Expropriation Bill: deliberations

Meeting report

The Chairperson welcomed the members of the Committee, the officials from the Department of Public Work and Infrastructure (DPWI), Parliamentary Legal Services and all of those in attendance. This was one of those meetings that the majority of South Africans looked forward to observing. It has been a culmination of many activities that started with the Department forwarding to Parliament the Expropriation Bill number 23 of 2020. Parliament then referred the Bill to the Portfolio Committee. The Committee had invited written submissions from the public. There were oral presentations from the public. The Committee went to the nine provinces for public hearings in which it invited the people of the country to place their comments on the Bill.

The Expropriation Bill number 23 of 2020 was there to repeal the Expropriation Act 1975, that was enacted by the previous government before 1994. 1994 was a very important year for many South Africans because that was the year the majority of this country were allowed to vote for the members of their different political parties to go to Parliament. One of the reasons South Africans did that was because they hoped Parliament would change the laws from those that were discriminatory to many South Africans. Another important date in South Africa’s history was when the Constitution was passed in 1996. The Constitution allowed that laws may be made to ensure that the Constitution was implemented totally. The Committee was here to advance that. The introduction of the Bill read as follows, ‘to provide for the expropriation of property for a public purpose or in the public interest; to provide for certain instances where expropriation with nil compensation may be appropriate in the public interest; and to provide for matters connected therewith’.

The Committee had invited the legal services from the Department, the legal services from Parliament and the Office of the Chief State Law Adviser to advise it on the submissions received on the Bill. Today the Committee would be discussing the Bill, clause by clause. The Committee will be looking at the Bill, keeping in mind what people had said through written submissions, oral presentations and public hearings. The members would make sure that they were still within the prescripts of the law. That was why the Committee invited the Department to be a part of the meeting. The people of South Africa should know that what they had written would not be thrown out. The Committee would have discussions and make sure that it was within the ambits of the law. The Chairperson asked the members to discuss robustly, progressively and ensure that the transformation talked about in 1994, it may be late in 2022, was realised.

The Chairperson asked the Committee Secretariat to read the apologies into the record.

The Chairperson noted the challenges of loadshedding and how it might affect some of the members.

The Chairperson asked the Committee Secretariat to present the agenda. The Committee would be led by the Committee Content Advisor in considering the Expropriation Bill, clause by clause. Thereafter, the Committee would have an opportunity to discuss the Bill.

The Committee was also supposed to adopt the minutes of the previous meeting, but the Chairperson asked that the minutes be removed from the agenda so that the members had enough time to deliberate on the clauses. In next week’s meeting the Committee would also be dealing with the Bill, clause by clause.

The Chairperson handed over to the Committee Content Advisor, Mr Denyssen, to take the Committee through the Bill.

Consideration of the Expropriation Bill clause by clause

Mr Shuaib Denyssen, Committee Content Advisor, took the Committee through the Expropriation Bill. He would read each clause and then the members could provide input on a specific clause. The Bill was presented to the Committee.

Long Title and Preamble

He read through the long title and preamble of the Bill.

Ms S Graham (DA) wanted to make an input on the long title and preamble before the Committee moved onto the definitions. 

The Chairperson said that the preamble was not part of the Bill. It was just the introduction. The Committee needed to talk about the actual Bill itself and go through it, clause by clause. She suggested Mr Graham deal with chapter one, which was the definitions. Some of the issues that were in the preamble were present in chapter one.

Ms Graham disagreed. The long title of the Bill formed part of the Bill as did the preamble. The preamble spoke to the Constitutional imperatives that were being applied in this law. She wanted to address the long title of the Bill before the Committee moved onto the definitions. It was important that the Committee flagged an issue in that before it proceeded to the discussions. Everything in this piece of paper was part of the Bill.

The Chairperson allowed Ms Graham to make her point.

Ms Graham flagged the long title. It said, ‘to provide for the expropriation of property for a public purpose or in the public interest; to provide for certain instances where expropriation with nil compensation may be appropriate in the public interest’. She flagged that sentence. That linked to Section 12 which the Committee was still going to debate. That was inserted on the premise that Section 25 of the Constitution would be amended to allow for nil compensation. Currently in the property clause, nil compensation was not constitutionally mandated. Just and equitable compensation was mandated. She flagged that sentence and suggested that it might be potentially removed from the Bill that was tabled once the deliberations on the Bill were finished. She was hopeful that it could be proved that nil compensation clause could not be included in the Bill because it was unconstitutional. She wanted that put on record.

The Chairperson reminded the Committee that it had a Bill that had been prepared because the Constitution said that the State may formulate laws and legislation to implement the Constitution. That is where the Committee was. Members could not say that the Bill needed to be done in such a way to satisfy themselves. The Committee would deal with the issue of nil compensation when it came across it in the Bill. She did not think that the Committee would be changing the title of the Bill. She allowed Mr Denyssen to continue going through the Bill.

Clause 1 – Definitions

Mr Denyssen read through the definitions of the Bill.

Ms Phumelele Ngema, Parliamentary Legal Advisor, Constituional and Legal Services Office, asked that after each definition was read that members gave their points of view on the definition. This should be done so that once the Committee moved from the particular definition that it was then settled, either through being corrected or staying the same. That was a suggestion.

The Chairperson said that she respected Ms Ngema’s view but wanted the Committee to deal with all of the definitions together and not deal with them one by one. Afterwards, members could flag which definitions they wanted to comment on. She did not want the definitions to take the entire day. She asked Mr Denyssen to finish going through the definitions. Thereafter, she would allow the members to correct where there needed to be corrections. The Committee only had three hours to deal with this today and then another three hours next week. She did not want the members to comment on every definition as it would not allow the Committee to finish up today.

Ms Graham said that she did not want to get into debates now. The members were legislators. Their job was to legislate. This Bill went out in the name of this Committee as an Act that would have far-reaching consequences on private property rights and on people who were waiting for property for land reform purposes. She agreed with Ms Ngema. At the end of the day, every single definition needed to be agreed to. The members were there to debate the clauses of the Bill, not do a box-checking exercise where they were happy with the Bill as it had been proposed. This was where the Committee got into the nuts and bolts of this Bill. If this process was not done correctly, it opened it up to a constitutional challenge at a later date because it would be said the members were not given an opportunity to properly engage on the Bill. There were certain definitions that would require substantial debate. By just pushing them through the Committee would lose the essence of those definitions. There were many definitions that did not need any input, but she believed the Committee needed confirmation on each definition as it went through so that it did not lose sight of the important definitions that needed to be debated. She supported the legal advisor’s recommendation.

