In this virtual meeting, the Committee continued its clause-by-clause deliberations on the Expropriation Bill. The Committee discussed clauses 7, 8, 9, 10 and 11. These covered the Notice of intention to expropriate, Notice of expropriation, Vesting and possession of expropriated property, Verification of unregistered rights in expropriated property and Consequences of expropriation of unregistered rights and duties of expropriating authority.
Members of the Democratic Alliance argued that this was not a land reform Bill and that its purpose was to be the law of general application to allow Government to expropriate property for public purpose and public interest.
The ANC disagreed with the DA. Its members highlighted that the Bill was trying to reverse the brutality of the injustices of the past. They pointed out that this Bill was part of the ANC-led Government’s programme to give people land that was taken away from them to be in the hands of the State and be used for public purposes. The Bill was a true reflection of what people had been saying to the Committee since it started to receive submissions. The majority of people have reflected that they wanted the State to expropriate land. Any person who was affected by the Bill who may not agree had Constitutional rights to approach the court.
An area of concern was the definition of property in the Bill. The DA and FF+ urged that the Bill needed to have a narrow definition or property. To support this, they said: the processes that were defined were only around land; no other kind of property was being dealt with in as much detail as land; there was a complete lacuna in the Bill on the processes required for Government to expropriate any other property other than land; there was no definition of land in the Bill and there was no clarity on what constituted land and then there was this broad concept of property.
The Parliamentary Legal Advisor advised the Committee that Section 25 of the Constitution stated that property was not only restricted to land. Any other expropriation that would occur in terms of any other legislation would be guided by this specific Bill once it was enacted. This was a specific portfolio of an Act that dealt with all kinds of expropriation without only restricting it to land, as some suggestions were saying. It might be an issue, legally speaking, to narrow down the definition of property to only land.
The DA was unhappy about the disparity between the time periods provided for expropriating authorities and expropriated owners, holders. It argued that this would give rise to unfairness.
The Office of the Chief State Law Advisor clarified that Clause 8 was in fact very similar to what was provided for in the existing Expropriation Act. Clause 7 was a new insertion. Both Clauses concern administrative justice as contemplated in section 33 of the Constitution as well as PAJA, where it dealt with the fact that there needed to be procedural fairness.
Concerning clause 9, the Parliamentary Legal Advisor raised a question that the Department had to respond to. This concerned what would happen once the property was taken in possession by the State.
The Chairperson welcomed all those in attendance to the meeting. This was an important day in the history of South Africa. The Committee was dealing with a Bill that sought to repeal one of the Acts made by the previous, apartheid government. The Committee should at no stage think that it was doing something wrong when it was dealing with this Expropriation Bill. The Committee was doing what the Constitution in section 25 (9) said, that Parliament must enact legislation referred to in section 25 (6). section 25 (6) stated that, ‘A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress’. What the Committee was doing in dealing with this Bill is what was stated in the Constitution. The Expropriation Act 63 of 1975 was not comparable with the current Constitution. The Committee was not doing anything wrong. The Committee was trying to redress the imbalances of the past. Last week when the Committee went through the Bill clause by clause it went up until clause 6. Today, the Committee would start with clause 7. The Committee would only be dealing with the Expropriation Bill today. It would not be considering minutes or any other matter.
The Chairperson handed over to the Content Advisor to take the Committee through the Bill clause by clause.
Consideration of the Expropriation Bill clause by clause
Mr Shuaib Denyssen, Committee Content Advisor, took the Committee through the Expropriation Bill starting with clause 7.
Clause 7 – Notice of intention to expropriate
Mr Denyssen read through clause 7 of the Bill.
Clause 8 - Notice of expropriation
Mr Denyssen read through clause 8 of the Bill.
Ms S Graham (DA) noted that in the Chairperson’s introduction she stated that this Bill was being affected to deal with section 25 (6) and (7) of the Property clause in the Constitution. She clarified that the purpose of this Bill was not a land reform Bill. The purpose of this Bill was to be the law of general application in terms of subsection (2) of the Property clause. The net effect of it may be that it addressed the issues of subsection (6) and (7) but that was not the purpose of the Bill. The purpose of the Bill was to be the law of general application to allow government to expropriate property for public purpose and public interest. It was not a land reform Bill. There were land reform Bills that had been done in terms of subsection (9) that addressed those issues. She wanted to clarify that because it changed the way the members dealt with this Bill and thought of it. The purposes of this Bill were to give government the power to expropriate property. Government would literally be able to take property away without consent for the furtherance of its own objectives. That was important and removed a lot of the emotional discussions around the Bill. It was not about land reform. It was about government’s purpose as a whole in terms of achieving its objectives.
