Documents handed out: Black First Land First + Western Cape Government [awaited]
The Committee held the second phase of public hearings on the Expropriation Bill. The Bill was welcomed by the Land Accountability Research Centre (LARC) UCT, Law Trust Chair in Social Justice (CSJ) , South African Research Chair in Property Law (SARCPL), the GOOD party, South African Institute of Valuers (SAIV), and the ANC Gabby Shapiro branch. It was rejected in its current form by the National Employers’ Association of South Africa (NEASA), Black First Land First (BLF), Centre for Development and Enterprise (CDE), Agri Western Cape (AWC), Afrikanerbond, Western Cape (WC) Provincial Government and the Economic Freedom Fighters (EFF).
LARC, the CSJ of Stellenbosch University and the GOOD party pointed out that the 2020 Expropriation Bill did not introduce expropriation without compensation into South African law, as it was already provided for in the Constitution. Therefore, it was not necessary to amend Section 25, because a proper interpretation of the Constitution already allowed for the expropriation of land without compensation.
LARC proposed that the Bill be strengthened to address two concerns: reducing the excessive requirements and procedures that inhibit the state from effectively and efficiently achieving its constitutional mandate of giving effect to land and related reform; and its failure to recognise the power and eligibility imbalances between registered owners and holders of unregistered rights – it especially did not take into account the realities faced by the holders of unregistered rights to land, who were the poorest and most vulnerable. A Member asked what should happen to the Bill as it stood, and the LARC responded that the Bill should be amended to remove the duplicated processes that the expropriating authority needed to undergo.
The CSJ said the Bill had the potential to contribute to rights protection for ordinary people whose families were negatively affected by the corrupt abuse of power in the expropriation process. It could also contribute to an accelerated pace for land reform that was constitutionally attuned, land restitution and sustainable development. Areas of concern in the bill included the expensively long and adversarial process of expropriation; the need for upfront capital to realise the rights the bill would provide for; the accommodation of group rights, particularly communal rights; the need for clearer compensation parameters; and the potentially negative impact on investment and food security.
The GOOD party stated that the misinformation and fear-mongering campaigns around the bill had been divisive and undermined the legitimacy of petitions and public comment submissions. It clarified some of the claims against the bill, which were largely based on misinformation, such as the claim that the bill “allows ANC officials to seize anything you own.”
The SARCPL and SAIV and ANC proposed strengthening the bill by amending its weaknesses. The organisation proposed technical amendments to the definitions in chapter 1. Both the SAIV and the SARCPL proposed clarifying amendments and technical inputs for clauses across different sections of the Bill.
NEASA submitted that the legislation was ill-conceived and should be withdrawn. It rejected the Bill because of the negative effect it would have on business. It would demolish what remained of the post-COVID economy; drive away any possible investors, local and international; break down what was left of the trust in government; and flare up social tensions in South Africa.
The AWC and Afrikanerbond shared similar sentiments by highlighting that current landowners should not be required to bear a disproportionate burden of the imperative for land reform in the public interest. The AWC was concerned at the lack of penalties for non-compliance with time limits by expropriating authorities.
One of the concerns pointed out by the Afrikanerbond was that the Bill did not place an obligation on the state to explain or demonstrate how expropriation was justified in the public interest or for public purpose. It would also have negative tax implications. Both the AWC and the WC provincial government said that there needed to be policy certainty and state accountability in order for successful land reform. The WC government added that the criteria for land reform should be determined by the quantity of livelihoods created and supported, and the economic value created, instead of the size of land transferred. Furthermore, the Bill was vague and compromised procedural fairness, while section 12 sub-section 3C incentivised land invasions, which were happening across South Africa.
The BLF rejected the Bill, as it did nothing to address the uneven ownership of land in the country, with the majority of the land being owned by a white minority. As it stood., the bill had failed four important tests: it did not end the ‘willing buyer, willing seller’ practice; it did not ensure that land would be in the hands of the black and landless majority; it did not resolve the meaning and criteria for just and equitable compensation; and it did not set targets for the constitutional imperative of land redistribution. The BLF called for a land expropriation bill that gives effect to land expropriation without compensation as a means for redress, and for the establishment of a new Department of Land Redistribution, whose sole mandate would be the redistribution of land to the landless in the country.