Ms L Shabalala (ANC) said she thought the Chairperson had ruled on this matter.

The Chairperson thanked Ms Shabalala. She asked Mr Denyssen to finish reading through the definitions. Then she would allow the members to talk on the definitions that were presented.

Mr Denyssen continued reading through the definitions.

The Chairperson said that the members would first deal with clause 1, which was the definitions. The Committee would move onto clause 2 after the members and legal services had dealt with the definitions.

Ms Graham addressed the definition of ‘court’ under (c). This related to the issue of intangible property. Throughout the Bill the only reference to intangible property, directly, was made under this specific clause. Her concern was that intangible property should have the specific procedures that would need to be dealt with in order to expropriate intangible property. It was given enough credence to be mentioned under the definition of ‘court’ but nowhere else was it discussed. The Committee should take out this clause and remove intangible property, which would be discussed under the property definition.

She addressed the definition of ‘deliver’. It said, ‘in relation to any document, means to deliver by hand, facsimile transmission or post’. The Post Office was completely dysfunctional, and nobody used faxes anymore, it was a redundant technology. Her recommendation was that the Bill include electronic media for delivery, email or WhatsApp or website. The Committee should include in the Bill alternative electronic media and remove facsimile completely. Post could be left in but in rural areas not everyone had access to post. Most of the farms used post boxes. Post would be a redundant methodology. That needed to be amended.

She addressed the definition of ‘disputing party’. There were only three disputing parties that were defined. That was the owner, holder of a right and expropriated owner or expropriated holder. That was also limited to a compensation dispute. The only dispute that could be engaged with these disputing parties was the amount of compensation. That referenced a later issue where an organ of state may decline to have their property expropriated but an individual could not. A disputing party was only given the right to dispute on issues of compensation which needed to be looked at in terms of fairness.

She addressed the definition of ‘expropriating authority’. That meant an organ of state. She noted some of the inputs the Committee received were from the Free Market Foundation in 2020. The Free Market Foundation spoke about how the abuse of power would be monitored in terms of an expropriating authority being an organ of state. The Equal Education Law Centre said that in terms of Section 239 of the Constitution there were broad definitions of an organ of state, which included private entities performing public functions. In this definition of an ‘expropriating authority’ by including an organ of state, the Bill could be giving expropriating rights to a private entity that was acting on behalf of Government. There needed to be something that limited an organ of state so that the Bill was not using the definition of organ of state as defined in Section 239 of the Constitution. This needed to be done to make sure that people that were acting on behalf of Government were not given rights of expropriation. There should be a certain level of curtailment in terms of who was entitled to be an expropriating authority.

She addressed the definition of ‘holder of a right’. Nedbank, in its submission, recommended that a holder of a right should not just be an unregistered right but also a registered right. A holder of a right was also someone with a registered right. That needed to be rectified.

She addressed the definition of ‘land parcel’. It meant the land that has been surveyed. This was an important issue because this fell under the Deeds Registries Act which provided a definition of land. The Committee needed to ascertain whether or not the land parcel included improvements on that land or if it was just land as defined in the Deed Registries Act.

She addressed the definition of ‘owner’. It said, ‘where the ownership of the property or right in question is registered’. This assumed that all property that was up for expropriation was registered. There were people who owned property that did not have to be registered. Considering the property clause, it was all property and not just land. If her car was paid for and she was the direct owner of her car, but she did not have a registered right in that car. The Committee needed to be careful where the Bill said only property that was registered because that precludes a certain assumption that unregistered property was not covered under an owner. It assumed that an owner only owned registered property and not unregistered property. She highlighted if someone had a mortgage. There was the owner who was the actual owner of the property but there was also the mortgage owner. Who had the prevailing right when it came to clause 7 in terms of negotiations on that property? Who was the actual owner? Was it the owner of the property or the owner of the bond?

She addressed the definition of ‘property’. The Banking Association believed that intellectual property should be excluded and that it should be limited to tangible property. She agreed with that view. There could be a more structured and stricter approach to the definition of ‘property’ which did not conflict with the Constitution. While many people went to great lengths to provide a broad definition of ‘property’, she did not believe that there needed to be a broad definition for the purposes of this Bill. People had said that she was an alarmist and disingenuous for saying that the Bill provided for Government being able to take her car, pension, trademark or copyright. As it stood, Government could do that. The primary purpose of this Bill was to expropriate immovable assets or property not intangible property and movable property. That was not required for the State to pursue its objectives. It did not make sense to leave the property clause as it stood. This Bill was designed to repeal the Expropriation Act. How much other property had been expropriated under that Act other than land and immovable assets? This should also give effect to Section 25, but it should explicitly include only the property that was covered by this Bill. She believed that there could be a narrower approach to the definition of ‘property’ for the purposes of the Bill. Looking at the rest of the Bill and how it was drafted, the main purpose of this Bill was deal with the expropriation of land. Government did not need her car for public purpose or public interests. Why would the Bill then include Government’s right to take her car, if it so chooses? She believed there could be a more clearly defined definition of ‘property’ that was not in conflict with the Constitution but that stipulated to what property was covered by this specific Bill.

She addressed the definition of ‘public interest’. Public interest included the nation’s commitment to land reform. A lot of the inputs received on ‘public interest’ was that it was vague and ambiguous. Government’s response to the inputs that were received during the Nedlac discussions was that this could be addressed by regulations. Would those regulations hold up the passing of the Bill, the enactment of the Bill and the implementation thereof because then there needed to be guidance on public interest. One of the inputs Claremont Main Road Mosque made was that it should be set out in each relevant Departments’ acquisition and expropriation guiding policy. That was quite a good way of containing public interest so that it was not just broad strokes that could come up for whatever purposes. The Committee needed to curtail Government’s power in terms of their access to private property. Expropriation was the taking of property without somebodies’ permission, without them wanting it to happen. Government should not have these overarching rights where it could do as it pleased. The Committee needed to be careful that it was not giving Government broad public interest clarity and that it could do whatever it wanted to.

