Expropriation Bill: response to public inputs from Parliamentary Legal Adviser, DPWI & OCSLA; with Deputy Minister

Meeting report

Opening remarks by the Chairperson

The Chairperson indicated that this meeting was still part of what was explained to South Africans during the provincial public hearings. After the process of oral presentations, written submissions and public hearings, the Department of Public Works and Infrastructure (DPWI) had been invited to look at the clauses and advise the Committee accordingly. The Parliamentary Legal Adviser and the Office of the Chief State Law Adviser (OCSLA) had also been invited to this meeting, which was supposed to be held on 24 November 2021, but was postponed due to the mentioned entities not being ready to present on that day.

The Chairperson provided some background to the Expropriation Bill. In 2019, the Parliamentary Advisory Panel on Land Reform had advised the President that the old Expropriation Act 63 of 1975 was unconstitutional and was in conflict with the Constitution of South Africa that was adopted in 1996. It was explained that the Expropriation Bill [B23-2020] would repeal the Land Expropriation Act 63 of 1975.

The legal experts present in the meeting were tasked with looking at what people had said and would ensure that the Bill was within the required legal parameters. It would not do for the Bill to be adopted with clauses that conflicted with the Constitution.

She acknowledged that many South Africans were following the Expropriation Bill’s [B23-2020] progress. She said that South Africans were living in a very unequal society and country in which many laws had disadvantaged the majority of South Africans. The Expropriation Act 63 of 1975, which needed to be repealed, was adopted by the then-Apartheid government. The legal experts at the meeting would advise whether what had been raised by people was within the legal parameters of the Constitution, though this would not be during this meeting.

The Chairperson invited the Department, the Parliamentary Legal Adviser, and the OCSLA to speak without fear or favour and to advise the Committee so that when the Portfolio Committee dealt with the Bill clause-by-clause it would be within the parameters of the law.

Mr W Thring (ACDP) and Ms L Mjobo (ANC) sent their apologies. The DPWI Minister, Patricia de Lille, sent her apologies as she had to attend a Cabinet meeting.

DPWI Deputy Minister Noxolo Kiviet apologised and said she would have to leave early at 10am for a Select Committee meeting on but had attended this meeting to legitimise the Department’s presentation.

Briefing by the Department of Public Works and Infrastructure

DPWI Deputy Minister Noxolo Kiviet, Mr Imtiaz Fazel, DPWI Acting Director-General, Mr Molatelo Mohwasa, Acting DDG: Policy, Adv Geoffrey Budlender and Adv Uday Naidoo were present.

Deputy Minister input

Deputy Minister Kiviet introduced the Acting DG, Mr Imtiaz Fazel, and the lawyers who had been assisting the Department in drafting the Bill and providing legal advice.

Deputy Minister Kiviet said that the intention of the Bill was to act within the prescripts of the Constitution. This type of Act was needed and enabled other Government departments to craft their own expropriation laws. This was a tool in the hands of the people of South Africa for the kind of land reforms that the Department wanted to see. Departments, such as the Department of Land Affairs and the Department of Environmental Affairs would be enabled by this Act when making their own legislation. The Expropriation Bill was a key that unlocked the potential and ability of South Africa to initiate and expand on land reform that was constitutional. The intention was for the Bill to be constitutional.

The detail in the comments would come from the lawyers. She said that the state law advisors had the Department’s blessings in engaging with the responses they would bring to this meeting.

Mr Imtiaz Fazel, the Acting DG, said that the Deputy Minister had summarised the strategic issues pertaining to the Department’s presentation.

Mr Molatelo Mohwasa, Acting DDG: Policy, gave an overview of the Department’s presentation and introduced the background to the Expropriation Bill’s [B23-2020] process. He handed over to Adv Budlender and Adv Naidoo.

Adv Geoffrey Budlender presented on the following six items:

- Definition of expropriation

- Definition of property

- Expropriation “without” compensation

- Inclusion of mineral and water rights

- Chapter 5 of the Bill

- Clause 12(3) and (4) - Nil Compensation

See attached presentation for further details.

Mr Mohwasa indicated that on the clause-by-clause issue raised, the Department would be able to provide comprehensive analysis on each clause when the time arose.

Briefing by the Parliamentary Legal Adviser

Ms Phumelele Ngema, Parliamentary Legal Adviser, presented on:

- The Expropriation Bill process

- Content and context (including the SEIAS Impact Assessment Report for B23-2020 done in 2019),

- Context and rejection of S25 proposed amendment

- Principles of Expropriation Bill B23-2020

- Clause 12 principles

- Problematic clauses

- The Court and Land Court Bill

- Court definitions (including “intangible property”)

- Concerns on definitions

- Clause 9 on Vesting and Possession

- Third-party liability (Clauses 18 and 19)

- Lliabilities/costs for Clause 9 against Clauses 18 and 19

- The Court’s role

- The involvement of the Master’s Office of the Department of Justice and Constitutional Development (DOJ&CD)

- Other provisions

- Urgent expropriation in clause 22

Ms Ngema omitted content she had covered in other slides and content that had already been addressed by the Department or would be presented by the State Law Adviser.