The Chairperson interjected and noted that Ms Graham was trying to discuss her opening remarks. Unfortunately, that was Ms Graham’s view which did not take away from the fact that the major reason for this Bill was to repeal Expropriation Act 63 of 1975. It was formulated by a government that had discriminatory laws. Those laws disadvantaged the majority of South Africans. She did not agree with Ms Graham saying that this was a law enabling government to take properties because it wanted to do whatever it wanted to do. She would appreciate it if Ms Graham focused on the issues she wanted to raise in relation to clause 7 and clause 8 of the Bill.
Ms Graham discussed clause 7 (2)(g)(i), (ii) and (iii). Were objections given any weight or were they merely considered? From the other clauses in this Bill, it appeared that the only determinant of whether or not an expropriation would take place was based on a lack of consensus around compensation. But what about valid objections? Subsection (7)(a) spoke about a lack of census on compensation and then subsection (7)(b) was the only place where it referenced not proceeding with the expropriation. It appeared that objections and submissions had no impact on the decision to expropriate. That was a problem because there could be valid reasons why a property should not be taken. There were also recommendations that this section should be part of the investigation and not happen after the decision to expropriate. Surely objections and submissions around the expropriation would have more impact and weight in the investigation phase of the process than after the decision had already been taken. This section dealt specifically with the notice of intention to expropriate. An investigation on the qualities of the property and the usefulness should have already been conducted prior to this notice going out. The Committee needed to look at whether or not these objections and submissions could be included earlier and whether or not they would carry any weight. If there were valid objections would that be cause to determine not to proceed with the expropriation? In that same subsection it again said a postal address and a facsimile number. She believed that facsimile should be removed, and electronic media should be included. For example, if there was an expropriation happening the expropriating authority could set up a website where people could submit an online objection. There were mechanisms other than using a postal address and a facsimile number. The Bill should include all forms of electronic media that would be legally acceptable in forming part of the process.
She discussed clause 7 (2)(h)(1)(i). It did not make sense that the owner of the property should be making the first offer to the expropriating authority via a claim for compensation. Surely if the expropriating authority had done its due diligence and had completed all the investigations into the property then they would be in a position to make an offer based on the information at their disposal. At this stage they would have appointed valuers, they had all the documents the owners had as well as any valuations that the owner had done. In terms of a recent land court judgement, the starting point of any negotiation should be market value. Why would the owner make the initial claim? Surely a notice of intention to expropriate should come with an offer from Government. This placed an onerous task on the owner of the property who had just been told that their property was being taken. Now the owner had to decide how much they were entitled to. That needed to be changed.
She discussed clause 7 (2)(i). This full clause was repeated verbatim in clause 8 (4)(f). Why was it repeated? She noted that clause 7 (3) stated, ‘if the property contemplated in subsection (1) is land’. As far as she was concerned the Bill needed to have a narrow definition or property. The processes defined were only around land. No other kind of property was being dealt with in as much detail as land. She did not understand including the song lyrics that she wrote because that was her intellectual property, and which was available for expropriation. If the property was not land, who else would need to be included? For example, if Government was expropriating a trademark then who would need to be included? There was a complete lacuna with respect to the processes required for Government to expropriate any other property other than land. There was no definition of land in this Bill. There was a definition of property in terms of section 25 of the Constitution. Section 25 said that property was not exclusively land. There was a definition of a ‘land parcel’ but nowhere in the Bill was there a definition of land. Does land include the buildings? Does it include improvements? Does it include the crops? Does it include the moveable assets that were on the property? None of that was specified in this Bill. There was no clarity on what constituted land and then there was this broad concept of property. She believed that the Committee needed a narrow definition of property for the purposes of this Bill. The Bill should define land, the improvements on the land, the value of the property and its economic capacity. All of that needed to be incorporated into a consideration around expropriation.