She addressed the definition of ‘public purpose’. An organ of state was included under ‘public purpose’ and again this could include private entities. That was not a positive thing to have. A private entity could say that it was acting on behalf of Government and for a public purpose. Agri SA felt that there should be regulations that was promulgated for this so that there was clarity on the permissible uses for the property in terms of expropriation. If it was taken for public purpose, there should be a clear reason as to why it was being taken and what the property is going to be used for. On the Nedlac document, ‘public purpose’ was not included when that document was issued. It was strange that it was added after the Nedlac debate.

She addressed the definition of ‘unregistered right’. It said, ‘a right in property, including a right to occupy or use land, which is recognised and protected by law, but is neither registered nor required to be registered’. That should also include an owner. There will be owners who had unregistered rights. Ownership should be included in that definition.

Ms M Hicklin (DA) said that if she was talking from a party-political perspective, that the Democratic Alliance fully supported the land reform and restitution process. She noted that private property rights were the cornerstone of any democracy. Looking at land reform and existing policies, that was very much the focus of a DA approach to this expropriation process. She noted the definitions of ‘land parcels’, ‘public interest’ and ‘property’. Property rights needed to be looked at as it was the cornerstone of any democracy. She highlighted Section 25 of the Constitution. The Committee needed to be careful when it looked at ‘public interest’. The Committee needed to look at the land that was covered in the public interest and that it was not removed. The Committee needed to define carefully what was land that was taken in the public interest and who took it in the public interest. It opened the way to an organ of state misappropriating it and abusing it. It could be used by a third party in the name of an organ of state. The Committee needed to be careful about that. The Committee needed to be careful about using the words ‘past racial discriminatory laws’ in appropriating property that was not land and property that was land. She raised concern with the appropriating authority potentially misappropriating power that was given to it. The Committee needed to be circumspect rather than having a broader definition. Land appropriated in terms of this Bill was only a very small portion of the land that was going to be used. She was concerned about taking all the land and the mineral resources that were associated with the land that was taken and putting it into the hands of State. It was a very dangerous concept. The Committee needed to be very careful. Where did the interest lie, in the land itself or in the bond and the mortgage? Where did the boundary end? She noted the improvements that were made to that land. Government needed to structure what it did very carefully.

Ms S Van Schalkwyk (ANC) referred to the ANC’s position on the subject matter. The 53 National Conference resolved that the expropriation of land without compensation should be among the mechanisms available to Government to give effect to land reform and redistribution. Government needed to ensure that it did not undermine future investments in the country or damage agriculture production and food security. The Expropriation Bill was part of the ANC’s legislative programme for transformation. When members said that the Committee should be careful of using past discriminatory issues on land that was exactly what that the Committee should use. South Africans had been dispossessed of their land through different apartheid-era laws. She said that it was pivotal to note the ANC’s position.

She addressed the definition of ‘deliver’. Ms Graham spoke about excluding post as it was a past form of delivery. She strongly opposed that view based on the fact that many people in rural areas were still using mail post as a form of delivery. She noted that in many instances facsimile was not prevalent anymore but felt it should still be kept in the definition. If the Committee excluded the issue of post or fax then it meant that it would be totally excluded from the Bill. She agreed with Ms Graham on including electronic media like emails but not necessarily WhatsApp and other forms of electronic media. If the Committee indicated electronic media then it would be opening the scope so broad and include other media like Facebook and other social media. The Committee should include the specific electronic media of emails.

She responded to the proposal of Ms Graham on the ‘expropriating authority’ or organ of state to be limited. She proposed that the Committee left it as it was because the Committee knew that when it spoke about ‘expropriating authority’ or organ of state it was referring to the Minister. In practice the Minister may assign officials or other people acting on their behalf. If the Committee limited that clause, then it meant that ‘expropriating authority’ was limited only to the Minister and would not take the practicalities into consideration. She disagreed on that issue.

She addressed the definition of ‘public interest’. Ms Graham raised that the definition was not the same as had been included in the Nedlac discussion. All the discussions that happened at Nedlac were between the Nedlac partners, but those partners had the opportunity to make presentations to the Committee through the public hearings. She did not think this viewpoint needed to be taken into consideration or to be a standing factor. She noted that the parties at Nedlac comprised of Government, business and communities. They had made presentations. She proposed that that viewpoint be excluded.

Ms P Van Staden (FF+) had concerns about the definitions used. The Committee needed to look into what was intangible property. He defined intangible property as something that a person or corporation can have ownership of and can transfer ownership to another person or corporation but had no physical substance like a brand, knowledge or intellectual property. This law was about the expropriation of land and intangible property. Clause 1 (c) was problematic and could broaden the scope so much for Government to do what they wanted to do if it was accepted like this.

He discussed the issue of delivery. Electronic media should be included, email and various other electronic media as well. The postal service in South Africa was not up to standard so he foresaw problems in the future when people did not receive notices from Government via post or fax.

He discussed the term ‘expropriating authority’ and ‘organ of state’. He was of the view that the Committee should not give Government the power to do whatever it wanted to do in a non-democratic manner. The Committee needed to be careful over the meanings that were included in this Bill.

He addressed the term ‘public interest’ and ‘public purpose’. What exactly was meant by ‘public interest’ and ‘public purpose’? It could mean many things. How was it in the public interest that a Minister could expropriate land? It needed to be clearer on the matter of public interest and public purpose. The definition of it needed to be in such a manner that it was understandable. The Bill stated that the Minister was the expropriating authority or the organ of state. What could happen was that a MEC from a province or a Premier could also say that they were an organ of state and had the power to expropriate. He foresaw many problems in the future. The Committee needed to look into ‘public interest’ and ‘public purpose’. He thought that it was going to pose some more problems.

Ms Shabalala commented on the issues of the expropriating authority. The Committee needed to look back at how the State became the authority in the first place. The State became the authority because of the mandate that had been given by the people of South Africa. The State could not act outside of the law. The State was the custodian of the Constitution. To say that the Post Office was not used by people was a misplaced statement. In the mornings, she passed a post office, and it was the longest queue because it was servicing people who could not afford to take a taxi. If there was an issue with the inefficiencies and other problems, then those were issues that could be discussed. The Committee could not just write-off the issue of using post.

