Expropriation Bill: public hearings day 2

Public Works and Infrastructure

25 March 2021
Chairperson: Ms N Ntobongwana (ANC)
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Meeting Summary

Video: Portfolio Committee on Public Works and Infrastructure, 25 March 2021

The Committee continued with virtual public hearings on the Expropriation Bill.

Four individuals made submissions: Mr Brian Musto, Ms Pretty Olifant, Mr Cameron Dugmore (ANC) on behalf of the official opposition in the Western Cape legislature, and Mr Faiez Jacobs (ANC) on behalf of the Cape Flats communities. Seven organisations also made submissions: Transvaal Landbou Unie (TLU), the Congress of South African Trade Unions (COSATU), the National House of Traditional Leaders (NHTL), the Minerals Council, the African National Congress Women’s League (ANCWL), and, in a joint submission, Business Unity South Africa (BUSA) and the Agricultural Business Chamber (AGBIZ). The Committee would discuss the submissions in a later meeting, following public hearings and a second round of oral submissions.

Many submissions commented on the inadequacy of the existing Expropriation Act 63 of 1975, and on the need to standardise and clarify expropriation procedures. There was also broad consensus on the need to redress historical land dispossession. Submissions spoke to the personal, cultural and social importance of such redress, and many lauded the Bill as a powerful tool for land restitution and redistribution.

Mr Musto, NHTL, the Minerals Council, ANCWL, and BUSA and AGBIZ recommended substantive amendments to the Bill. Mr Musto and the Minerals Council agreed that the Bill would not pass constitutional muster in its current form. Notably, submissions recommended that the Bill should provide a clearer and narrower definition of property. NHTL requested that communal land should be exempted from expropriation. BUSA and AGBIZ said that the Bill was insufficiently clear about what would happen if the purpose for which the property had been expropriated lapsed.

There was significant disagreement about expropriation without compensation. Mr Musto, TLU, the Minerals Council, and BUSA and AGBIZ opposed the nil compensation provision, arguing that it would undermine investor confidence and that land reform could be effected without it. The Minerals Council believed it unconstitutional. Other submissions supported the provision. They said that, in the past, land reform efforts had been hindered by overcompensation and by delays arising from disputes over compensation. They also cited moral issues with providing compensation in certain cases, given that colonial and Apartheid-era expropriations had not been compensated. ANCWL opposed compensation for the expropriation of land which had been acquired through dispossession, and recommended that the chapter on compensation be replaced with provisions regarding the payment of reparations. Similarly, NHTL said that the determination of compensation should take into account how the property had been acquired, the owners’ current standing, and the benefits the owners had reaped over time from the property.

There was also disagreement about which spheres and branches of government should be involved in expropriation procedures. Mr Jacobs and others supported the Bill’s position that the determination of compensation was an executive function, rather than a function of the courts, but Mr Musto and the Minerals Councils argued that that position was unconstitutional. NHTL recommended that only the Minister should be given expropriating powers, to preclude conflicts of interest. Several submissions, however, and especially COSATU’s, said that the Bill provided adequate checks and balances against abuse by government.

Meeting report

Opening remarks
The Chairperson said that it was the second day of oral submissions on the draft Expropriation Bill, and that oral submissions were themselves the second phase of the process of ensuring that the draft Bill would go before Parliament. The first phase had been written submissions, and the closing date for this had been 28 February 2021. While compiling the written submissions, the Committee had noted further requests for oral submissions. Therefore, in June, after the Committee had completed its public hearings in all provinces, it would hear a second round of oral submissions. Everyone, including those who had not been invited to make submissions in the first round, would be heard.

The draft Expropriation Bill would repeal the Expropriation Act 63 of 1975, which predated the Constitution of 1996. The government needed a uniform way of dealing with expropriations across all expropriating authorities. It had to ensure that apartheid-era laws were changed to align with the Constitution.

The Chairperson said that the Committee appreciated the speakers’ submissions and would listen to and note their concerns. However, the Committee would not “take it lightly” if submissions insinuated that the government had not been “acting correctly.” The government was doing all it could.

Individual submissions would be given 15 minutes each, and organisations 30 minutes each. In discussion, Members would ask questions of clarity only – deliberations on the submissions would take place in a later meeting.

Submission by Mr Brian Musto
Mr Brian Musto, a lawyer and financial adviser, made an individual submission. He said that he had personally opposed apartheid and had “enthusiastically” welcomed its demise. However, since 1994, he had seen new laws, introduced to redress past inequalities, have the unintended consequence of worsening inequality. The Expropriation Bill, if not amended, would also have unintended consequences. Such a Bill was necessary to replace the 1975 Act, but there were problems with the current draft. Those should be rectified to signal to the world that South Africa was serious about the responsible protection and expansion of property rights. Mr Musto made three recommendations.

The definition of property

Mr Musto recommended that the definition of “property” in clause 1 of the Bill should be amended to exclude movables, investments, and other property protected under section 25(1) of the Constitution. It was clear that section 25 of the Constitution permitted the expropriation of property only under a narrower definition of property, limited to land and rights in land only. The Bill’s current definition of property, lifted from section 25(4)(b) of the Constitution, was too broad and was unnecessary to achieve the Bill’s objectives regarding land expropriation. 

Expropriation of property for nil compensation

Mr Musto recommended that clause 12(3) of the Bill should be amended to disallow land expropriation for nil compensation, except for in cases involving unused state-owned land. Clause 12(3) currently allowed the state to expropriate all types of property for nil compensation, which was incompatible with the Constitution’s requirement of just and equitable compensation.

Rectification of expropriation procedure

Finally, Mr Musto recommended that the procedure set out in clauses 8 and 9 of the Bill should be amended to disallow expropriation of any immovable property in the absence of agreement on compensation or until the expropriating authority is authorised to do so by a court of law. This would protect property rights and avoid the difficulties that would ensue if a court overturned a decision of the Department. At present, clauses 8 and 9 were incompatible with section 25(2)(b) of the Constitution.

For example, at present, nothing in the Bill prevented an insolvent municipality from, “on a whim,” expropriating a building to serve as their municipal offices if it could not pay its rent. Clauses 8 and 9 only required such a municipality to provide a notice of expropriation to the owner.