She discussed clause 7 (4). This was saying was that there was no onus on the expropriating authority to ensure that the owner had received notice. It was left up to them to possibly spot it in a newspaper and then there was a 30-day notice period in which to respond. An owner must be notified. There could not be an ‘or’ if they had not been served. It cannot be left to chance. If a notice was not sent to the owner then that section needed to be removed from the clause. This section should form part of the investigation phase and not during the notice of intention to expropriate. Much of the information gleaned in this process would be used to determine whether or not it was viable to expropriate the property. It would form part of the decision-making before the property was actually determined to be viable for expropriation. The expropriating authority should make the offer of compensation and not the owner.
She discussed the timelines mentioned in clause 7(6) and clause 7(7). Government’s responses were required to be done timeously or within a reasonable time. Whereas everyone else, except for the 40 days in subsection (7)(a), had to respond within a set number of days. Surely, the same timeframes should be given to both parties? It should either be a specified number of days or within a reasonable time. It cannot be that government had more freedom in terms of the timelines than the owners and rights holders. Government had more resources at its disposal than an ordinary owner of a farm who had to run around and get all of the relevant documents. Those timelines needed to be reviewed in terms of fairness to all parties concerned. The timelines were also confusing. There was a notice of intention, there were 30 days for holders of rights and owners to respond with the claimed amount. The expropriating authority then had a timeous period to consider everything in terms of submissions and objections. Within 20 days of receiving the statement on the claim, the negotiations on compensation needed to be started. However, if they did not agree on the compensation within 40 days then the expropriating authority could proceed or not. This effectively gave them 20 days to negotiate the compensation which was the only basis on which the expropriating authority would decide whether to proceed or not with the expropriation. Then the Bill mentioned reasonable times for the rest of the process bearing in mind that currently the expropriation could take place without consensus on the compensation including the vesting of the property in the expropriating authority. These timeframes were very preferential to the expropriating authority. The expropriating authority was given so much more leeway than the expropriated owner. There was definitely an imbalance with respect to the fairness of the entire process with regard to timeframes.
She discussed clause 7 (7)(b)(i) which stated that if the expropriating authority decides to proceed to expropriate, it must serve a notice of expropriation within a reasonable time. There should be no expropriation without consensus on compensation. Expropriation was already non-consensual. There must be agreement on how it was to proceed. This determination of whether or not to proceed and whether or not it agreed with the compensation was not acceptable. The expropriation should not go ahead until consensus was agreed on the compensation. That was hugely unfair.
She moved on to discuss clause 8 (3)(h). The Democratic Alliance recommended that this subsection be removed. The property should not be expropriated until compensation was agreed to. Otherwise, an owner would be left with no property and no compensation who had to then approach a court to fight for just and equitable compensation. Access to the courts should not be post-expropriation because that would be unfair to the person trying to claim just and equitable compensation. It would be contrary to the Constitution in terms of just and equitable compensation. It would be almost impossible to reverse an expropriation once control, and ownership had been vested in the organ of state. The owner would be unable to enforce their rights. This was extremely unfair and prejudicial to the owner of the property that was expropriated. It removed the court process from the negotiations because it could continue after the negotiations and the property was already vested in the expropriating authority. How was the owner able to approach the court and take on the Government when the owner had absolutely nothing to their name? The agreement of compensation has to be agreed to before expropriation took place.
She believed that clause 8 (4)(d) should be amended to read, ‘agreed to compensation’ because at this stage compensation should have been finalised. This was the notice of expropriation. The decision had been taken to expropriate; the compensation should not be in an offer stage at this point. It should have been agreed to.
She discussed 8 (4)(f). It should read, ‘when finalising compensation’. When a decision had been taken to finalise expropriation then all negotiations should be over.
She discussed clause 8 (5). She did not understand the point of 5 (a). There was no reason why the state could not provide individual notice to each owner and holder of an unregistered right, especially if there was going to be separate offers. The offer formed part of the notice so why would Government do one notice with separate offers? She believed that subsection (5)(a) was redundant. That clause needed to be reworked so that it made more sense.