She discussed the issue of mineral resources. She asked who issued the licenses? The licenses were issued by the State. It was backed by the law and was backed by the Act.

Mr E Mathebula (ANC) said that the country was in this current situation because of the past. The situation the country was in was a creation of apartheid laws. The democratic Government was trying very hard to change that. The South African Government was democratic. Some members were saying that Government could do as it pleased once the Bill was passed and became law. There was no such thing. Government could not do as it pleased. In the past there was a situation where Parliament was actually superior to courts. He noted that under the current leadership the courts could be approached when the Government abused State power. The opposition parties that feared for the transformation of the country in terms giving people rights to own land, should relax. There would be no abuse of power. The current form of the Bill was the correct one. The Bill spoke towards what the people of the country was looking forward to.

He discussed Section 25 (5) of the Constitution. That particular section empowered Government to take legislative steps in order for people to have access to land. There was nothing unusual about Government coming up with a Bill that was going to assist it to help people have access to land. Another section that was important to this particular Bill was Section 36 (1) of the Constitution. That section gave Government the rights to exercise law in a way that was generally applicable. It was not going to be a law that would apply to a particular person only. It would be a law that was applied generally. In coming up with this Bill, Government indicated that expropriation could only be done if it was in the interest of the general public of South Africa. The rights of a person who was affected had to be taken care of. This Bill was one programme that the ANC, in its 54th elective congress resolved that it had to take place and be implemented. It was long overdue. Land was only owned by a few, and the majority of the people did not own land. He noted that the Department would be empowered to expropriate land. The expropriated land would be given to people who were going to utilise that land. Should it be that the land was not utilised properly, the land would be taken. There should be no fear. He spoke directly to the opposition parties, they needed to relax. This Bill would be used to undo the wrongs of the past and the deprivation of the access to property and land.  

Ms L Mjobo (ANC) aligned herself with Ms Van Schalkwyk, Mr Mathebula and Ms Shabalala especially on the issue of the expropriating authority. The expropriating authority had to act within the Bill and law, which was based on the Constitution. The authority could not act outside of the law.

She discussed public interest. She noted that on that issue the legal adviser needed to come in to motivate that one. That issue related to the redress of land.

Mr T Mashele (ANC) said that all the members had a responsibility to build South Africa. He was happy that the DA supported land reform. If all of the members supported transformation, then all needed to agree that they needed to go through a process of pain because in South Africa there were those who had and those who did not have. If the members kept on discussing the definitions and tried to be mechanical with this Bill, then it would be wrong. He noted that the members came from different political parties but at the end of the day the members had a responsibility to build South Africa. If the members said that they supported transformation, then how would Parliament bring in legislation and Bills that will assist in the real transformation in society outside of PR exercises? Where were the members differing? The road to transformation was that there should be public amenities. What was public? Who was this public? Did the members not know who was the public and what was the public interest? The Committee would be working in a circle and making the work of the support staff difficult. His question to the Committee was, where were the members differing on this Bill? What was it that the members wanted to achieve? How was the Committee going to ensure that the South African public receive public amenities? He provided an example from Mpumalanga. At one point when he was still working for the provincial government, the Government wanted to build the RDP houses in Pilgrim’s Rest. The budget was there but the land was not available. How would the Government make sure that the people of Pilgrim’s Rest get the land? Government needed to have the power to expropriate land and build amenities for them. He pleaded with the members that they had a duty and responsibility to transform society. The ANC and DA agreed on this. Feelings needed to be left aside. It would be wrong to redefine words in the interests of individuals. It was not necessary to define a Minister or define a DG. The members were not doing justice to themselves. Where was the bone of contention? The members had a Bill before them, and it was an important Bill. If the members could respond to the question of what they were differing on then the task would be easier.

The Chairperson said that a lot of issues had been raised and the Committee Secretariat had noted the concerns. The Chairperson allowed the Parliamentary Legal Services to respond to some of the issues that had been raised. When the Department had presented to the Committee it said that this Bill defined property with reference to Section 25 of the Constitution. She wanted to note that because it had been something presented to the Committee. The Department further said that this was a deliberate choice because the Constitution was constantly being developed by the courts. It was impossible to adopt a detailed definition of property in the Bill because it needed to be decided incrementally on a case-by-case basis, which the Constitutional Court was doing. There were a number of court cases that were referred to by the legal experts.

Ms Ngema said that with every discussion that was taking place today, the Committee was attempting to make its decisions. The members were trying to find one another as they came from opposition parties. The legal team would draft a list of the things the members discussed, take into account what the law defined and the existing statutes that were aligned with the Constitution. The legal team would not ignore what the Constitution indicated. When the legal team drafted the list in light of the submissions by members it would not ignore what the public had said. The legal team would not ignore what the case law indicated. It would also ensure that everything it suggested for members to accept was aligned with the Constitution.

She explained that Section 25 had not been changed. It had been argued in courts and debates that the issue of compensation at R0, which was generally called nil compensation, was not necessarily excluded from what Section 25 indicated.

She discussed the definition of property. From previous submissions by the legal team, even the courts said it was unwise to define what property was. That was because when the Constitution Assembly when it drafted the Constitution, also preferred to give a definition that said property was not restricted to land. Section 25 provided the guidance when Government needed to deal with the issues of land reform and land restitution without being emotive about it. As the Committee went through the Bill and unpacked the provisions and the content, the definitions would have to be finally considered in light of the content. The members would also need to take into account what the public had said. The main definitions that she had heard the members comment on was nil compensation and whether it was aligned with the Constitution. The legal submissions seemed to indicate that it was in order. The Committee would have to look into the details of clause 12 and what it was providing as the provision that dealt with nil compensation. Section 25 detailed what an equitable and fair compensation was when the State expropriated. The courts indicated that in other instances that nil compensation can qualify to be equitable and fair compensation.

She discussed the current Act. That Act attempted to define public interest and public purpose. The definitions of ‘property’, ‘public interest’ and ‘public purpose’ would be guided by the final decision of the Committee and not individual members. Those three would be defined in light of case law and in light of what already appeared.