In conclusion, Mr Musto said that expropriation for nil compensation was “counter-productive” and would deter property investment by creating the perception of weakening property rights. For some politicians, the expropriation policy was mere “smoke and mirrors” to pacify the poor, but it could become “sinister” if the wrong officials wielded power. Many incompetent or corrupt officials worked in state entities, and to give them the powers outlined in the Bill would be “unacceptable” and contrary to the rule of law. 

Ms A Siwisa (EFF) followed up on Mr Musto’s example about expropriations by municipalities with a question about buildings that were known to be illegally occupied or illegally purchased. How should such situations be handled in the Bill?

Mr E Mathebula (ANC) noted that Mr Musto was concerned that the Bill would make landowners vulnerable by giving government unfettered powers to expropriate property. However, the Bill required that property could be expropriated only in the public interest and only if the property was not being properly used. If property was wrongly expropriated, citizens had legal recourse to approach the courts and prevent the government from abusing its powers of expropriation. The law was clear. Did Mr Musto believe in the rule of law in South Africa? If he did, should that not change his mind and lead him to support the Bill’s adoption? 

In response to Mr Mathebula, Mr Musto said that he did believe in the rule of law, but he also believed that officials sometimes obtained legislative powers that could be abused. It was common knowledge that such powers had been abused in the past. Although legal recourse was built into the Bill, it was available to property-owners only after, and not prior to, expropriation and eviction. In that sense, the procedure was “the wrong way around.” The onus should be on the expropriating authority, not on the property-owner, to approach the courts. Officials could not be given the right to expropriate without a court order. Therefore, clauses 8 and 9 should be amended to require that if agreement on compensation was not reached, the courts should “have a say” in determining the compensation amount. 

Mr Musto said that there were many laws relating to property and the illegal occupation of property, and those could be used to evict illegal occupiers. The system had to be just. A system where people could “come and take what they want” was not what the President or any citizens desired.

It was common knowledge that many state officials could be bribed, and the door would be opened to corruption if courts did not determine compensation amounts. It would lead to situations like that seen, for example, in the case of Ivan Cloete – “venal” officials could decide to give properties to uMkhonto we Sizwe (MK) veterans or “some pal of theirs” without the Minister’s knowledge. The possibility was a concern to all people of all races.

Submission by Ms Pretty Olifant
Ms Pretty Olifant, a business owner, social entrepreneur, and performing artist, made an individual submission. She said she was happy that there had been progress with land expropriation legislation, and she supported the Bill. The issue was personal and “close to her heart,” as her grandmother’s family had had acres of land and cattle in Makhabeleni in KwaZulu-Natal. She had recently met another family who had the same issue: the grandmother had land which she wanted to regain but no longer had the paperwork for it.

She said that land was the “essence” of black people’s culture and heritage, central to their festivities, ceremonies, and spiritual rituals. Land was the “inheritance” of the “people of the soil,” and historical land dispossession was a deep and deeply rooted injustice which urgently needed redress.

The Expropriation Bill was centered in the Constitution. The Constitution was clear that the land belonged to all those who live in it, but that was not reflected in reality.

Agriculture and traditional medicine required access to and ownership of land and natural resources. Access to land would facilitate the development of medical and educational infrastructure. Tourism, arts, culture, and business would also benefit from the Bill.

Land ownership was “a dignity issue.” It allowed people to build community and strong family structures, and facilitated hope and patriotism. 

The COVID-19 pandemic had demonstrated the unsustainability of the status quo in land and housing. Social distancing, self-isolation, and quarantining were unfeasible. In addition, a strong immune system required a healthy diet, which in turn required land on which food could be grown. Land and campaigns for “self-sustainability” were needed.

Ms Olifant added that the Expropriation Bill would also promote gender equality. Although tribal authorities assisted with access to land, young and unmarried women did not have access to tribal lands.

Members did not have questions for Ms Olifant.

The Chairperson said that the Committee appreciated that a young woman had made a submission.

Submission by Transvaal Landbou Unie (TLU)
Mr Bennie van Zyl, General Manager, TLU, made a submission on behalf of TLU. Mr van Zyl said that TLU represented the agricultural sector, and that their central concern was economic growth. Economic growth, through free market mechanisms, was the only way to create opportunities for people. Farming was both a business and a “lifestyle.”

He said that the ruling African National Congress (ANC) had clung to “an obsolete ideology,” which had been proven worldwide to result in poverty. The rules of the economic game were simple and immovable. Prosperity had to be created through work. Entrepreneurs did business only if they were confident in the circumstances under which business was done. A democratic government had two major responsibilities: to protect the safety of all individuals, and to create a climate conducive to investor confidence. Investment was crucial for economic growth, and without growth, the state’s tax income would fall and its capacity to provide public services would be limited.

The ANC government had had “a policy of cadre deployment” according to which appointments were made on racial grounds, leading to the failure of once-thriving institutions. Corruption had almost become the norm. The ANC violated the Constitution’s provision that all citizens should be treated equally.

The Expropriation Bill, and constitutional amendments allowing expropriation without compensation, would deter investment. The government was “stealing the future” of South African people and their children and grandchildren. Its policies of transformation, black economic empowerment, and expropriation without compensation deterred investors and entrepreneurs. The government had made “a policy choice of poverty,” for all except its cadres.

Low taxes, low inflation, support for private ownership, competition, transparent monetary and fiscal policy, good infrastructure, and an economy driven by free market principles were required. Any piece of legislation should be checked against those principles. The important question should not be whether speakers or even Parliament accepted the Expropriation Bill – the question should be whether the markets would accept the Bill.

TLU’s recommendations to government included:
-Abandon the notion of expropriation without compensation;
-Allow expropriation for public purposes (for example, for infrastructure within the public interest) only with fair, market-based compensation; and
-Give state-owned land to emerging farmers.

Mr van Zyl said that suggestions and proposals for implementing such recommendations had been submitted through many forums since 2005. The government appeared to be putting the ANC’s interests ahead of the nation’s. However, if there was a sound policy environment, many civil society stakeholders would offer their assistance to the government.

Mr T Mashele (ANC) asked Mr van Zyl about his understanding of land dispossession in South Africa and his understanding of sustainable development.