Ms M Hicklin (DA) said that a lot of her points were covered by Ms Graham. She discussed clause 7 (2)(h)(1). It spoke about the names and addresses of unregistered rights. She went over the notes that the Committee had taken during public hearings. The Committee received a lot of input from tribal landowners and traditional councils. Would these unregistered rights and particulars of owners of properties fall under the traditional land claimants? So many of the land claims that had been lodged, as far back as the 1980s, had not been attended to. These people claimed to be the owners of these pieces of land, but these land claims had not been registered. They had not been attended to. So many of the traditional land claimants were saying that their claims had not been attended to and that their pieces of land had not been returned to them. Did they then get their pieces of land back in terms of this expropriation without compensation? The Committee heard this in Limpopo. The Committee heard it in Mpumalanga. Traditional councils felt completely and utterly overruled. They had unregistered rights to pieces of land. They claimed to have pieces of paper. Many came to the hearings with bundles of paper and said that they were the owner of that land. Were they going to be given rights to the land that they claimed that they owned? Were they going to be listened to? Will they be given back the land? Would they be given the natural resources under the topsoil that they had? Would they be acknowledged in the same way that the Government would be acknowledged? Would the tribal authorities and the traditional land claimants be looked on in the same way as the expropriating authority? Many of the traditional leaders felt that they had been overlooked by the very Government that was trying to now take land away. They did not have proof that the land belonged to them. What kind of redress did they have? It was not only the expropriating authority that had to be protected in these matters. One of the things highlighted by many of the tribal councils, by many of the traditional leaders, was that this process opened the door to lots of abuse by government at the expense of tribal landowners. It had to be prevented at all costs. It was not a case of ‘us and them’. It was a case of South Africa belonging to all who live in it. Tribal landowners had to be protected as much as everyone else. Nothing had been done to protect the tribal landowners even after 1994. The ANC Government offered tribal landowners protection, but they felt disempowered.
Ms A Siwisa (EFF) said that when clauses 7 and 8 were read there were a few questions that came to her mind. The state should be the custodian of all land and property in South Africa. What did the Bill say about if a property had been identified for a certain purpose and the owner refuses to give up the property? Did the Bill make provision on which land needed to be expropriated? Were there criteria in the Bill to state that a specific property or land had been identified for expropriation? Was there any provision on that? Did the Bill make provision for property valuation? The Bill said that Government or the accounting officer would come with an offer for how much it would give for a specific property. Was this property evaluated or was it just an offer that Government was going to come up with? Did the Bill say anything about when a property was being expropriated that the building on the property could not be demolished? She was focusing on buildings that were in good condition. There were certain properties with buildings just sitting there and some buildings had been sold to certain people for a very low amount of money. Yet, government had a shortage of buildings to provide for Departments all across South Africa, regional and provincial offices. If a certain building was identified as being in a good condition, was it going to be demolished or was it going to be used as it was? Did the Bill make provisions for what the reasons were for expropriation of certain property or land? She saw in the Bill some loopholes. It was better if the State was the custodian of all land and property within the parameters of South Africa.
Mr E Mathebula (ANC) welcomed the input the Chairperson made at the beginning. If the members followed the Chairperson’s input they would be able to understand the content of the Bill instead of the Committee quoting the Bill out of context. Any legislation that was in conflict with the Constitution would not stand any test before the courts of the country. The Bill was in line with the Constitution, which was the supreme law of the country. He discussed what the members of the DA did not understand about the Bill. Section 25 of the Constitution was clear. It stated that, ‘No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property’. This meant that the State could not expropriate the land or any property without consultation with the person from whom the property was expropriated. The Bill spoke about giving notice of the intention to expropriate to the owner of the property and the holder of the rights to the property. It also gave that particular person a notice to expropriate. It did not end there. It said that in an event that that the person did not agree with the intention, the person had a right to challenge the intention of the expropriating authority. It stipulated the number of days. There was no way, as Ms Graham said, that a person would not be notified of the receipts of their objection to the notice of expropriation. The owner would obviously be notified. It was just a question of interpretation of the Bill. The Chairperson - in her opening remarks - also spoke about section 25 (6) of the Constitution. This particular subsection spoke about the redress of the injustices of the past, which this Bill was talking to. This Bill was trying to reverse the brutality of the injustices of the past. This Bill was part of the pieces of legislation that spoke to land reform. To reform something meant to change something from what it was to be something else. In this particular instance, if land was owned by a particular person and the state saw that it was in the interest of the public to expropriate that land then that meant the State was reforming the land. The land was being reformed from the owner to the State. He found it difficult to agree with the member who said that this was not a land reform Bill. This was the only programme that the ANC-led government could use to get people to have land that was taken away from them to be in the hands of the State and be used for public purposes. The Bill was a true reflection of what people had been saying to the Committee since it started to receive submissions. The majority of people have reflected that they wanted the State to expropriate land. As a democratic state, government was not going to do this arbitrarily.
