The limit of what was to be expropriated should be provided in the definition of “property” and at the moment it was unclear whether pension funds, inheritance and investment could also be included in the expropriation.

Mr Filtane said that he accepted the advice that had been provided by senior counsel on the need not to provide a definition of “property”. However, there was no definition of “property” in section 25 of the Constitution. It was unclear what exactly was causing the Department to avoid providing a definition in  “property”. It must be pointed out that section 25 of the Constitution does not refer to an unregistered interest in property and section 25(7) only referred to property that was acquired after 19 June 1913 ignoring property acquired before this time. It was unclear at the moment if the Department would not expropriate property that was acquired before 19 June 1913. It would be the biggest loophole for the Department to only define property as “contemplated in section 25 of the Constitution” as there are people in the country that had been holding property prior to 1913. The Department should provide the definition of “property” in the context of the Bill that is currently being discussed.

The Chairperson suggested that Members from different political parties should come up with their definition of “property” and this should indeed be in the context of the Bill that is currently being discussed.

Mr Filtane proposed that Member should be given a little bit of time to discuss and deliberate on what ought to be construed as “property” and then come up with a definition by next week.

Members agreed with the proposal.

“public interest”
Ms Dreyer suggested that “and other related reforms in order to address the results of past racial discriminatory law or practices” should be deleted in order to be consistent with the exact wording in section 25 of the Constitution.

Dr Madlopha differed with the suggestion made by Ms Dreyer as the purpose of expropriation was to redress the past racial discriminatory law or practices.

Ms Dreyer explained that the proposal to delete “and other related reforms in order to address the results of past racial discriminatory law or practices” was not in any way suggesting that there is a need to ignore the past racial discriminatory law as that is already contained under section 25(8).

The Chairperson noted that this sounded similar to the suggestion that had been made by ANC Members that “subject to just and equitable compensation” should be deleted in the long title of the Bill as it is already contained in section 25.

Dr Madlopha maintained that “and other related reforms in order to address the results of past racial discriminatory law or practices” should be retained as this was also an integral part of the Bill. Communities should also see that the purpose of the Bill is to redress the imbalances of the past.

Ms Dreyer asked for the meaning of “and other related reforms” and for examples of such reforms.

Mr Filtane replied that the meaning of “and other related reforms” was left to one’s imagination and it could be the subject of dispute. It would be useful for the Committee to dispense with the phrase as it was too broad.

Dr Madlopha said that the sentence should be read in its entirety rather than selectively as it is clear that the “and other related reforms” should seek to address the imbalances of the past.

Ms Dreyer maintained that she had not been provided with examples of “and other related reforms” as this phrase was once again too broad and could mean anything.

The Chairperson replied that it would be difficult to provide precise examples of what ought to be “other related reforms” as this was dependent on the particular context and each and every context might have different examples.

Deputy Minister Cronin supported the suggestion to delete the phrase “and other related reforms” and replaced it with “and to reforms”.

Members supported the addition that had been made.

“valuer”
Ms Dreyer indicated that the phrase “in relation to land” needed to be relooked at as there could be other property other than land. What would be the purpose of the office of valuer general for property other than land? Why is there no specific reference to the office of valuer general?

Mr Filtane agreed that there was a need to relook at the phrase “in relation to land” as there was indeed property other than land included in the Bill.

The Chairperson replied that the reason for not stipulating the role of the office of the valuer general was because the office was still being set up.

Deputy Minister Cronin replied that the Department was defining “valuer” as it is being used in the Bill and the office of valuer general was not going to do all valuation for the purposes of expropriation.

Ms Ngcobozi replied that it was not useful to list all the property to be expropriated and therefore if the Department was dealing with a specific property then that specific valuer who values that kind of property, which is not limited to land, will value that specific right.

Members agreed with the explanation.

Afternoon session

Clause 3: Powers of Minister to expropriate
Ms Dreyer suggested that the word “must” in clause 3 should be replaced by  “may” as the Minister may need to consider other factors before commencing with expropriation, for example, the people occupying the land and purpose of the land.

Dr Madlopha asked if the phrase “subject to and in accordance with the provisions of this Act” did not cover the concern of Ms Dreyer.

Ms Ngcobozi replied that it had been highlighted already in clause 3(2) that “if an organ state, other than the expropriating authority, satisfies the Minister that it requires a particular property for particular purpose or in the public interest, then the Minister shall expropriate that property on behalf of the organ of state”, meaning the discretion to expropriate will be in the satisfaction of the Minister.

Ms Dreyer suggested that it would be useful to add “must commence with the process of expropriation”.

Dr Madlopha reiterated that the phrase “subject to an in accordance with the provisions of this Act” meant the Minister had already considered all the process to be followed before commencing with expropriation.

Members agreed with the explanation.

Mr Filtane proposed that in clause 3(c), it would be it would be useful to stipulate the timeframe within which the Minister of Public Works should be refunded all the costs incurred in the performance of his or her function on behalf of an organ of state. The need to stipulate the timeframe was important when one considers that there is a situation in South Africa where the organs of state fail to honour their duties towards a sister organ of state. The suggestion is that the Department should state “within reasonable period of time”.

Mr K Sithole (IFP) supported Mr Filtane as this would expedite the process of payment of all the incurred by the Minister in the performance of his or her function on behalf of an organ of state.

Members agreed with the suggestion.

Clause 4: Delegations or assignment of Minister’s power and duties
Ms Dreyer cautioned against putting an undue administrative burden on the Minister. She thus proposed that the Minister be able to delegate powers and duties to an official in the Department, Premier of the province or even the municipal council in order to undertake the duties of expropriation. This was particularly useful in the situation where there is an urgent expropriation to be undertaken while the Minister is out of the country.