The EFF shared similar sentiments, and pointed out that the bill did not take into account the need for a deeper level of transformation, and would not lead to broad-based redistribution of land. It was a continuation of the sell-out arrangement by the ruling party, and offered no significant departure from the way things have always been. It provided for only limited instances in which expropriation could happen without paying compensation, and these were for land that would be useless to the vast majority of South African people.
The CDE said that Section 25 of the Constitution did not need to be amended, and expropriation should be fair, legal and rare. The Expropriation Bill without the amendment of Section 25 was a workable balance that needed strengthening by limiting nil compensation to land reform only and in exceptional circumstances; not factoring in budget availability when considering what was “just and equitable”; compensating expropriated owners for out of pocket costs; and limiting the Act to immovable property. If Section 25 was amended, then the Bill would lead to an enormous risk of officials who would over-use and abuse the law.
The Chairperson welcomed everyone in attendance.
The Committee Secretariat noted an apology from Ms M Hicklin (DA).
Oral Submissions on Expropriation Bill
Land Accountability Research Centre (LARC) UCT
Ms Zenande Booi, Lead Land Researcher, said that it was not necessary to amend any provisions in the Constitution to allow for expropriation without compensation, because a proper interpretation of the Constitution already allows for the expropriation of land without compensation. Instead, what was needed was empowering legislation that would articulate the parameters of the state’s power to expropriate within the bounds of the Constitution. On this note, the LARC welcomed the Bill.
However, there were two broad areas of concern. Firstly, the Bill, in its current form, fails to adequately articulate the extensive pro-active power to expropriate for a public purpose or in the public interest that the Constitution already gives and envisions for the state. Instead it imposes excessive requirements and procedures that do not enable the state to effectively and efficiently achieve its wide constitutional mandate of giving effect to land and related reform. Secondly, the Bill does not recognise the tensions and imbalances of power and eligibility that exist between registered owners and holders of unregistered rights. It also fails to take into account the realities faced by the holders of unregistered rights to land, who tend to be the poorest and most vulnerable people in South Africa.
This Expropriation Bill makes expropriation unnecessarily difficult by imposing requirements such as negotiating with and obtaining the consent of an owner before a decision is made about whether expropriation is appropriate, that could significantly delay or invalidate the process. LARC proposes that all provisions that require the expropriating authority (EA) to obtain the consent of the owner before being able to access the property in question or conduct investigative activities necessary to ascertain the suitability of the property for expropriation, be revised. Overlapping procedures need to be removed to ensure the process is fair and streamlined.
To address the other shortcomings of the bill, LARC proposed that a rights enquiry of all occupants of the land, targeted by the EA, be a mandatory requirement of the Bill. The Bill should also explicitly recognise that unregistered rights present in varying ways, and provide for mechanisms to ensure that holders of rights that are not formally recorded are not prejudiced in the expropriation process. In summary, the Bill should be simplified and re-organised into four discreet stages.
Ms M Siwisa (EFF) asked what should happen to the Bill right now, considering the shortcomings that were highlighted.
Ms Booi responded that the easiest way to address the shortcomings was to remove the duplicated processes that the expropriating authority needs to undergo. The current structuring of the Bill did not empower the expropriating authority to properly do its job. The process needed to be clear and streamlined.
National Employers’ Association of South Africa (NEASA)
Mr Jaco Swart, National Manager and Collective Bargaining Coordinator, said NEASA opposed the implementation of the Bill for various reasons, one of which was the effect the Bill would have on business, in both their capacity as consumers and employers of this country. NEASA strongly believed that fair and successful land reform required a balance between existing land rights, food security and prosperous business on the one hand, and historical redress and restitution on the other.