Mr van Zyl replied that South Africa had a history of land dispossession, but every “nation” currently residing in the country had had its part in that history. Although many accusations about stolen land were made against white people, groups of black people who had travelled south to South Africa also had not bought the land that they appropriated. Accusations could be made against all groups; none had a faultless history. But if the focus was on making accusations, there would be no opportunity to build a better future. What could be done to create opportunities for all?

Mr van Zyl said that his central concern was the lack of economic growth and that his submission had focused on the economy. Economic growth was essential for sustainable development. To create opportunities for people, businesses had to make profits, jobs had to be created, and the economy had to be developed. The government needed tax income to provide infrastructure and training. Playing politics or racial politics would not provide people with opportunities. 

Ms S van Schalkwyk (ANC) asked for clarity about what organisation Mr van Zyl represented.

Mr van Zyl replied that TLU was an organised agricultural union representing commercial farmers. It had been established in 1987 as the Transvaal Agricultural Union.

Submission by Mr Cameron Dugmore on behalf of the official opposition in the Western Cape legislature
Mr Cameron Dugmore (ANC), Leader of the Opposition in the Western Cape Provincial Parliament, made a submission on behalf of the ANC in the Western Cape legislature. He said that his caucus welcomed the Expropriation Bill. It was “long overdue” and was much needed as a tool for comprehensive land redistribution and redress.

Mr Dugmore said that the legacy of colonial dispossession and apartheid spatial planning lived on, especially in the Western Cape. In the Western Cape, white South Africans – only 15.7% of the population, according to the 2011 census – owned 70.7% of urban land. Estimates suggested that less than 2% of agricultural land was owned by black (African, Coloured, and Indian) farmers. He requested that the Committee, as well as the Portfolio Committee Agriculture, Land Reform and Rural Development, ask the responsible Cabinet ministers to update various land audits. The information was needed to compile an accurate demographic picture of private land ownership in the Western Cape.

Mr Dugmore said that the caucus particularly welcomed the Bill’s definition of the public interest, especially its inclusion of land reform, redress, and equity. Because public interest was defined more broadly than mere public purposes, the Bill allowed not only “traditional expropriation” – facilitating the building of roads and infrastructure – but also transformative expropriation.

Mr Dugmore added that contrary to narratives involving chaos and “land grabs,” the Bill asserted the right to lawful administrative action and the right to have disputes resolved in a fair public hearing before a court or another independent and impartial tribunal. The Constitution supported the Bill.

Mr Dugmore then discussed the caucus’s recommendations regarding the Bill.

Reluctant expropriating authorities
The caucus was concerned that various organs of state at the provincial or local level might be reluctant to act as expropriating authorities. It therefore welcomed clause 3(2) of the Bill, which allowed the Minister of Public Works and Infrastructure to expropriate property on behalf of any organ of state, provided that the Minister was satisfied that the property was required for a public purpose or in the public interest. Municipalities should not be allowed to frustrate the Bill’s objectives.

The need for community involvement
Clause 8 of the Bill required the expropriating authority to serve a notice of expropriation on the owner of, and known holders of unregistered rights in, the property to be expropriated. Given the substantial community interest in issues of land restitution, land reform, and security of tenure, serious consideration should be given to the manner in which the broader community would be informed of the purpose intended for the expropriated land. The process should be transparent.

The need for a clear implementation plan
Mr Dugmore said that challenges were often faced in implementing legislation once it was adopted. He requested that the Committee insist the Department provide a detailed implementation plan with budgets.

Ms S Graham (DA) asked about clause 3(2) of the Bill, which allowed the Minister to expropriate property in cases where other expropriating authorities were reluctant to do so. Would that not usurp the separation of powers, or interfere with the spheres of government? It would allow one sphere of government – for example the Minister, at the national level – to override others. In her interpretation, that would violate the Constitution’s demand for cooperative governance, and the clause therefore constituted a flaw in the Bill.

Mr Dugmore replied that he regarded the Bill as transformational. It was not confined to narrow historical notions of expropriation, but rather was a tool to effect broader redistribution. Current laws gave certain powers of expropriation to different authorities, so that some national departments or other departments might not be regarded as expropriating authorities. Municipalities were regarded as expropriating authorities, but a given municipality might be against the redress injunction of the Constitution for its own reasons. Then if, for example, a national department needed to establish a hydroponics plant on a certain piece of land for food production and security, the municipality might decide not to proceed with expropriation. However, the new Bill allowed the national department to make their case to the Minister of Public Works and Infrastructure – even if it was not itself an expropriating authority – and the Minister could expropriate the land in her capacity as an expropriating authority. He thought that the issue would be tested in the courts, but his understanding was that the Minister could be approached as long as the expropriation met the public interest criterion.

Ms L Shabalala (ANC) said that she particularly appreciated that Mr Dugmore had emphasised constitutional issues. He had addressed the charge of land grabbing by emphasising the legal recourse and legal avenues provided for in the Bill. The Bill did not take away, but instead balanced between, constitutional rights. 

Submission by Mr Faiez Jacobs on behalf of the Cape Flats communities

Mr Faiez Jacobs (ANC), Member of Parliament for Greater Athlone, made a submission on behalf of the Cape Flats communities. He said that the history of land dispossession had “scarred” the communities of the Cape and left a legacy of “social dysfunctionality.” His own family had been dispossessed and had an unsettled land claim. The “national grievance” of land dispossession had to be urgently addressed, and the Expropriation Bill addressed it both in letter and spirit. The Bill was “a practical expression of the commitment that the ANC-led government [had] to the Black majority.”

Mr Jacobs said that the slow pace of land reform had compounded the effects of apartheid-era policies. Most people still awaited compensation for their land claims, and many regarded the amount of compensation as “an insult to one’s integrity.” Previous attempts to deal with expropriation under the “willing buyer, willing seller” model had wrongly assumed that “the patience of the poor and the dispossessed [would] be matched by the generosity of the rich and the privileged.” That model had led to overcompensation and, when land-owners were unwilling to sell at a reasonable price, had delayed land restitution and redistribution. The Bill attempted to address that issue by allowing the expropriating authority to decide how expropriation would be compensated, as per clauses 12(a) and 12(c). Mr Jacobs agreed that determining compensation was a function of the executive, not the courts. The process of agreeing on compensation had to be fair, transparent, and, most importantly, quick.