She discussed ‘land parcel’. In the Bill it is defined as ‘land that has been surveyed and is either registered or yet to be registered’. Ownership was also a right. It was a right that could be registered or unregistered. When the legal team finally presented an A-list to the Committee it would breakdown and make sure that they were in sync with what was being said. The A-list, in terms of what had been discussed, will be attended to and try and bring members together. This would be a process as the legal team was taking notes on what the members were deliberating and suggesting. In light of the submissions made on ‘deliver’, the definition will be looked at and consider the evolving instances of technology. It needed to be remembered that when laws were drafted it was being drafted for the future and not only the present. There was always an attempt to look forward and look back in order to influence what could work and what the law should be enacting.

The Chairperson said that Ms Ngema had correctly explained the situation. She asked if an official from the Department wanted to respond.

Mr Molatelo Mohwasa, Deputy Director General: Acting Inter-Governmental Coordination, DPWI, said that the delegation from the Department were invited for the purposes of noting the discussions. The Department had been listening attentively to the deliberation. He did not want to go into detail. The Parliamentary Legal Advisor had articulated what the Department had wanted to say on the specific definitions that had been indicated. The Department would go back and look at those definitions that were in contention. He agreed with the comments made about the expansion of the definition of ‘deliver’ that should include electronic mail. The rest of the definitions the Department would reflect on.

Mr Louis Mokoena, Legal Services, DPWI, said that he did not want to add anything at this stage. The Department was just invited to come and note. The Department had noted the submissions by the members and the Department was considering them very seriously. The Department would consider the deliberations and then come back to the Committee. At this stage he did not want to add any further comments.

The Chairperson thanked Ms Ngema for her responses. Ms Ngema would be journeying with the Committee as the legal representative. The Committee would now move to consider clause 2, noting the inputs and counter-inputs that have been made. The Committee agreed that it would add other means of communication as it could not be only through post.

Clause 2 – Application of Act

Mr Denyssen read through clause 2 of the Bill.

The Chairperson said that the members were allowed to interact on clause 2, the application of the Act. The members would not leave any stone left unturned.

Ms Graham raised a few points for clarity. This Bill is the law of general application to give effect to Section 25 (2) of the Constitution which spoke about expropriation. There were other pieces of legislation that gave effect to Section 25 (5) as indicated by Mr Mathebula. The purpose of this Bill was not for land reform purposes. The purpose of this Bill was to give Government the right to expropriate land for public purpose and in public interest, which could include land reform. It needed to be very clear that this was not a land reform Bill. It was a Bill giving the Government the right to use land to fulfil its purpose and obligation to its people. She also understood that this was an emotional and political issue around land. The members were not here to debate political ideology. The members were here to debate this Bill that was before them. The members were legislators. It was part of their responsibility as members of Parliament to pass legislation that gave effect to Government priorities. All political ideology aside, the members were here to debate clause by clause. The members could not just say it was fine and that the Bill was giving effect to a decision at the last ANC congress and therefore the members did not need to discuss it further. It was like as if the members decided to bake a cake as a team, but everybody came with a different recipe. The outcome of that cake would be a disaster. The same thing came to the Bill. This law was important. The members were here to make sure that when this law was passed it was done in a way that gave absolute effect to what Parliament was trying to achieve. That was to give Government the power to expropriate land in a just and equitable manner.

She discussed clause 2 (2). It spoke about the ‘concurrence of the executive authority’. Only State concurrence was provided for in this Bill. Either all parties must agree or none. In other words, why did the State have greater rights in terms of the right to say no than an individual does? The State should negotiate in good faith. The law of general application must apply equally and generally. That meant everyone should be treated equally under the law. Her contention was that clause 2 (2) should be removed. It was provided for in Section 1 and also IGR. Concurrence should have been obtained during the investigation phase. The DA proposed that clause 2 (2) be removed from the Bill.  

Ms Hicklin said that at no point should the country get into a situation where the executive authority, being the State, had a far greater say in the expropriation of land than an ordinary land user or a landowner. That would be out of kilter with what the Constitution said and that could be exceptionally dangerous in what the Government was trying to achieve in this instance.

Mr Van Staden said that he was not at all comfortable with clause 2 (2). It seemed as if the State wanted to protect its own powers and its own property, but it did not want to protect the properties of ordinary citizens of this country. This was problematic for him. He supported that this clause be removed from the Bill.

Ms Shabalala said that members should be satisfied that the Bill stated the expropriating authority may not expropriate property arbitrarily. That covered the rights of any citizen. The clause did cover the recognition of the ownership. It stated that the State would always attempt to reach an agreement with the owner or the holder of the right. She was comfortable with what was contained in the clause.

Mr Mathebula wanted to provide clarity about the expropriation of land in public interest or for public purposes. He agreed with Ms Graham that this was land for the State. Who were the people who constituted the State? Who were the people that were a part of Government? When members spoke about the public, who were they talking about? The State and the Government represented the people of South Africa. If it was for public purposes, who was the public? The public was the people of South Africa who were going to have access to that land. Land could be expropriated for the purposes of building a stadium, something that a particular community in the North West did not have. People would have access and be owners of the land through the State. He wanted to clarify that point.

He agreed with Ms Shabalala. The Bill should remain in the form it was. There was no need for changes. He heard the members from the opposition saying that it looked like the State wanted to protect itself more and on the issue of concurrence.

He discussed the State expropriating land from private individuals. The State would try and reach an agreement with the owner in order for it to achieve what was in the public interest. The State would have to have an agreement with that particular individual or that State entity. This clause also made provisions that if the State wanted to expropriate land and it was not in the public interest then there was a leeway to approach the courts of South Africa. Legal remedy or relief was available. He knew that the constituencies of the DA and FF+ owned the majority of the land in South Africa. The opposition parties were worried that they might lose support in 2024 if they did not successfully defend this matter.

Ms Van Schalkwyk said that she was mostly covered by the previous speakers. The proposal to remove clause 2 (2) should not be sustained. She proposed that it stay as it was.

Mr W Thring (ACDP) said that what was good for the goose was good for the gander applied in this case to the application of the Act. In terms of the law of general application, if Government was looking at expropriating land for good from public citizens then the same law should apply to the State. He was in support of removing clause 2 (2).

He also had a concern with the inclusion of ‘intangible property’. The Committee had to be very careful that that which was intangible could also be expropriated. That referred to copyrights and patents. He did not think it had place in this Bill.