He discussed Ms Graham’s comments that the offer needed to be made by the state and must not be made by the person from whom the property was being expropriated. South Africa was a democratic State. Unless she was living in the past when there was no consultation, the State told the owner to provide an offer. In the event that the state disagreed with an offer then the state and the owner would engage with one another so that an amicable agreement was reached. Section 25 (3) of the Constitution spoke about the amount of compensation, time and the manner of payment that had to be just and equitable, ‘reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances’. It further speaks of any improvement on the land. In terms of the law of property, anything that was attached to the land was part of the property. That meant that when the state was going to compensate that particular individual it had to take into consideration what were the improvements that had been made on the land.
He found it very disturbing when Ms Hicklin said that the ANC had not taken consideration of or had not protected tribal land. That was untrue. When the Committee went province to province, tribal leaders were invited to form part of the meeting. Tribal leaders were allowed to make an input. Tribal leaders were given time to speak and express themselves. In no way could anyone say that tribal land had not been protected. There had been instances where the very same opposition parties had said that land was not being used by the tribal leaders. It had been the ANC who had always been at the forefront to ensure that the land that belonged to the tribal authorities was protected, were not being misused and that there was no unfair attack coming from the State. The ANC had protected the tribal land against the DA whose intention it was to use the issue of land to canvass for votes for elections. In no way would he agree with the member from the DA.
Ms S Van Schalkwyk (ANC) said that she had been broadly covered by the inputs of Mr Mathebula. She reiterated that the Committee should be careful not to confuse this Bill, and sections of this Bill, with the Communal Land Tenure Bill. Many inputs that had been made directly dealt with that bill. She was not going to delve into those issues. There were a few inputs on the removal of certain clauses of the Bill. She opposed that because this might be a total change of the intention of the specific clause unless the Committee reached consensus on those items. She was not in favour of the removal of any clauses.
She discussed traditional leaders being disadvantaged. She recommended that the Committee had to look at the Communal Land Tenure Bill. If Government did not want the abuse of traditional leadership and wanted to protect the traditional leadership then it needed to take into consideration of the Communal Land Tenure Bill.
Ms L Mjobo (ANC) said that both clauses were created in transparency and set parameters. It allowed for compensation and the protection of owners. It allowed owners to legally dispute the expropriation. Even municipalities needed to be consulted. This was in the public interest, and it demonstrated that this Bill was not about the nil compensation.
The Chairperson asked the members to write down the issues that they had raised in the meeting. The members should write them down and send them to the secretary so that it could be taken into consideration when the Committee compiled the report. It was clear that government was favouring the owner more than anyone else. The owner was the one who decided on the value. She noted that the Office of the Valuer-General dealt with the valuation of the property. There had been many rights that had been given to the owner. The owner also had the right to appeal in the end if the owner was not satisfied with what was presented by the expropriating authority.
She discussed the issue of the traditional leaders and the traditional councils. There had never been a government in the history of South Africa that recognised and still recognises the traditional councils as much as the ANC government. Traditional leaders had all the rights to say what they wanted to say to deal with their land under their jurisdiction. It could not be said that government did not consult the traditional leaders. When the Committee started this Bill, traditional leaders were given time to discuss this in their house and present their views through written and oral submission. The traditional leaders were also part of all the hearings as Ms Hicklin had said. Everyone would have fears when a new Bill was being brought in. This new Bill was to the benefit of the majority of South Africans.
The Chairperson asked the Parliamentary Legal Advisor to comment on the issues raised by the members?