See attached presentation for further details.

Briefing by the Office of the Chief State Law Adviser (OCSLA)

Mr Shaun van Breda, OCSLA Senior State Law Adviser, presented on relevant definitions (including, “property” and “expropriation”), responses from public hearings on contentious clauses, relevant clauses, and Constitutional Court judgements relevant to the Bill.

See attached presentation for further details.

Discussion

The Chairperson said that the Committee appreciated all the presentations that had been made which had covered many of the concerns raised throughout the Bill’s process. She said that the information that had been presented would help the Committee in the clause-by-clause deliberations.

Ms S Graham (DA) thanked those who had presented and said that the Committee now had clarity on the concerns which had been previously raised during the submissions and public hearings processes.

She asked Adv Budlender about clauses 12, 3 and 4, and the amount of power the Court had in determining what would comply with these clauses, including how to determine whether or not a property had been abandoned. The problem was that the Bill allowed access to the court post-expropriation notice. She recalled that the Parliamentary Legal Adviser had asked who would be responsible for legal costs. This was a challenge in her municipality, where R100 000 needed to be found before appointing a Council. Costs surrounding “legal battles” were a huge concern for people who were trying to protect their private property rights.

Ms Graham said that the courts being able to consider what property was and the challenges surrounding nil compensation were mentioned in Adv Budlender’s presentation. She was concerned that the court would come in too late and that the costs were prohibitive. She hoped the Committee would keep this in mind when it started the clause-by-clause deliberations.

She appreciated Adv Budlender’s alternative proposal on amendments for 12(3) (d) and amendments from the Department on addressing loss of control. She hoped that land grabs would be incentivised if loss of physical control was a prerequisite for nil compensation.

Ms Graham found the updated presentation from the Parliamentary Legal Advisor incredibly comprehensive, especially with how Ms Ngema had addressed many of the concerns that had been raised.

Her only gripe was with Ms Ngema’s support of the Socio Economic Impact Assessment (SEIA). This was never presented to the Committee at the start of the debates on the Expropriation Bill. Following a Promotion of Access to Information (PAIA) application, the SEIA document had been released.

She had gone through the SEIA document and had written to DPWI Minister Patricia de Lille about it, to object that although the document was supposed to deal with the economic impact, it had not discussed economic impact. The document had said that investment would not be negatively affected by the introduction of the Bill because investors’ interest was in whether the Bill complied with the Constitution. This was the sum total of the document’s inclusion on economic impact.

AgriSA’s submission included a comprehensive impact assessment on a similar issue to the Bill, based on various countries such as Zimbabwe and Venezuela. The SEIA report for the Bill had done nothing to that extent.

The SEIA report had cited support from organisations who withdrew their support after the Committee had heard the organisations’ submissions, as they were not in support of the Bill or aspects of it. Ms Graham was concerned that the SEIA report was “not properly done” and that it was a “desktop study”. She had requested that a proper assessment of the socioeconomic implications be done.

The Banking Association of South Africa had been cited as supporting the SEIA report and after the submissions process, had asked for an independent impact assessment be done.

Ms Graham was concerned that the SEIA report was merely being used in support of the Committee’s aims with the Bill, despite not being carried out in support of the Committee’s goals.

She mentioned that the Parliamentary Legal Adviser’s slides included the “good and bad implications” and did not feel as if this was technical or legal jargon. ‘What were the socioeconomic implications? Had these concerns been identified and addressed’? She did not feel as if the Committee was “operating from the right basis” on this.

She agreed with the Parliamentary Legal Adviser on most of her presentation and thought that Ms Ngema had given the Committee “a lot of food for thought” on thinking about the various clauses in the Bill. This would go a long way to appease people and “allow people to relax for a bit”. A lot of the emotion surrounding the Bill had been removed. The Committee was now looking at it from a balanced perspective.

The issue of the property clause would come up in the debates. More fear would be created from leaving this clause so open.

On what government should be allowed to expropriate, it should not be defined in terms of constitutional property. It should be defined in the Expropriation Bill, as it did not apply to the constitutional definition of property, but rather applied to the definition of property that could be expropriated. Leaving it so open to interpretation would require Courts to define “property” to allow Government to expropriate. A more definitive view of property would need to be created so that the Act (once the Bill was passed) was not abused for other mechanisms.