Ms Ngema said that clause 2 dealt with the application of the Act. This clause dealt with how the Act would be applicable and to whom. She heard the concerns raised by the members and noted what the public said. She read what Section 239 of the Constitution defined as the organ of state. It meant ‘any department of state or administration in the national, provincial or local sphere of government; or any other functionary or institution - exercising a power or performing a function in terms of the Constitution or a provincial constitution; or exercising a public power or performing a public function in terms of any legislation but does not include a court or a judicial officer’. This is what organ of state meant in any instance because this was the supreme law. She made an assumption that what the Department proposed when it included clause 2 (2) was to fulfil Chapter 3 of the Constitution, which was cooperative governance within the organs of state. An issue may arise in clause 2 (2) with the use of the words ‘without the concurrence’. Without the concurrence of the executive authority meant that even if the expropriating authority found valid justification to expropriate unless there was concurrence there could be no movement, there could be no expropriation. Clause 2 (3) seemed to bring on board both the cooperative governance that was envisaged in Chapter 3 of the Constitution as well as ensuring that the expropriating authority did try to reach an agreement with the owner or the holder of a right. With all of these things taken into consideration, two things may take place. There could be the reconsideration of clause 2 (2) and the clarifying of the phrase ‘without the concurrence of the executive authority’. Or there could be the removal of clause 2 (2), as had been suggested. Clause 2 (3) generally covered what clause 2 (2) may have been attempting to cover. Clause 2 (3) ensure that cooperative governance remained the order of the day within the organs of state and within all the institutions of the State. That was the legal position in terms of clause 2.

The Chairperson said that Ms Ngema explained in detail why in the application of the Act clause 2 (2) was added. When the Committee deliberated further and came to voting, it would vote on that clause. Ms Ngema has allayed many fears that had been raised by members when they said the clause had to be removed. She noted that it was referencing the Constitution. This Bill needed to be within the constraints and the ambit of the Constitution. The Committee moved onto clause 3.

Clause 3 – Powers of the Minister to expropriate

Mr Denyssen read through clause 3 of the Bill.

The Chairperson invited members to comment on clause 3.

Ms Graham discussed clause 3 (2). There were a lot of inputs that were made to remove this section from the Bill. One of the reasons is that there was a prescription on the Minister. When the Minister was approached by an organ of state, other than an expropriating authority, the Minister had to expropriate that property on behalf of the organ of state. In her view, an organ of state should not be in a position to prescribe to the Minister what they should do. It infringed on the Minister’s executive authority. The organ of state might be a private entity and why would that organ of state have greater authority in the determination to expropriate or not than the Minister did? Although there was a call to remove that section she did not think it needed to be removed. She believed that ‘must’ should be changed to ‘may’. The Minister should have the power to decline because it could be contrary to the other reasons for expropriation, or the Minister had other plans.

She discussed clause 3 (3), the Minister’s power to expropriate. It said it was connected ‘to the provision and management of the accommodation, land and infrastructure needs of an organ of state’. That was contrary to the purpose of the Act which was for public purpose or public interest. That might not be in the public interest and she did not understand how if that threshold was not met then expropriation should not be allowed to happen. If that threshold was not met, then that section was superfluous anyway. If it was for public purpose or public interest and not for the specific needs of that entity then that clause was superfluous. The Committee should take out clause 3 (3) because it was either for public purpose and public interest or it was not and was contrary to the provisions of the Act.

She discussed clause 3 (5). Nowhere in this section did it stipulate that property had to be used for the requirements for which it was expropriated. This was an organ of state that was outside of a normal expropriating authority. In her view, it should justify exactly why they needed that property and what it was going to be used for. That should form part of subsection (5). There needed to be some stipulation that the property had to be used for what the intended purpose was. Sakeliga also made a point that under clause 3 (5)(a), that ‘the ownership of the property vests in the relevant organ of state on the date of expropriation’ and should also include on the payment of compensation as a prerequisite for that vesting. She knew that there would be a discussion later about the timeframes for compensation but it was something she wanted to flag that could be included at this point if the Committee was looking at changing timelines around payment of compensation.

She discussed clause 3 (5)(d). The National House of Traditional Leaders had an issue with this point because they had concerns that they might not have sufficient money to cover that cost. The Committee needed to look at how that costing would work. if the Minister was expropriating on behalf of an organ of state then the costs thereof needed to be weighed up if an organ of state was unable to meet that cost threshold.

Ms Hicklin discussed clause 3 (5)(d). When it spoke about a reasonable time, what was that reasonable time? One of the challenges highlighted in the public hearings was that so many of these land claims had dragged on for many, many years. It was also linked to corruption and abuse of power. She wanted the term ‘reasonable time’ to be pinned down.

Mr Van Staden said that he had a problem with Chapter 2 of the Bill. It was problematic to give the Minister a sole right to expropriate land in any way or form the Minister deemed fit. It was problematic especially when someone was power hungry. That Minister could do anything that they wanted to do to expropriate land without following the letter of the law.

He discussed clause 3 (5)(d) and the cost implication. Would that incur a further burden on the taxpayer of this country? That was problematic for him.

He discussed clause 4 (1) and the power of the Minister to delegate or assign to an official of the Department any power conferred on the Minister in terms of the Act. It was problematic to give officials of the Department powers that needed to be in the hands of lawmakers. The whole of Chapter 2 was going to take away the oversight role of Parliament in general. What was the use of Parliament then? If the Minister had the sole right to do what he/she wanted to do, then what was the purpose of Parliament? Parliament had an oversight role to see that the law was implemented. If the Committee went on the path it started on with this chapter then it was going to take away all powers from Parliament and that was going to be dangerous.

Ms Shabalala said that clause 3 (2) stated that the Minister should be satisfied that an expropriating authority required a particular property. The current situation was that there were pockets of land ready that were in the hands of the State. For some of the land, the Minister had instructed the Department to release that land to an individual. There had never been a problem with PMTE or the Minister starting the process distributing the land. She did not see any problem because this was the current situation. She said that the issue could be part of a broader Parliamentary session.

Ms Mjobo said that she was happy with Ms Shabalala’s input. The powers of the Minister were based on the motivation. Parliament still had powers. Parliament had an oversight role. The powers of the Minister needed to remain as it was.