Mr Jacobs also discussed the current inadequacies in land and housing policy in Cape Town and elsewhere. Problems included:
-Corruption on the housing waiting list;
-Inhumane and illegal evictions, such as during the national lockdown;
-Growth in informal settlements, leading to land invasions and racial conflict; 
-Government was “unable and unwilling” to provide land to poor and working-class communities for settlement and development; and
-Government sold for commercial use land which could have been utilised for social housing, sometimes dispossessing established communities.

Mr Jacobs criticised the City of Cape Town and the Western Cape provincial government. Under the leadership of the Democratic Alliance (DA), both continued to implement apartheid spatial development policies, perpetuating spatial apartheid.

The issue of “land invasions” was important, and was a clear reflection of “the crisis of land dispossession.” Dispossessed African and Coloured communities were forced to occupy empty land because they could not afford to purchase it. The Bill had to provide sufficient protection for the holders of unregistered rights over property.

Mr Jacobs said that the Bill also had to include mechanisms which could hold municipalities and provincial government responsible for redistributing property and land. The Bill had to address inequality and poverty, and to restore dignity to the people of the Cape Flats and other communities.

Mr Jacobs also responded to organisations which had already made oral submissions. He said that the Banking Association of South Africa (BASA), which had made a submission on 24 March, should be “ashamed.” Banks had historically failed to create progressive financial instruments to advance land and property ownership for all South Africans, and had been responsible for Apartheid-era “red-lining.” He called on banks to play their part. He also called on agricultural organisations that had made submissions to “stop being selfish” and to show good will. Such organisations had not helped dispossessed communities or collaborated with government to implement redress. Instead, they sought to maintain the status quo and to “consolidate historical benefit.”

Ms Graham said that although Mr Jacobs purported to represent the Cape Flats communities, she could not find any record of such an organisation. From where did he derive his mandate to speak on behalf of those communities? How many people did he represent in that capacity? She was concerned that his submission represented an organisation which did not exist and that his mandate was therefore “fallacious.”

Mr Jacobs replied that he was a public representative and proudly represented the ANC, which had deployed him to Greater Athlone. In Athlone there was a broad community of residents of the Cape Flats, mainly working class and African people. He had not made his submission on his behalf alone – he represented those communities. As his submission mentioned, he was a product of those communities; his family had been dispossessed alongside them. He had a right to speak before the Committee and he maintained that right.

The Chairperson apologised to Mr Jacobs. The Committee respected that he was speaking on behalf of his community and could not doubt that he was doing so.

Submission by COSATU
Mr Matthew Parks, Parliamentary Coordinator, COSATU, presented the COSATU submission. He said that COSATU had 17 individual affiliate unions and members from all sectors of the economy. It had been closely involved in the Expropriation Bill, and also in the previous Expropriation Bill, which had been at the National Economic Development and Labour Council (NEDLAC) in 2013. COSATU strongly supported both the Expropriation Bill and the draft Constitution 18th Amendment Bill as “rational interventions.”

Mr Parks outlined the context of the Bill. Although the Constitution protected individual rights, it also obligated the state to address the legacies of colonialism and apartheid. Failure to ensure just and equitable access to land was unconstitutional. Land reform had not been advanced since 1994 – government had failed to significantly eradicate Apartheid and colonial land ownership patterns. The dangers of failing to address land reform were indicated by the Zimbabwean situation. Moreover, there was a need to repeal the Expropriation Act of 1975, which had been passed during the height of apartheid oppression, and replace it with legislation that reflected the values of the 1996 Constitution.

Mr Parks said that COSATU did not share the opinion that the draft Constitution 18th Amendment Bill was superfluous because the Constitution already provided for nil compensation. It was preferable to provide clarity and surety. That Bill, in combination with section 25 of the Constitution, provided clear constitutional guidance for the Expropriation Bill.

COSATU supported the administrative processes outlined by the Expropriation Bill. This was critical for COSATU because its members were affected when their homes were expropriated for government infrastructure projects. The Bill provided:
-Clear checks and balances to prevent abuses by government;
-Access to legal recourse for aggrieved parties;
-Clear and limited time frames, to prevent undue delays; and
-Urgent expropriation mechanisms and safeguards for emergencies.

The transformational provisions of the Bill acknowledged:
-The need to provide redress for persons who had lost property due to apartheid and colonial rule;
-The need to ensure equitable access to all natural resources, including mineral resources, water, and land;
-The recognition of unregistered rights; and
-The need to provide for persons and communities whose land tenure remained insecure due to apartheid and colonial laws and practices.

The Bill was very clear on how compensation was to be determined and which criteria were to be considered: it was not “a blank cheque.” It was also helpful that the Office of the Valuer-General had been established to provide fair and neutral valuations. Under the Bill, compensation would not be based on market value alone, but would also reflect other important factors, such as those involving the property’s history.

COSATU also supported the Bill’s position that there were instances in which nil compensation was warranted, a view COSATU had itself advanced in a 2015 submission to Parliament. The Bill’s provisions were in line with the draft Constitution 18th Amendment Bill. Moreover, exorbitant compensation demands had often delayed land reform in the past, given inadequate state budget. Compensation might also be immoral in some cases, since during apartheid most properties had been expropriated without compensation.   

In summary, the Expropriation Bill was in line with international norms; it protected the rights of workers from arbitrary abuses; and it allowed workers and the public to hold the state legally accountable for land reform. COSATU was confident that the Bill was constitutional, and would welcome the opportunity to see that confirmed in the Constitutional Court. It was a rational, fair, and equitable “compromise.” Opposition to the Bill was of two kinds: either “reactionary” right-wing opposition, or populist opposition. In both cases, it was “hysterical” and “devoid of facts,” not grounded in the content of the Bill.