Ms Phumelele Ngema, Parliamentary Legal Advisor, Constitutional and Legal Services Office, commented on three matters that were legal issues. All the other questions that were raised were related to policy and spoke to the implementation of policy. The Department should be the one that answered all the questions, especially the clarity-seeking questions and the policy questions that were raised. She discussed the Expropriation Act in light of what had been said against section 25 of the Constitution. Once this Bill became an Act, it would be the law of general application that applied to all kinds of expropriation. Section 25 did state that property was not only restricted to land. Any other expropriation that would occur in terms of any other legislation would be guided by this specific Bill once it was enacted. This was a specific portfolio of an Act that dealt with all kinds of expropriation without only restricting it to land, as some suggestions were saying. It might be an issue, legally speaking, to narrow down the definition of property to only land. It would be an issue because this was a general Act that dealt with all kinds of expropriation and all kinds of property that will be expropriated. The second issue she wanted to discuss was about restricting the Bill to only the expropriation of land and not other things. The Bill outlined the process of how when an expropriating authority intended to expropriate it may be any kind of expropriation. She discussed the issue of re-enactment and repeal. The Chairperson had consistently pointed out that this Bill sought to look at existing legislation from the apartheid government. Some of the provisions that appeared in the Bill were actually, to some degree, either very similar or have been worked on to ensure that they aligned with the Constitution as a new enactment that would come into being. Issues that were raised in clause 7 were issues that were already in the existing Expropriation Act of 1975. Those were the three things that she wanted to speak to. All of the other questions should be answered by the Department because they spoke to policy. The Department were the ones who knew the background, where it came from, and why the Committee was here today.
Adv Shaun van Breda, Senior State Law Adviser, said that he was in agreement with Ms Ngema. Clause 8 was in fact very similar to what was provided for in the existing Expropriation Act. Regarding clause 7, there was no corresponding clause provision in the Expropriation Act, and this was something additional, where there may be negotiations with the owner or the holder of rights prior to expropriation. The clause dealing with the notice of intention to expropriate was something new that the Bill introduced. There was a concern raised that there was disparity between the time periods provided for expropriating authorities and expropriated owners, holders. It was said that this would give rise to unfairness. Clauses 7 and 8 concern administrative justice as contemplated in section 33 of the Constitution as well as PAJA, where it dealt with the fact that there needed to be procedural fairness. The Committee should also consider clause 25 of the Bill where all the time periods prescribed in the Bill may be extended. The concern raised was a valid concern, but the Committee should also consider the content of clause 25. There was also concern raised that there had to be agreement with regards to compensation before proceeding with expropriation. He drew the Committee’s attention to the Constitutional Court judgement of Haffejee vs eThekwini Municipality where the Constitutional Court held that it was not necessary for all compensation to be determined prior to expropriation. However, in those instances where compensation was determined after expropriation, it had to be done as soon as reasonably possible. There were a number of concerns raised, which he was in agreement with Ms Ngema, that concerned policy and it would have to be the Department that responded to those concerns.
The Chairperson thanked Ms Ngema and Adv Van Breda for responding to some of the issues that were raised by members. It needed to be appreciated that the Government had in this Bill introduced clause 7, which was the notice of intention to expropriate. This provision was not there before in the previous Act.
Clause 9 - Vesting and possession of expropriated property
Mr Denyssen read through clause 9 of the Bill.
Ms Siwisa wanted a clearer explanation on clause 9 (1)(c), which dealt with temporary expropriation.
Ms Graham discussed clause 9 (1)(a). When the Bill was before Nedlac they removed the phrase ‘released from mortgage or material bonds if applicable’ under the extension of this subsection. There was no reason given as to why it was removed. She thought that this should still form part of this clause. When vesting and possession happened there needed to be some level of engagement with the bond holders. Even the Banking Association of South Africa raised the issue that the banks and mortgagees were excluded from the expropriation engagements. Bond owners were also deemed to be owners. That was a gap in the Bill that was concerning.