The Expropriation without compensation (EWC) Bill threatened the core belief of business owners in their ability to thrive in a free market dispensation in South Africa. Without this belief, the motivation of entrepreneurs to start and run their own businesses would vanish. The EWC Bill destroyed any safety measures the private sector had against an attack on property rights by the government. Government’s aim with the EWC Bill, to “share the wealth”, would not be accomplished by the EWC -- EWC was a method of socialist redistribution which had, globally, failed spectacularly. EWC had failed in every jurisdiction where it was introduced. It had failed in Burundi, Ghana, Zimbabwe, India, Kenya, Nigeria and Venezuela - to name but a few. There was nothing intrinsically unique about South Africa’s position with regards to the implementation of its laws on EWC. It would inevitably fail, as it had failed in all other countries who chose this path. South Africa would be no exception. EWC would affect every single business, whether big or small. It would demolish what remained of the post- Covid economy; drive away any possible investors, local and international; break down what was left of the trust in government; and flair up social tensions in South Africa.
NEASA recommended that any portion of this Bill which provides for the expropriation of property with nil compensation be removed from the Bill. NEASA submitted that the legislation was ill-conceived and should be withdrawn.
Law Trust Chair in Social Justice (CSJ)
Prof Thuli Madonsela, Law Trust Chair in Social Justice (CSJ), Stellenbosch University, said the initiative was welcomed, as the Bill redefined the parameters for expropriation and did not introduce expropriation, which had already been happening in the country for many years. The Bill was not about land reform and restitution. However, it had the potential to contribute to rights protection for ordinary people like the Dlamini family and the Peter sisters, whose families were negatively affected by the corrupt abuse of power in the expropriation process. It could also contribute to an accelerated pace of land reform that was constitutionally attuned, land restitution and sustainable development.
Prof Madonsela highlighted areas in the Bill that could undermine social justice, democratic governance and equal enjoyment of land and related property rights for disadvantaged groups. Areas of concern in the bill included the expensively long and adversarial process of expropriation; the need for upfront capital to realise the rights the Bill would provide for – which she illustrated using the case studies of the Dlamini and Peters families; the accommodation of group rights, particularly communal rights; and the need for clearer compensation parameters and the potential negative impact on investment and food security.
The cost of compensation since 1994 had been over R60 billion, which was too expensive. CSJ recommended that a holistic policy framework be adopted -- one which limits speculation about the intention of expropriation processes, the target beneficiaries and the anticipated impact. It also recommended that the process include a social impact assessment, an affordability impact assessment for cases like the Peters and Dlamini families, and an assessment of the impact on inequality through the UK Equality Duty approach.
Black First Land First (BLF)
Ms Zanele Lwana, Deputy President, BLF, said the BLF rejected the Bill in its current form. The ruling party had been trying to buy back stolen land since 1994, and had managed to buy back only 8% of the land after having spent over R50 billion on this. The Bill had nothing to do with the expropriation of land without compensation. It had nothing to do with addressing the uneven ownership of land in the country, with majority of the land being owned by a white minority. This dichotomy was the result of colonialism legislated into apartheid.
Moving forward, the BLF called for a land expropriation bill that gives effect to land expropriation without compensation as a means of redress. It should be guided by the principles that all land in the hands of the white minority was stolen land, and the primary purpose for redistribution was historical; that all black people had a right to land, without payment, in South Africa; that the eviction of farm workers and poor people from land in South Africa should be regarded as illegal; and that land in the hands of black people, like the Ingonyama Trust, must be exempted from expropriation without compensation. It also called for the establishment of a new Department of Land Redistribution, whose sole mandate would be the redistribution of land to the landless in the country.
The Bill, as it stood, had failed four important tests. Firstly, it did not end the ‘willing buyer, willing seller’ practice. Secondly, it did not ensure that land would be in the hands of the black and landless majority. Thirdly, the bill did not resolve the meaning and criteria for just and equitable compensation. Lastly, the Bill did not set targets for the constitutional imperative of land redistribution. The Bill was a retreat from the truth. Section 25 must be replaced with explicit acknowledgement that all black people had the right to land without any payment, because all white-minority land had been stolen. Land occupation by the landless must be legalised.