Dr Madlopha replied that the Minister was allowed to delegate his or her powers and duties to anyone who was capable to perform the task of expropriation.

The Chairperson corrected him by saying that clause 4(2) made it very clear that the Minister may not delegate or assign the powers or duties conferred or assigned in terms of section 3, 22(1), 23(1) and 28.

Deputy Minister Cronin replied that there is always a Minister of Public Works; therefore there is an individual who becomes acting Minister of Public Works in cases where the Minister is unable to perform his or her duties. Premiers or municipal councils have the power of expropriation but clause 4 was precisely dealing with delegation or assignment of the Minister’s powers and duties.

The Chairperson asked if there is concurrence on clause 4(2) that “the Minister may not delegate or assign the powers and duties conferred or assigned to him or her in terms of section 3, 22(1), 23(1) and 28”.

Members agreed with this.

Clause 5: Investigation and gathering of information for purpose of expropriation
Mr Filtane suggested that they insert “or any other person” in clause 5(4)(a) so as to accommodate the situation where the documents of the property are not with the owner but another person.

Mr Sithole asked the difference between the “owner” and “occupier” of the property.

Mr Filtane said that it was not unusual in South Africa to hear about the documents of the property not being with the owner but held by financial institutions or even kept by lawyers and the inclusion of “any other person” was attempting to close the loopholes.

Ms Ngcobozi replied that the point made by Mr Filtane was valid but she expressed concern about the unintended consequences, especially when one considers the confidentiality of the documents that are with the lawyers or financial institutions.

Dr Madlopha mentioned that the better option was to ensure that the owner or the occupier were the ones responsible for bringing the documentation that is required.

Mr Filtane maintained that a shrewd lawyer could “get away with murder” by saying neither the owner or the occupier is in possession of the documentation that is required.

The Chairperson suggested that the Committee should rather flag this and come back to it at a later stage but the general consensus is that “the net should not be cast wider”.

Ms Dreyer proposed that there should be the addition of “repaired to its original state” in clause 5(7) in case the property was damaged as a result of the performance of an act contemplated in subsection (2). However, it must be emphasised that this was only applicable to cases where the expropriation was not approved.

The Chairperson said that the suggestion made by Ms Dreyer would be taken on board and discussed at a later stage.

Mr Filtane requested the Department provide clarity on the context of Institution of Legal Proceedings Against Certain Organs of State Act (No 40 of 2002) as promised in a previous meeting.

Deputy Minister Cronin assured the Committee that it would be provided with the context of what is contained in the Institution of Legal Proceedings Against Certain Organs of State Act.

Clause 6: Consultation with the municipality during investigation
Nothing has been changed.

Clause 7: Notice of intention to expropriate
Ms Dreyer said that an illiterate owner of the property might not be able to provide a written statement stipulating the amount claimed as just and equitable compensation as instructed in clause 7(2)(ii). She suggested that an expropriator should make an offer of the just and equitable compensation to be made to the expropriated owner and be left within the owner whether to accept or reject that offer.

Deputy Minister Cronin reminded Members that clause 7(2) makes an attempt to have a willing buyer, willing seller strategy, which is a necessary step for expropriation to meet the “just and equitable compensation” test.

Dr Madlopha clarified that expropriation was the last resort that is performed after there is no agreement on whether to hand over the property to the state or the particular department.

Members agreed with the clarification.

Mr Sithole expressed concern that the focus on the expropriation of land in clause 7(3)(a) was limited to the department of rural development and land reform, department of mineral resources and the department of water and sanitation.

Mr Filtane asked the reason the Department of Transport (DoT) was not included with these departments dealing with land as this was the department that often required a large scale of land for building roads and other infrastructure.

Ms P Kopane (DA) said that she was comfortable with the current departments that had been included as those were the departments that are responsible for land.

Deputy Minister suggested that perhaps there was a need to insert “any other relevant department” in clause 7(3)(a) in order to be inclusive of all departments that may be affected.

Members agreed with the insertion.

Ms Dreyer suggested that in clause 5 the Department should allow owners to be provided with reasons for why their objection to the intention to expropriate is not upheld and to notify the owners on receiving their objections.

Dr Madlopha replied that it would be illogical for the Department to respond to people that had not objected to the intention to expropriate the property.

Ms Dreyer clarified that her concern was for those who had objected to the intention to expropriate the property.

Mr Filtane indicated that those finer details should only be included in the regulations and not necessarily in the legislation, as the management of the receipts was more an administrative issue than anything else.

Ms Dreyer maintained that some other clauses go into detail on how the processes should be conducted and therefore it was impossible to suggest that some finer details should be included in the regulations than in the Bill itself.

Ms Ngcobozi referred Members to the Constitution particularly section 33(1) on administrative action and there is an emphasis on the need to follow the Promotion of Administrative Justice Act (PAJA) steps.

Ms Dreyer insisted that the law must create certainty especially when dealing with an issue that is as sensitive as expropriation. Members had no control of what the Minister would include in the regulations but had the power to influence what was in the Bill. Therefore, the Department should allow owners to be provided with reasons on why the objection to the intention to expropriate is not upheld and to notify the owners on receiving the objections.

Mr Filtane maintained that section 33 of the Constitution covered the finer details like the management of the receipts.

The Chairperson said that the suggestion that had been made by Ms Dreyer would be taken on board and deliberated at the later stage.

The Chairperson thanked everyone who was present in the Committee and then indicated that tomorrow the Committee would commence from clause 8: Notice of expropriation, on page 11.

The meeting was adjourned.