She discussed subsection (2); it spoke about the damage to the property. The National House of Traditional Leaders, in their submissions, asked who would determine the baseline on which that was based and how would it be done? Who would determine the extent of the depreciation and on what basis? Sakeliga pointed out that section 13 of the Constitution stated that everyone was guaranteed the right to not be subjected to slavery, servitude or forced labour. Sakeliga felt that by ensuring that a person whose property was going to be expropriated was forced to continue working the land in order to disallow for depreciation might constitute a non-compliance with that section of the Constitution. Sakeliga thought that it would be unconstitutional. She thought that it might be a stretch, but it did not detract from the issue that the State was forcing people to continue working on a property that they no longer had a vested interest in. Although there was some mitigation in subsection (5), it did not mean that the Committee should not be mentioning this fact.
She discussed clause 9 (3)(c). It stated that the ‘expropriating authority must compensate the expropriated owner or expropriated holder’. Who would determine the value of the compensation? How would it be determined? When would it be paid? Those were the biggest concerns she had with that section.
Ms Hicklin said that she had been covered. Her only issue was in terms of working the land, if one had a mortgage and in terms of the payment of municipal property rates, taxes and other charges.
Ms Van Schalkwyk discussed clause 9 (1). It dealt with the expropriation of property and stipulated that registered and unregistered rights vested with the expropriating authority or with the person on whose behalf the property was expropriated. It made for the provision for the exclusion of rights registered in terms of the Mineral and Petroleum Resources Development Act (MPRDA). The MPRDA already dealt with the related matters of mineral and water rights. These were sufficiently covered by legislation. She felt that it should not be tampered with.
She discussed clause 9 (5). There have been a number of progressive land reform policies designed to ensure that there was productive use. The proactive land acquisition strategy had a beneficiary selection and land allocation policy. There was a separate piece of legislation on communal land tenure that would be introduced in Parliament. The Communal Land Tenure Bill would be crafted in such a manner so to ensure that it embraced the district development model. That would be in accordance with Spatial Planning and Land Use Management Act (SPLUMA) under the Presidency. It was important to note that in respect of agricultural land, the President had announced the establishment later in the year of the agriculture and land reform development policy. Taking into account prospective legislation and what was currently in this specific Bill, everything would be sufficiently covered in terms of what needed to happen.
The Chairperson asked the legal team to respond to Ms Siwisa’s pointed question. It was on the temporary expropriation.
Ms Ngema explained that it was related to clause 22 which was the urgent expropriation. There were specific grounds that were mentioned within that clause as to when urgent expropriation took place. It took place within specific conditions. For example, when there was an unnatural disaster or a disaster like the covid pandemic and properties were required to deal with those instances. Unless she was wrong, it related to clause 22 and urgent expropriation matters.
The Chairperson raised a concern. The Committee had asked the Parliamentary Legal Services, the Departmental Legal Services and the Office of the Chief State Law Advisor to comment on the Bill and also on the issues that had been raised through written submissions, oral presentations and through public hearings. The Committee had a day when these three components presented their concerns and their comments. The Chairperson commented that when Ms Ngema interacted with the Bill it was as if it was for the first time that she had seen it. Ms Ngema was raising issues as if she had not seen them before when the Committee had asked her to respond and to comment. The Chairperson would allow Ms Ngema to raise her concerns. However, she was a bit concerned with the way Ms Ngema responded. Ms Ngema was deliberating just like the members that had to deal with the Bill clause by clause. It was as if she was not the person who had been given the chance to do that. The Chairperson wanted to raise that concern because she had seen it since last week.
Ms Ngema responded to the Chairperson’s concerns. She apologised. The issues she was raising were issues that she had already raised in her presentation. She was just giving more details. Her understanding was that this was the process so that when the Department provided the responses it would be clear what the issues were that she had pointed out. The Department would also respond to the questions that Members were raising. That was the method she had been using. She was not raising new issues. It had all been outlined in other instances. In her presentation, she had said that when the Committee went through the deliberations, clause by clause, that would be where she would provide details. She apologised if it was felt that she was coming in inappropriately.
Ms Ngema raised her issues on clause 9. The issues on clause 9 did come out in her presentation. Clause 9 appeared to be incomplete as there were instances where it did not go any further in indicating exactly once certain things, that the section provided for, had taken place what would then happen. There were questions on perpetual ownership or perpetual holding by the state which the Department would have to explain in terms of taking forward the Bill and clarifying whether it would achieve what was intended in the policy. For example, where the expropriating authority was indicated that it would take possession there was an issue that needed to be clarified. Possession may not necessarily mean that it was ownership. It might be held in a restricted manner until a certain event took place. There were also other issues. Once the property was taken in possession by the state, what would then happen? These were the things that clause 9 needed to take further and explain. It was the provision that dealt with vesting and possession of expropriated property. Her view was that clause 9 was a bit incomplete and left certain things hanging without the clarity that was necessary.