Mr Parks said that the Expropriation Bill should be passed alongside other related pieces of land reform legislation, which had been delayed. Apart from the draft Constitution 18th Amendment Bill, the Land Claims Court Bill and Preservation and Development of Agricultural Land Bill would hopefully be tabled soon. The Regulation of Land Holding Bill and Communal Land Tenure Agreement Bill should be tabled. The Restitution of Land Rights Amendment Bill, which Parliament had failed to pass, had not been revived. Moreover, although the Extension of Security of Tenure Amendment Act had been passed, its provisions protecting farmworkers from unfair eviction had not been implemented. In addition, if government was to support emerging black farmers, it had to provide access not only to land but also to other resources like finances, training, materials, retail market support, and affordable insurance.

Ms van Schalkwyk noted that COSATU had 17 affiliate unions. She asked how many individuals were represented by those affiliates and by COSATU at large as a national federation.

Mr Parks replied that, outside of the Zionist Christian Church of South Africa, COSATU was the largest organisation in the country. It had about 1.7 million members. Beyond that, members had dependents – a mother who worked as a nurse had two or three dependents, and many people were supporting increasing numbers of relatives during the current job losses. The immediate family of COSATU members came to about 12 million people. Members came from all sectors of the economy – members included, for example, parliamentary staff, farm workers, police and prison officers, and teachers. They were also of all races and genders. COSATU was extremely diverse. For example, its clothing and textiles union had about 120 000 members who were mostly African and Coloured women, many of them from the Cape Flats but also from other provinces.

Mr Parks said that because of its diversity, COSATU looked for pragmatic balances and compromises. Some of its members – teachers, for example – owned houses and wanted to know that their properties were secured. But COSATU also represented about three unions which organised farmworkers and food workers, that wanted to know that they would have the chance to own agricultural land and use their skills in ploughing land. They wanted small holdings so that they could grow food for their families and eventually maybe sell food in the town market. COSATU members were “desperate” for land, for housing in cities, and for farming in rural areas, but they also wanted checks and balances to prevent abuses by government. COSATU could assure its members that the Bill answered all those demands. In addition, its members were very sensitive to economic and investment issues – many of them worked in banking, mining, and manufacturing. Those members were assured that the Bill provided certainty about expropriation procedures, setting out parties’ rights and the procedures and checks and balances involved. COSATU thought that the Bill was a “win-win compromise” that would benefit all affected parties. The opportunity must be seized, because going down the same route as Zimbabwe would not benefit anyone.

Submission by Agricultural Business Chamber (AGBIZ) and Business Unity South Africa (BUSA)
Mr Olivier Serrão, Director: Economic and Trade, BUSA, Business Unity South Africa (BUSA), and Mr Theo Boshoff, Manager: Legal Intelligence, Agricultural Business Chamber (AGBIZ), made a joint submission on behalf of BUSA and AGBIZ.

Mr Serrão opened the presentation by providing an overview of BUSA, a national confederation of business organisations. BUSA was the official representative of organised business at NEDLAC and had participated in an extensive process at NEDLAC with a delegation comprising several of its members, including AGBIZ. The submission would rehearse the position that BUSA had articulated at NEDLAC, but Mr Serrão nevertheless urged Members to study the NEDLAC report.

Mr Boshoff provided an overview of AGBIZ, an association of agri-businesses and a member of BUSA. He said that AGBIZ and BUSA had a long history with the Bill and had been involved with it since 2013. They agreed with about 90% of the Bill and recognised the need for such a bill: as others had said, the status quo, in which stakeholders relied on the 1975 Act, was inadequate. However, they had certain comments and recommendations.

Both organisations supported transformation and land reform, but the Bill went beyond expropriation for land reform purposes.

Potential omission: Lapse of purpose
Mr Boshoff said that the Bill did not cover situations in which, after a certain period, the purpose for which a property had been expropriated fell away or lapsed. It was not clear whether the expropriation, or the compensation amount, could be challenged in such a situation, although clause 23(2) stipulated that expropriation could not be withdrawn after three months if the land was registered or compensation had been paid. This omission could lead to litigation when such situations arose.

It would not be feasible to reverse the expropriation in such a situation. Therefore, the organisations recommended that the Bill should allow a time-bound right of refusal in favour of the owner, but with the requirement that the owner must pay a price equal to the full amount of compensation paid.

Definition of expropriation
Generally and internationally, expropriation was regarded legally as a form of deprivation extreme enough to warrant compensation. However, the Bill’s definition of expropriation was limited to the “acquisition” of property by the state. This meant that, for example, communal occupiers on state land would not be entitled to compensation if they were evicted; because the state already owned the land, there was no acquisition and thus no expropriation. However, such people’s rights were still severely limited or extinguished by the state, and they might be entitled to compensation.  

To account for this, the organisations recommended that the definition of expropriation be expanded to include compulsory acquisition of rights in property, and deprivations of ownership or rights in property that were materially equivalent to compulsory acquisition.

Nil compensation
The organisations opposed expropriation with nil compensation as provided for by clause 12(3). Land reform could be achieved without resorting to nil compensation. Although, as other submissions had noted, there had been a history of overcompensation, it was not true that paying compensation made land reform too expensive. It was also unclear why certain categories of properties had been singled out as qualifying for nil compensation; this could have unintended consequences. Mr Boshoff also made specific comments on the various circumstances singled out by clause 12(3). 

The organisations were also concerned about the impact which the nil compensation provision might have on investor confidence and finance. Communications campaigns might assist, as would changing the wording of the Bill. 

Other recommendations
The organisations were concerned about clause 2(2) of the Bill, which required that administrative authorities must consent to the expropriation of land from state entities. Mr Boshoff said that this was at odds with the notion of expropriation as non-consensual by definition, and it resulted in a double standard, since consent was not required for the expropriation of private land.

The organisations recommended that clause 3(2) be amended to provide that the Minister may expropriate property if convinced that it was required for a public purpose. Currently, the Bill provided that the Minister must expropriate property in such a situation, which limited the Minister’s discretion to refuse to expropriate on other grounds, such as budgetary constraints.

The organisations recommended that the procedure in clause 7 be amended to recognise the distinction between the value of a property and the compensation owed to its owner. Clause 7(4)(a) required that, upon receiving a notice of intention to expropriate, the onus was on the property owner to submit a claim for compensation. However, the owner should not be expected to estimate the compensation amount. Instead, the owner should submit details about the value of the property, which the expropriating authority should take into account, alongside other factors, in making an offer of compensation.