The Chairperson said that the State had to enact Acts to implement the Constitution. The Committee had been talking about the executive all along. The members of Parliament, who had oversight over the executive, could not take the powers of the executive that were there in the Constitution. It may have been another Minister but in this instance the Department that dealt with the assets of the State was the Department of Public Works and Infrastructure. She failed to understand why the members had an issue when a Minister was given authority in this instance.

She addressed the question of reasonable time by Ms Hicklin. She noted that one of the fundamentals of the Sixth Administration was to fight corruption. The Government of the ANC had put in so many independent bodies that fought corruption. Through Parliament’s oversight corruption was also being fought.

She discussed the issue of reasonable time. There would be court cases as some individuals would take the Minister or the expropriating authority to court. That was why the Committee should not include specific time frames. Reasonable time was good enough for this Bill.

She allowed Ms Ngema to comment.

Ms Ngema said that all the concerns and questions raised by the members were valid. She said that maybe the Department should respond to the concerns raised. She had a question in light of what the members had raised, specifically on clause 3 (3). It stated that ‘Minister’s power to expropriate property in terms of subsections (1) and (2) applies to property which is connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state, in terms of the Minister’s mandate’. She failed to understand what that meant. She had more questions than answers. The questions and concerns of the members were valid and required answers from the Department, as the policy holders.

The Chairperson said that the Department did not bring their legal advisor who usually responds. The Committee was not making final decisions in this meeting, it was only deliberating.

Mr Mathebula responded to Mr Van Staden in relation to his concern about the Minister doing what they pleased. The Minister was an official of the State and represented the State. The Minister had to abide by the law. The Minister would have to work within a particular legal framework. There was no way that the Minister could do whatever they pleased. When the Minister was empowered it was not the same as empowering a private person. This was a sensitive matter. It was not a matter that the members should be whimsical about. It was a serious matter that needed to be dealt with and the Department needed to provide assistance when the Bill was before Parliament.

The Chairperson said that the Committee would come back to clause 3 when it had the Department with it next week. She asked the Committee to continue going through the Bill.

Mr Mohwasa agreed with Ms Ngema in terms of the Department having to clarify clause 3 (3). She juxtaposed the intentions with the intentions espoused in the Bill itself, which was in the public interest. He acknowledged that there was a problem. It was a good observation, and the Department would discuss this issue with the legal team.

The Chairperson said that the Committee would discuss clause 3 next week when it continued with its deliberations. The Committee moved to clause 4.

Clause 4 – Delegation or assignment of Minister’s powers and duties

Mr Denyssen read through clause 4 of the Bill.

The Chairperson said that Mr Van Staden had commented on this clause before the Committee had even considered it. She invited the members to comment on clause 4.

There were no other inputs on clause 4. The concern raised by Mr Van Staden was that of the Minister delegating to an official. The Chairperson asked Ms Ngema to respond.

Ms Ngema said that the crucial part of this clause was subclause (2). The subclause stated that there was no way the Minister may delegate or assign the powers or duties the Minister had. This spoke to the fact that expropriation had to be done by the Minister in terms of clause 3. Clause 22 also dealt with urgent expropriation in instances of disaster. Clause 23 was about withdrawing the expropriation. What appeared in clause 4 (2) was crucial to curtail the power to delegate and it was a good provision that the legislature looked into. The Committee should be satisfied that further delegation would be curtailed. The power to legislate was the power given to legislatures and not the executive. The restrictions that appeared in clause 4 (2) were crucial and important to ensure that that power was restricted to the Minister. It could go no further in terms of being able to delegate further. Subsection (2) had a valid restriction and members should ensure that they were satisfied with all those provisions that restricted taking further delegation than what Parliament had delegated to the Minister.  

Clause 5 – Investigation and gathering of information for purposes of expropriation

Mr Denyssen read through clause 5 of the Bill.

The Chairperson said that where there were issues that needed to be explained further, the Committee would continue on those clauses in the next meeting. If it was needed the Committee would have a third meeting to deal with this Bill. She invited the members to express their party positions without fear or favour when dealing with this Bill. She allowed members to comment on clause 5.

Ms Graham thanked the Chairperson for saying what she had said. If the Committee needed to have more meetings, then it should not limit its deliberations to be time bound. She had quite a few inputs on this section.

She discussed the investigation and gathering of information for purposes of expropriation. Sakeliga proposed that there should be subjective elements that should also be determined including financial and sentimental significance to the owner. The assessment should not just be an objective assessment. She knew that there were issues around land that was potentially stolen but there were also properties where people had farmed for generations, or it was communal land that was sentimental to that community. Those were subjective elements that should possibly be taken into consideration because land was such an emotive issue.

She discussed clause 5 (2). It stated that ‘if the property is land’. There was no direction in the subsection if it was not land. What process would then be followed? Who would value something that was not land? What necessary skills and expertise were going to be utilised? The Bill was explicit around land and the way the processes would unfold if it was land. There was no clarity anywhere if it was not land. She thought that was a lacuna in this Bill. That was why the definition of property had to be brought down to just land and immovable assets. The Bill did not adequately address the processes of expropriating something that was not land.

She addressed clause 5 (2)(a)(i). It stated, ‘enter upon the property with the necessary workers, equipment and vehicles at all reasonable times or as may be agreed to by the owner or occupier of the property’. She believed that ‘occupier of the property’ was a grey area. She thought it should be the owner at any time and not just the occupier. Sakeliga said that where it said viewed ‘at all reasonable times or as may be agreed to by the owner’ it should say ‘and’. It was saying that if it was not at a reasonable time then the expropriating authority needed the owner’s consent but if it was at a reasonable time then the expropriating authority did not need the owner’s consent. The ‘or’ needed to be changed to ‘and’. There was no way someone should have unfettered access to someone’s land on the basis of the fact that it was a reasonable time.

She addressed clause 5 (2)(a)(v). It said, ‘insofar as it may be necessary to gain access to the property, enter upon and go across another property with the necessary workers, equipment and vehicles’. In other words, if the expropriating authority may access property by going over someone else’s property. This was saying that the expropriating authority did not need to get permission from that owner of the property. That was an issue as well. The expropriating authority could not just travel across a property to have access to another property. Permission needed to be sought under clause 5 (2)(a)(v).