On intangible property being expropriated by government, she referred to the South African Police Services’ (SAPS) DNA analysis software, and the dispute between the company which had designed the software and SAPS. SAPS had been trying to retain the intellectual property of the software for continued use. This was a good example of expropriation of intangible property that could occur if the “right kind of property” was not protected. There needed to be discussions on property definitions for purposes of expropriation and it should not be left up to constitutional interpretation.

Administrative law and justice needed to be complied with. Some of the problems raised by the Parliamentary Legal Adviser had indicated that there could be challenges with administrative justice, particularly clauses 7 and 8 on expropriation notices. As highlighted by the OSCLA, every clause needed to be “measured up” against administrative law prescripts to ensure the Committee was happy with it.

Ms Graham thanked everyone for their thoroughness and hard work with their presentations, as the Committee were legislators not lawyers and the presentations had helped with laypeople’s understanding of the Bill.

Ms M Hicklin (DA) said that much of what she had wanted to say had already been mentioned by Ms Graham. She thanked the presenters for clarifying many of the points that had been raised in the public consultations and written submissions.

She found Clause 12(3) (a) particularly problematic as it begged the question ‘Who was going to decide which property would be allowed to be used and which would be held for investment. ‘Who was going to be the judge and arbiter of whether or not a piece of property could be for investment’? This was a major problem.

She highlighted the immense amount of concentration and attention to detail that the State Law Adviser had put into the presentation, and in clarifying the concerns both the Committee had discussed amongst itself and those that the public had raised. During the nine months of deliberations of the Bill, the State Law Adviser had contributed and clarified a lot of the Bill to the Committee. She thanked all who had presented, but especially the State Law Adviser for clarifying so many matters.

The Chairperson once again thanked the presenters for clarifying many matters.

She could not agree with Ms Graham on her statement on emotions being removed while discussing the Bill if the Committee had ever previously had emotions on the Bill. The Committee had handled this matter in the most appropriate way.

Several times, during the public hearings and oral presentations, it had been indicated that before discussing the Bill as the Committee, legal advisers would be invited to look at the concerns raised by all submissions (oral presentations, return submissions, public hearings). It was good that all the presentations agreed on one thing: that the Constitution said that the Act should be able to deal with expropriation.

She expressed appreciation for the Department which had clarified many things on ‘expropriation’ and ‘property’. In their presentation, the Department had referred to previous relevant Constitutional Court cases dealing with ‘expropriation’ and ‘property'. In the debates, the Committee would refer to all the information from the presentations to do clause-by-clause analysis. The Department would also be present in that meeting, which would allow the Committee to call on the Department for reference at any time during the clause-by-clause deliberations. She reiterated her appreciation.

The key part in this Bill was what the Constitution had stated: that there should be an Act on how to administer expropriation for the common good to rectify past wrongs. The Committee was “more than ready” to discuss the Bill, clause-by-clause.

The Chairperson thanked the Department, including the Deputy Minister and the Acting DG, the Parliamentary Legal Adviser, and OCSLA for their presentations.

Committee minutes

Ms Hicklin said that her initials had been switched in the minutes and the Committee Researcher's apology had been not recorded. She moved to adopt the minutes.

Ms Graham said that the last word in point 5.2 should be “year” not “meeting”.

Ms S van Schalkwyk (ANC) highlighted that her raised hand had not been noticed during the meeting. She seconded the adoption of the minutes.

The Chairperson apologised for not noticing Ms van Schalkwyk’s raised hand.

Committee minutes from the meeting held on 16 Feb 2022 were considered and adopted.

The Chairperson said that according to the ATC, Mr S Zondo (IFP) would be replacing “the dearly departed” Mr M Nxumalo (IFP).

She thanked Members for robustly, constructively debating in the Portfolio Committee. South Africans were looking to the Committee, especially when it came to the Expropriation Bill. It would be one of the tools the Committee would use to analyse the Bill clause-by-clause. The legal experts who had presented had referred to case law, which would also help in the clause-by-clause deliberations.

To allay South Africans’ fears, the Committee would not do anything that was not within the parameters of the law. The legal experts had clarified definitions and terms using relevant case law. The Committee was still on the right track. It was the Committee’s responsibility to ensure that, as the Constitution clearly stated, there was an Act that dealt with expropriation. The Committee needed to ensure that there was an Act to repeal Act 63 of 1975.

The Chairperson thanked the Committee Members and the administration team for their work.

Ms Graham pointed out that there was no quorum to adopt the minutes.

The Chairperson said the IT team would check to see if there was quorum before several members, Mr E Mathebula (ANC), Mr T Mashele (ANC), Ms L Shabalala (ANC), were kicked out of the meeting. Otherwise, the minutes would be adopted at the next meeting.

The meeting was adjourned.