The organisations recommended that clause 17 be amended. There should not be a catch-all phrase permitting a delay in payment of compensation. It should be permissible only under certain circumstances and, in line with section 25 of the Constitution, only where it was just and equitable.

Finally, the organisations recommended that the Bill be amended such that non-compliance with procedure would not invalidate a step of the process in cases where non-compliance had been condoned by affected parties or by a court.

Mr Boshoff said that clause 29 of the Bill was currently unclear about who was to decide whether there was prejudice or whether non-compliance was material, such that non-compliance should or should not be condoned. 

The Chairperson said that BUSA and AGBIZ had already had the opportunity to discuss the Bill at length in NEDLAC, before it had been taken to Cabinet. Given that, why were they raising their points again before the Committee? Was it because their recommendations fell off when discussed in Cabinet? Or did the organisations want to ensure that their recommendations were also aired on the Committee platform? They had already been given a platform.

Mr Boshoff replied that the organisations had already had access to the NEDLAC platform, and many of the same points had been raised there. The point about the definition of exploitation, for example, had been raised at NEDLAC; they repeated it before the Committee because they had not reached agreement at NEDLAC. Other recommendations, for example those regarding clauses 12 and 17, had only come to the organisations’ attention after the NEDLAC process had concluded.

The issue of the potential omission regarding lapsed purposes was an exception. It had been raised at NEDLAC, but the terms of reference had only permitted delegates to engage on the proposed text, not on new proposals or proposed insertions. Therefore, it had been agreed at NEDLAC that BUSA and AGBIZ should raise the issue before the Committee instead. 

Submission by National House of Traditional Leaders (NHTL)
Mr Inkosi Sipho Mahlangu, Chairperson, National House of Traditional Leaders (NHTL), made a submission on behalf of NHTL. He said that NHTL was a statutory body representing 882 traditional communities throughout the country, encompassing approximately 10 000 villages and just over one third of the population. NHTL dealt with matters relating to traditional leadership and customary law, and acted as the voice of traditional communities. NHTL broadly supported the Expropriation Bill but recommended various amendments.

Definition of property 
Mr Mahlangu said that property rights were important democratic rights, enshrined in the Constitution. If the Bill was passed in its current form, traditional land was likely to be expropriated. Moreover, the land of traditional communities with traditional land use rights could be expropriated without redress.

The Bill referred to the Constitution’s definition of property, so that not only land but also mining rights, moveable property, and unregistered customary and other land use rights could be expropriated. The Minister of Public Works and Infrastructure would be empowered to expropriate any property, anywhere – including houses and cars – and approve the compensation amount. NHTL recommended that the Bill should define property more clearly. Furthermore, the Bill should clearly state that communal land – meaning land owned by the community under traditional leadership – was exempted from expropriation. Expropriation of third party rights, including unregistered rights, must comply with the Constitution.

Determination of compensation
NHTL believed that the determination of just and equitable compensation should take into account how the property was acquired by its current owners. If that acquisition had been unlawful and had involved dispossession, it was not clear why the land’s current market value should be relevant to the determination of compensation, as implied by clause 12(1)(c). In such cases, it was not clear why compensation was required. Dispossession had been very painful for those affected by it.

Moreover, the determination of compensation should bear in mind that some individuals had been considerably enriched by their access to land and unfettered use of natural resources. It should account for the property benefits enjoyed over time by the owner, as well as his or her “current standing.” Therefore, NHTL recommended adding to clause 7(4)(a) that the property owner, in submitting a claim for compensation, should additionally be required to indicate “whether he or she benefitted from the property, for how long, and in what monetary terms.”

NHTL recommended that historically disadvantaged individuals should be considered for an equitable share of compensation if they were currently employed on or dependent on the land to be expropriated. That would include, for example, farmworkers. 

Other recommendations
NTHL recommended amending the Bill such that only the Minister would have the power to expropriate property. If municipalities and other organs of state were given expropriating powers, they would use them to further their own interests. Government officials sometimes had interests that conflicted with the public interest.

Regarding clause 3, Mr Mahlangu said that traditional councils and leadership structures were seriously underfunded organs of state, and some could not afford to refund the Minister for costs incurred during expropriation on their behalf, as required by the Bill. NHTL requested a dispensation exempting traditional councils that could not afford to pay, especially since any expropriation effected on their behalf would be done for the benefit of the people. NHTL was working on a programme called Invest Rural which required NHTL to “decongest” some of the councils.

Clause 5(2)(a) allowed that, in cases of land expropriation, the expropriating authority could authorise any person to enter the property at any reasonable time. NHTL held that entering the property could be dangerous to the official performing that duty, and the official should be given protection of some sort.

Regarding clause 5(5)(a), NHTL recommended that the period provided for holders of unregistered rights to submit information should be extended from 20 days to up to three months.

Clause 7(7)(b) allowed for the expropriating authority to decide not to proceed with expropriation, but NHTL wondered why that provision was necessary. Even if there was no longer an immediate need for a given property, expropriation should be seen as a tool for transformation and redress. The property should be expropriated and held by the government or Minister, and could even be leased back to its previous owner.

NHTL was concerned that the Bill gave the property owner only 60 days to sue for more compensation; after that period, they would be deemed to have accepted the offer. Thus people who did not have the means to sue within that period would have no legal recourse. This was contrary to the rights outlined in section 25(2)(b) of the Constitution.

Regarding clause 12(2)(d), NHTL recommended that there should be a mechanism for determining and recording the status of properties upfront, so that owners did not have an incentive to be willfully negligent in maintaining the property or to intentionally appreciate the property in order to claim more compensation.

Finally, NHTL was concerned that courts would be burdened by expropriation processes, given the role for courts outlined in the bill. That could result in the process being dragged out unnecessarily. NHTL recommended that the Office of the Chief Justice should be approached and asked to dedicate courts for expropriation processes.

Ms Graham asked for clarification about NHTL’s request for an exemption on communal land. The purpose of the Bill was not just land reform. It also empowered government to expropriate land for public purposes – for example, to build a road, hospital, or school. If all communal land was to be exempted from expropriation, how did NHTL propose the government should approach the utilisation of communal land for public purposes?