She addressed clause 5 (2)(b), the authorising of a value for purposes of ascertaining the value of a property. Land valued for land reform must be done according to the Property Valuation Act by a Valuer-General and that should be allowed for up to a period of six months. If this property was being expropriated and being used for land reform, then it had to be valued by a Valuer-General. Otherwise, this Bill trumped the Property Valuation Act. The Committee needed to work out whether it was going to use the Property Valuation Act or if it was going outside of that Act. There was a bit of a disjuncture between this Bill and the Property Valuation Act if the land was for land reform. If it was not for land reform, then that did not apply. If the purpose was for land reform then the Bill needed to follow the Property Valuation Act, bearing in mind that there was a six-month time period where the Valuer- General was to value that property and that might delay the entire process. That would also affect timelines. This issue needed to be considered.

She discussed clause 5 (4). There was a whole lot of information that needed to be provided. The Parliamentary Legal Services needed to check whether or not clause 5 (4) complied with the POPI Act because that could have a bearing on the information that was shared and given. She discussed clause 5 (5). It stated that an expropriating authority must by written notice call upon the following persons to furnish in writing within 20 days. That 20-day period might be too short for compliance with the information. She thought that the 20-day period should be slightly extended. If the property was land, there were a whole list of people that needed to be consulted. What if it was not land? There was no other clarification on anything else that should be consulted for. This whole clause applied to land and there should be a separate clause that dealt with other property. There was no consultation mechanism for the owner of the property whose rights were the most affected. The consultation in the clause was with all sorts of other people. Nowhere in this clause was there consultation with the owner. Somewhere in this clause the Committee needed to include consultation with the owner.

She discussed clause 5 (6)(b). It stated that if ‘the person contemplated in paragraph (a) fails to comply with subparagraphs (i), (ii) or (iii) of that paragraph, the owner or occupier of the property may refuse that person entry to the property’. Refusal by the owner was only on those grounds. It actually supersedes the permission required under clause 5 (2) (a)(i). This should be above the general consent that was granted. There were two requirements for consent that did not necessarily marry. The Committee needed to make sure that general consent was a requirement then above that, if an individual did not have the requisite documents then owner could refuse them to come onto the property. The Committee needed to make sure that it was a lot clearer.

She discussed clause 5 (7), if the property was damaged in the performance of an act. There were many inputs made that said it cannot just be property. The owner of the property might suffer damages. For example, if it was a farm and a gate was left open by someone coming to do an evaluation and all the owner’s livestock ran away then that was a loss. It was not a loss to their physical property, it was a loss to the owner. What constituted damage? If the owner suffered damage, then they should be entitled to compensation. Subsection (7) also stated that ‘the expropriating authority must repair to a reasonable standard, or compensate the affected person’. Who determined the standard? Who determined the quantum for damages? There should be a stipulation that qualified people were brought in to determine that. There should be some baseline that was established at the outset of this investigation. Then experts would be needed to verify either the extent of the damage or the quantum of the compensation. That was to protect the State and to ensure that owners were not trying to benefit unduly.

She discussed clause 6 (3). The municipal manager was given 20 days within which to deliver the written response. What were the consequences for not responding within the 20 days? What consequences did the municipality face if it did not meet the 20-day requirement? It materially affected the process of the expropriation.

Ms Hicklin said that Ms Graham covered all of the issues that she was going to raise on clause 5.

The Chairperson said that she may partially agree with Ms Graham on clause 5 (7), on who would evaluate the damage so that Government was not taken for a ride. There needed to be an addition there that a respected, independent body, would be the one that identified how much would be refunded in terms of damages. Something needed to be added on that clause.

The Chairperson asked Ms Ngema if she wanted to add anything on clause 5?

Ms Ngema said that an official from the State Law Advisor should be brought into comment. For her, the issues were on the limited timeframes and what guided the Department to give the limited timeframes considering what went into these tasks. Perhaps the time should be increased taking into account the administrative needs and ensuring that there was compliance. If people did not follow the timeframes then what would then happen?

The Chairperson said that the Committee would also look at this clause again next week. The Chairperson asked the Committee to deal with clause 6.

Adv Shaun van Breda, Senior State Law Adviser, OCSLA, said that most of the concerns raised would have to be responded to by the Department as it was best placed to address those issues. He was in agreement with Ms Ngema’s input.

Clause 6 – Consultation with municipality during investigation

Mr Denyssen read through clause 6 of the Bill.

The Chairperson said that Ms Graham had already indicated her input on clause 6 (3) and the number of the days. Ms Ngema and Adv van Breda had also spoken about the issue of the days. She opened the floor for members to make contributions on clause 6.

Ms Graham said that it was not about the issue of the 20 days because there could be a reasonable time that could be agreed upon in terms of Section 25. Her question was really about the implications and repercussions if there was no response from the municipality and it had a material impact on the expropriation and the costs incurred. There needed to be some sort of repercussions if people were not adhering to timeframes.

The Chairperson asked if there were any other comments from members or Ms Ngema on clause 6? There were no other contributions. Ms Graham raised crucial points. What would happen when the municipality did not respond? What measures would be put in place? The Department ought to come up with responses especially on the issue of time and all the questions that the members had raised. She hoped the representatives of the Department had noted all of the concerns raised by members. In the next meeting the Committee wanted the Department to bring in their legal team to be part of the meeting. If there were any legal issues, then the Department would be able to assist.

The Chairperson appreciated the members robust deliberations on this important Bill. If adopted by Parliament, and signed in by the President, it will show that the current Government was ready to transform the country. Parliament had the power to enact laws and legislation that would enable the Constitution. This Expropriation Bill was one of those laws. It was repealing the Expropriation Act. That was very important and crucial. The Committee would come back next week. The Committee was not yet through with the Bill. The Committee would still be discussing further, and the members would present their party positions on this important Bill.

The Chairperson thanked the Parliamentary Legal Services, the Department and the OCSLA for assisting with this important Bill. Next week the Committee would only be dealing with the Bill and would deal with the minutes in another meeting. The Committee had only completed clause 6 and had many clauses to go through. This was just the beginning. The Committee would need a third meeting. It would also need to deal with this Bill in this quarter. The Chairperson appreciated all of the members’ inputs. She pleaded with the members that in preparation for next week the Committee would be starting with clause 7. The members should be ready to deal with clause 7 in the next meeting. The members should really prepare themselves.

The meeting was adjourned.