South African Research Chair in Property Law (SARCPL)
Prof Elmien du Plessis, Associate Professor of Law, North West University, said the submission had been made on behalf of a group of academics associated with the SARCPL of Prof Zsa-Zsa Boggenpoel. The group welcomed the Bill and considered it necessary. There were concerns around foreseeable technical problems. The submission was focused on areas of the Bill that require clarification, and provides inputs on definitions and other technical matters.
Areas that require clarification were the Bill’s interaction with the Constitutional amendment process and the Property Valuation Act, the definition of expropriation as an original form of acquisition, and customary law rights. It was unclear how a valuation done in terms of the Property Valuation Act fitted into the Expropriation Bill process.
The group made inputs on the definitions for clauses 2.1.1 to 2.1.6, and technical Inputs on clauses 3 and 4. The lack of specific provisions in clause 5, regarding the investigation and valuation of property, made it difficult to determine the compensation required later. Clarity was required in clauses 7 and 8, especially considering the risk of under-compensation for owners of unregistered rights, in the different processes and notices. Clarity was also required in clause 9, and especially in clause 12, on the determinisation of compensation.
Prof Du Plessis warned that clause 10(6) could have a disproportionate effect on vulnerable owners who did not have the means or knowledge to verify unregistered rights, and clause 11 placed an unfair responsibility on the owner. In clause 17, the mechanisms to ensure compensation was paid were inadequate. In clause 18, it was unclear how property owners who default on mortgages would be protected. Clause 19 should explicitly mention that a clearance certificate was needed before expropriation could take place. She added that clarifying the definition of “expropriation” would circumvent a problem of ambiguity in clause 22 on urgent expropriations.
Lastly, there were several concerns with the current provisions in clause 23 on the withdrawal of expropriation. Most importantly, a change in purpose puts the whole process of expropriation into question. There should be an important check on the abuse of state power, and re-expropriation clauses should be provided for in the legislation.
The GOOD Party
Mr Brett Heron, Secretary-General, GOOD Party, said the party supported the repeal of the apartheid-era 1975 Expropriation Act and the enactment of the 2020 Expropriation Bill to replace it. Section 25 of the Constitution provides for expropriation of property for the purposes of land reform, and provides circumstances in which compensation for that expropriation may be nil. The 2020 Expropriation Bill did not introduce expropriation without compensation (or expropriation with nil compensation) into our law, which was what much of the opposition to the Bill was based on. It was already provided for in the Constitution. Instead, the bill did what Section 25(1) of the Constitution requires – it provides the law of general application to give effect to the constitutionality of expropriation, including without compensation.
The misinformation and fear-mongering campaigns around the bill had been divisive and undermine the legitimacy of petitions and public comment submissions. It was a disservice to the people of South Africa, as those who had solicited opposition to the bill had done so largely with misinformation. The claim that the bill “allows ANC officials to seize anything you own” was false, as the purpose of the Bill was “to provide for the expropriation of property for a public purpose or in the public interest…”. The Bill did not extend the meaning of property as defined in the 1975 Expropriation Act. He highlighted that expropriation with nil compensation applied to land, and that a property owner’s land would not be taken and the owner being left with a mortgage only liability, as this was not “just and equitable.” Lastly, the Bill did not lead to the loss of one’s right to oppose an expropriation.
Mr Heron concluded by saying that the Expropriation Bill could bring an end to the long debate around effective land reform, fair compensation and expropriation without compensation, or with nil compensation.
South African Institute of Valuers (SAIV)
Ms Lerato Pooe, General Manager, SAIV, shared opening remarks and introduced the organisation.
Mr Saul du Toit, Fellow: SAIV, said the Institute supported the Bill, which includes the relevant administrative requirements and constitutional provisions. To an extent, the bill may address the burning issues around the state’s transformation programme.
The organisation shared its views as technocrats, and its submission highlighted a few technical areas for improvement, such as definitions in chapter 1, and clarifying amendments. Regarding section 3, the Bill should contain additional provisions obliging the Minister to ensure the accuracy of records during expropriation processes. He shared clarifying inputs and additional provisions for sections 7 and 8. He highlighted the disregard of statutory time limits by environmental assessments (EAs) during the expropriation process, and proposed the inclusion of time limits in the relevant clauses, to protect the interests of owners and rights holders.