Mr Mahlangu said that land held by traditional leaders was in the hands of the Department of Agriculture, Land Reform and Rural Development (DALRRD), so it was already in the hands of the state. All that was required – and what NHTL always requested – was negotiation between government and the traditional council. NHTL did not oppose development on communal land, but it needed transparency, discussion, and agreement. It rarely declined such requests from government, provided that the traditional leadership sector was properly consulted.

Submission by the Minerals Council
Ms Ursula Brown, Head: Legal, Minerals Council, made a submission on behalf of the Council. She said that the Council was a private industry advocacy body, representing more than 70 miners and three associations that collectively represented more than 200 entities. The Council and its members acknowledged the need for a sustainable and effective land reform programme, especially given the country’s history of land dispossession. However, the processes adopted to that end had to be clear. Ms Brown said that the Council’s submission would focus on technical issues that could make the Bill vulnerable to protracted legal and constitutional challenges.

Timing and prematurity of the Bill
Ms Brown said that the Bill had been tabled in Parliament before the proposed amendments to section 25 of the Constitution were finalised. Yet the preamble of the Bill relied on section 25 of the Constitution, which seemed “misplaced,” and the long title of the Bill referred specifically to expropriation with nil compensation, which seemed premature. Various provisions in the Bill would need to be revised after the proposed constitutional amendments were enacted.

Clause 12: Determination of compensation
Firstly, the Council recommended that clause 12(1) of the Bill should be amended to refer not only to the amount of compensation but also to “the time and manner of payment.” This would align the clause with the provisions of sections 25(2)(b) and 25(3) of the Constitution.

Secondly, chapters 5 and 6 of the Bill allowed expropriating authorities the power to determine the time and manner of payment of compensation. This contravened section 25(2)(b) of the Constitution, which provided that the time and manner of payment must be decided or approved by a court if it was not agreed to by those affected.  

Finally, the Bill’s nil compensation provision was also unconstitutional. Section 25 of the Constitution made no reference to nil compensation, so clauses 12(3) and 12(4) of the Bill were wider than the founding constitutional provisions. By tabling clause 12 of the Bill, the Minister was “asking Parliament to invade what in the Constitution is the preserve of the judiciary.” This offended against the doctrine of separation of powers, part of the rule of law principle expressed in section 1(c) of the Constitution.

Clause 12(3) and 12(4)
Ms Brown said that it was not clear why the circumstances listed in clauses 12(3) and 12(4) had been singled out, given that it was not a closed list. It was not clear what weight should be given to the factors identified in those clauses. She also made specific comments on the specific provisions of clause 12(3).

In addition, clause 12(4) was in direct conflict with section 2(2) of the Land Reform (Labour Tenants) Act, which envisaged just and equitable compensation for the right holder. The same clause was unconstitutional – it provided for an arbitrator to determine the amount of compensation, whereas section 25(2)(b) of the Constitution permitted only the courts to do so.

Entitlement of landowner compensation
Clauses 17(3) and 21(8) of the Bill created a situation where an expropriated owner or holder might lose the right to possession of land long before compensation was paid, particularly if the amount of compensation was subject to a lengthy litigation process. This was in direct conflict with section 25(2)(b) of the Constitution, which expressly provided that property could only be expropriated subject to compensation. The Council recommended the deletion of both clauses.

Clause 2: State-owned corporations’ ability to veto acts of expropriation
Clause 2(2) provided that the property of a state-owned corporation or state-owned entity could not be expropriated without the consent of its executive authority. Thus the Bill appeared to afford such corporations and entities the ability to veto expropriations, without affording a similar right to any private owners or occupiers of land. To that extent, the provision violated the doctrine of equality, particularly section 9(1) of the Constitution, and the requirement that administrative action must be reasonable, as per section 33(1) of the Constitution.

Definitional ambiguities
The Bill did not adequately define the terms “land,” “public interest,” or “unregistered right.”

The term “land” was critical to the Bill and especially to the nil compensation provision of section 12(3), but was not defined. It was unclear whether the term was intended to include rights in land.

The Council was concerned that the Bill’s definition of “public interest” was unconstitutional, because it conflated sections 25(4)(a) and 25(8) of the Constitution and omitted the proviso in section 25(8) that referred to section 36(1) of the Constitution.

Finally, the term “unregistered right” was defined such that unregistered rights granted in terms of the Mineral and Petroleum Resources Development Act (MPRDA) fell within “an unregulated grey area.” Therefore, the holder of such a right did not enjoy the protections afforded under the Bill until the right was registered. The Council recommended amending clause 9(1)(d) to address this.

Ms Brown said that the Council had identified some other issues which had been set out in its written submission to the Committee.

Mr Mathebula acknowledged the Minerals Council’s concern that the Exploitation Bill did not safeguard property owners’ constitutional rights. However, it was in line with the proposed constitutional amendments. The Bill did protect people’s rights as provided for in particular by sections 9, 10, and 36 of the Constitution. He asked Ms Brown whether those affected by the law would not have any recourse to challenge the government’s rights to their property if they felt that expropriation had violated their own rights.

Ms Brown replied that such people would have recourse to the courts. However, the Council’s position was that potential issues should be addressed before they got to the courts. When a piece of legislation was taken on review and got involved in protracted legal processes, which could take a couple years to resolve, the legislation’s implementation could be significantly delayed. The Council’s recommendation was to address the issues so that when the law was enacted there would be clarity and certainty, and the law could be used to achieve its objectives.

The Chairperson asked whether the Minerals Council had not previously had the opportunity in NEDLAC to raise the issues mentioned in its submission.

Ms Brown replied that although the Minerals Council belonged to the BUSA constituency in NEDLAC, it had not participated in the processes surrounding the Bill, for reasons that she would not disclose. As Mr Boshoff said, BUSA and its members had been involved with the Bill since 2013, and the processes had been long ongoing by the time Ms Brown had joined the Council. The Council’s abstention from the NEDLAC process had been an “omission,” so it had thought it appropriate to raise its concerns with the Committee.

Submission by ANCWL
Adv Sandra Makoasha, Dr Khanyisile Litchfield-Tshabalala, and Adv Nomazotsho Memani made a submission on behalf of the ANC Women’s League (ANCWL). Adv Memani said that the ANCWL had consulted all women in South Africa, of all races, on the Expropriation Bill. Its voice was “the voice of women” and must be acknowledged. ANCWL supported the Bill, but recommended certain amendments in line with its written submission.

Adv Makoasha said that the purpose of the Bill should be to provide for the expropriation and reparation of land and property for the best interests of citizens. She echoed previous speakers on the need to redress historical dispossession. She said that some previous speakers had “spoken from a point of privilege,” as part of the property- and land-owning classes, and had underestimated the spiritual and cultural importance of land and property for African people. It was interesting that those who worked the land did not own it; those who needed the land did not have it; and those who wanted to keep the land had vast empty lands that were not used to benefit the majority of South Africans. The Bill would support vulnerable communities in the country, the most vulnerable of whom were poor black women. She urged stakeholders to work to address perceived deficiencies in the Bill rather than denounce it.

Chapter 5: Compensation for expropriation

Dr Litchfield-Tshabalala said that the ANCWL opposed paying compensation for the expropriation of land that had been acquired through dispossession – through an unprovoked act of aggression, external invasion, colonisation, or apartheid legislation. The current Bill based compensation on the land’s market value, without considering that in many cases the land had initially belonged to communities who had suffered not only economic losses but also spiritual losses and the loss of self-governance when they were dispossessed. There should be no compensation for “descendants of settlers.” Even if the current property owners had not been perpetrators of the wrong, they were beneficiaries.

ANCWL recommended completely replacing chapter 5 with provisions regarding reparations. Reparations should be paid to those formerly dispossessed. Reparations should be worked out at the governmental level, using established international standards and in wide consultation with Africans. There were international examples that could be followed.

ANCWL recommended disbursing reparations and redistributing land largely by clan and ethnicity, and in rare cases to individuals. The reparations and redistributed land could then be used in cooperative and community business ventures for sustainable development. African women should be the primary beneficiaries, especially in rural and communal communities, because in pre-colonial times women had been the agriculturalists and had managed food, trade, and markets.

Chapter 8: Withdrawal of expropriation

Dr Litchfield-Tshabalala said that ANCWL found chapter 8 of the Bill “confusing” and concerning. Those who owned the land lacked “remorse,” and asked to be paid for land that they “stole.”

ANCWL strongly opposed the inclusion of provisions allowing the withdrawal of expropriation. It was “illogical” that, after the expropriation process had been followed, the expropriating authority might decide that it was no longer in the public interest to expropriate a given property. ANCWL recommended that the chapter should become a clause under chapter 7, specifically addressing issues arising as a result of urgent expropriation. If the urgent expropriation of a specific property was no longer in the public interest, there should be the option to withdraw the expropriation, but it should be reviewed on a case-by-case basis.

Clause 8: Notice of expropriation

Adv Memani said that clause 8 created “uncertainty around ownership, possession, and transfer.” Disputes had to be referred to the courts for determination, but it would ultimately lead to expropriation matters being delayed in court without the owners, occupiers, or right holders having been compensated. ANCWL suggested that the Minister’s regulations could provide clear time periods for cases involving expropriation. Alternatively, the Minister could give the Land Court to have exclusive jurisdiction over matters under the Bill.

Other recommendations

Other recommendations made by the ANCWL included:
-To define “landlessness,” “homelessness,” “reparations,” and “mediation committee” in chapter 1;
-To outline the powers of the Minister of DALRRD and the Minister of Human Settlement in chapter 2;
-To publish the outcome of investigations conducted under clause 5(1) for transparency and to enable ANCWL to support women in claiming their rights as registered or unregistered owners;
-Regarding clause 5(4)(a), to require that documents are validated, especially to prevent women from being denied their property rights;
-To require that the notice of intention to expropriate, provided for in clause 7, would not only be served but would also be explained in the language of the recipient;
-Regarding clause 9, to require that records of expropriation were kept at the Deeds Registry;
-To adjust the time periods in chapter 6 so that matters brought before court or mediation could be resolved quickly; and
-To reduce the 30-day period stipulated in chapter 7 to a 15 day period.

ANCWL had believed that the Bill should have been located in DALRRD, but the current process was sufficient.

Ms Siwisa asked for clarification about ANCWL’s position on compensation. The submission had initially opposed compensation but later had seemed to condone it. She also asked what should happen when it was discovered that land had been illegally occupied. Should its occupants receive compensation if the land was expropriated? 

Dr Litchfield-Tshabalala replied that ANCWL opposed compensation for the expropriation of land that had been dispossessed by the “settler population and their descendants.” Those groups had benefitted from the land for over 400 years. However, ANCWL supported expropriation with compensation in cases where the state expropriated land “from African hands” for the use of the community.

The Chairperson said that the Committee appreciated that women were “speaking up” on land issues, given how they had been treated in the past.

Closing remarks

The Chairperson told each speaker that their submissions would be compiled alongside the others received by the Committee. At a later date, the Committee would deal with all oral and written submissions and all information collected at the public hearings.

Public hearings would start on 8 April in Limpopo and would be held in person. The Committee wanted to reach people in rural areas who did not have access to technology. However, COVID-19 health protocols would be observed and only 100 people would be allowed inside the hall. She invited those who had not made oral submissions to attend the public hearings and present their views on the Bill. The hearings would be advertised in the national media and on the parliamentary platform.

The Chairperson thanked the speakers for their input. She said that they had helped the Committee to become aware that there was a large range of views on the Expropriation Bill. There were many issues that people from diverse communities were raising. The Committee promised to consider the submissions. It appreciated that some speakers had gone through the Bill section-by-section and made detailed recommendations. The Committee would come up with something that it believed would assist many South Africans.

It had been indicated, including in that day’s submissions, that many South Africans wanted the Expropriation Bill to pass. The country could not continue to rely on the Expropriation Act that predated the Constitution and that was designed to serve the interests of the few who governed at the time. The “courts of humanity” had ruled that apartheid was inhumane and wrong, so its laws had to be repealed and replaced by laws which were guided by the Constitution.

The meeting was adjourned.

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