Additional clarifying inputs were made on sections 9, 10, 12, 13, 14, 17, 18, 19, 21, 22, 24, 25, 26 and 27.
Centre for Development and Enterprise (CDE)
Ms Ann Bernstein, Executive Director, CDE, said that expropriation was a necessary evil that happened in every society. However, it was a dangerous power that must be used sparingly, and in full accordance with the law. It should be fair, legal and rare. Assuming there were no changes to Section 25 of the Constitution, the Expropriation Bill performed reasonably in balancing and limiting the power of expropriation. However, vital amendments were proposed to make the Bill stricter, improve its clarity and to sanction misuse. The Bill should be rectified so that nil compensation should not be permissible for expropriation, except for land reform and in circumstances that were exceptional. The Bill should be strengthened to explicitly mention that nil compensation be limited only to expropriations intended to address the injustices visited on individuals and communities through restitution and redress.
No amendment to Section 25 was needed. However, if it was amended to include the new subsection 4A and the insertion of “state custodianship of certain land…” in subsection 5A, then it would create enormous uncertainties, reduce investment in land and immovable property, and reduce the value of all land and property. She emphasised that the EFF’s proposals for state custodianship over all land would be catastrophic, and reduce the value of land as an asset to zero, wiping out the balance sheets of households, businesses and banks. The amendments to Section 25 had significant implications for the Expropriation Bill, especially around the interpretation and operation of the Bill. The Bill did nothing to address South Africa’s land reform challenge, which had underlying problems of government capacity, competence and integrity.
Agri Western Cape (AWC)
Mr Louis Wessels, AWC Manager: Legal Services & Administration, said Agri supported sustainable land reform that followed an orderly process. It was against expropriation without compensation. It acknowledged the historical events of land dispossession and recognises the need to address this and the equality principle. However, current landowners should not be required to bear a disproportionate burden of the imperative for land reform in the public interest.
In determining the value of compensation, the market value must be the starting point. The Bill must be amended to include this in explicit terms. Nil compensation would lead to disinvestment, as a reduction in the recognition of property rights endangers capital investments in improving land. The legislation should make it explicit that valuation before expropriation was necessary. The AWC was concerned with the lack of explicit timing for compensation and the lack of penalties for non-compliance with time limits by expropriating authorities. It was also unclear what would happen to the owners/rights holders of land subject to a mortgage. Other areas that required clarity were the time periods, and the issue of compensation and value added tax (VAT).
He concluded by saying that there needed to be policy certainty and state accountability in order for successful land reform that contributes to food security and equality to take place.
Mr Jan Bosman, Chief Secretary, Afrikanerbond, said the organisation opposed any form of expropriation without compensation. The Expropriation Bill was undesirable and probably unconstitutional, and it would have far-reaching negative consequences for all South Africans. It opened the way to an unlimited assault on the property rights of potentially all South Africans. It was also arbitrary and irrational, as it pre-empts the legislative process relating to the draft Constitution Eighteenth Amendment Bill. The Expropriation Bill should be considered only once the Constitution Eighteenth Amendment Bill had come to its final conclusion in the legislative process, and its constitutionality had been judicially reviewed and verified.
One of the concerns was that the Bill did not place an obligation on the state to explain or demonstrate how expropriation was justified in the public interest or for public purpose. It also had negative tax implications, in that unpopular intervening tax legislation would have to follow. The organisation was convinced that land reform and the increase of access to property to all South Africans was of utmost importance and needed to be addressed urgently and effectively. Section 25 of the Constitution already provided a legislative framework for real land reform, and this should be used to speed up the land reform process.
He concluded by saying that additional ‘draconian legislation’ would not solve problems arising from failures of implementation and enforcement.
Western Cape Provincial Government
Mr Ivan Meyer, MEC of Agriculture, said the Western Cape government rejected the Bill for both policy-related and legal reasons. Addressing the distortions in property ownership due to apartheid was crucial, but any policy or legislative changes that affect property rights should be considered carefully due to the risk of unintended consequences.
The criteria for land reform should be determined by the quantity of livelihoods created and supported, and the economic value created, instead of the size of land transferred. Expropriation should balance the interests of the individual and public. The conditions for economic growth and investment should be maintained. Studies of similar expropriation policies enacted in other countries had shown a negative impact on people. The Bill was vague and provided little to no guarantee of how provisions were to be exercised by the expropriating powers. The Bill compromised procedural fairness, and section 12 (3C) incentivise land invasions, which were happening across South Africa.
He concluded by saying that the land issue had become a crisis which must be addresses through land reform that was fair and without corruption. Government must deal with the corruption, fraud and maladministration in the national Department of Land Reform before continuing with the bill.
Economic Freedom Fighters (EFF)
Mr Sam Matiase, EFF Member, said that in order to attain the party's stated objective of “economic freedom in our lifetime”, the land must be expropriated without compensation for equal redistribution and use, hence the call for the amendment of Section 25 of the Constitution. The amendment seeks to make it possible for the state to expropriate land in the public interest without compensation, and to propose the kind of future land tenure regime that was required, in which there was a decommodification of land.
The EFF rejected the Expropriation Bill as it stood. It was a continuation of the sell-out arrangement by the ruling party, and offered no significant departure from the way things have always been. Section 12 (3) of the Bill was only a strategy to fool South Africans into thinking that something was being done to resolve the problem of land hunger in this country. The Bill provided for only limited instances in which expropriation could happen without paying compensation, and these were for land that would be useless to the vast majority of South African people.
The party’s call for state custodianship of land was of transformative importance to the people. It meant a broad-based redistribution of land to people who could use it for its social and economic purposes – including industrial development, production and residential use. This Bill and the Constitutional Amendment Bill, which had been appropriated by reactionary elements from the ruling party, did not take into account the need for a deeper level of transformation, and would not lead to broad-based redistribution of land. The EFF called on all progressive forces to reject the Bill as it stands.
African National Congress (Gabby Shapiro Branch)
Ms Safoora Sadek said the ANC’s Gaby Shapiro branch supported the Bill because it gives effect to the constitutional obligations in Section 25, to give adequate access to land and address issues of social justice. It was also in support of the Bill because there was an urgent need to repeal the existing Expropriation Act No 63 of 1975, which served the expropriation interests of the apartheid era government. The organisation believed that the weaknesses of the bill needed to be amended to avoid a situation where it was entirely rejected. In order to strengthen the bill, it proposed amending the preamble to delete the part that repeats what was in Section 25, and inserting two additional clauses to the preamble.
Ms Busisiwe Nxumalo shared the ANC’s proposed amendment to the purpose of the Bill to make it more explicit.
Mr Tim Dunn elaborated on the proposed amendments to the definition of the terms "property," " public purpose" and "court" respectively. The definition of property had been amended to tying the definition to Section 25, which was currently under consideration for amendment. The definition of public purpose was amended to be more specific, to avoid possible litigations on how the administration serves a public purpose or interest. It would also ensure that property was not expropriated for corrupt or other nefarious purposes other than its main purpose, which was to expropriate land and other immoveable property in pursuance of the country’s land reform and socio-economic development priorities. The definition of court had been expanded to include the land court.
Mr Senzeni Mphila said the bill’s definition of expropriating authority should be amended to remove the words “organ of state,” and the word “person.” Instead, the Minister of Public Works should establish a single expropriating authority or agency, which the definition could make reference to. A single EA would ensure better co-ordination and uniformity of administrative processes, thus ensure speedy delivery.
The Chairperson, in closing, thanked the stakeholders for their submissions and thanked everyone in attendance.
The Committee Secretariat announced that there had been a change in the parliamentary schedule, leading to changes in the Committee programme.
The meeting was adjourned.
- SAIV submission
- NEASA submission
- LARC submission
- Agri Western Cape submission
- Prof. Thuli Madonsela Presentation Law Trust Chair in Social Justice
- Die Afrikanerbond Jan Bosman oral submission
- Speaking Notes on the Expropriation Bill
- GOOD submission
- Centre for Development and Enterprise submission
- ANC Ward 58: Gaby Shapiro Branch submission
- SARCPL submission
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