The Chairperson said that one of the reasons the Committee went through all the three processes when it invited written submissions, had oral presentations and held public hearings was to invite input on how to improve the Bill. It was a Bill that was within the ambit of the law, but the processes were intended to improve it. That was why the Committee listened to all. It was a process for the Committee to improve the Bill within the ambit of the law. The Chairperson asked if the Department was ready to respond to the issues raised?
Mr Molatelo Mohwasa, Acting Deputy Director-General: Inter-Governmental Coordination, DPWI, said that he was with colleagues from legal and policy. He needed guidance from the Chairperson because it was a bit confusing. He was not sure how to come in especially with some of the issues that were raised and directed to the Department to respond. Last week, the Department had been observing as it was required to be part of the meeting just to observe. If there were issues that related to the Department for responses then it would then respond immediately if it had those answers. Or the Department could put something comprehensive together to respond to some of the issues that were raised. Last week, there were a few issues that were raised to the Department to provide clarity. The Department did have clarity on some of those issues. He wanted guidance from the Chairperson on how to deal with that. In terms of today, there were issues raised on clause 7 and 8. He was not sure if the Department was allowed to respond to those questions that it could immediately respond to now and those that it could respond to later. He wanted guidance in terms of that because he had colleagues with him who were not sure if they should come in or not.
The Chairperson thanked Mr Mohwasa for representing the Department. The Committee only needed assistance when there were items where direct explanation was needed. In this case it had been provided by Ms Ngema. Especially on the issue that was raised by Ms Siwisa. The Department also needed to compile responses so that once the Committee had dealt with the Bill clause by clause, it would then come in. The Department needed to note all the issues that had been raised by the members.
Clause 10 - Verification of unregistered rights in expropriated property
Mr Denyssen read through clause 10 of the Bill.
Clause 11 - Consequences of expropriation of unregistered rights and duties of expropriating authority
Mt Denyssen read through clause 11 of the Bill.
Mr P Van Staden (FF+) said that he was going to refer to clauses 7, 8, 9, 10 and 11 as a whole. Firstly, the State could not be the custodian of land and property alone. Private property ownership needed to be protected. Owners’ rights must be protected. The starting point should be that land was not stolen and that legal owners had a right thereto. The principle of willing buyer and willing seller needed to be valid with all land reform.
He discussed consultation with an owner of a property by giving notice to the owner or a person appealing against an expropriation notice. He had a problem with what was meant by the term ‘reasonable time’. The term ‘reasonable time’ could be anything. It could be 24 hours. It could be seven days. It could be a year. It could be 30 years. The term ‘reasonable time’ was a bit problematic. By accepting this Bill, the poor of the country would only get poorer.
Clause 9 was nothing more than a carrot that would be kept in front of landowners' noses. He was referring specifically to clause 9 (3)(c). It was forcing owners to maintain property that would be taken away from them, he was referring to clause 9 (3)(b). The State wanted to take a person’s land or property away but also wanted to force that person to keep investing money into the upkeep of that property. This would lead to a huge financial burden on such landowners.
He referred to clauses 10 and 11. It seemed like current landowners would be treated like criminals by the way they had to provide evidence and affidavits. Clause 11 (5) disturbed him: it stated that if an expropriated owner or expropriated holder knew of the existence of an unregistered right then they would be held liable. In this Bill, it seemed like Government would come down on the current landowners with force if the landowners did not comply with certain provisions. That was problematic for him. In the current form, this Bill was a danger for South Africa. The members needed to be honest with each other that in this Bill property was not limited to land.
Ms Van Schalkwyk said that she did not have any comments on the clauses. She responded to the comments made by Mr Van Staden that by accepting this Bill that the poor would only get poorer. That was against the main intention of the Bill. The Bill would be used for public purpose or public interest. Currently, the status quo was that the majority of the land was in possession of the minority of the country. She was strongly opposed to his statement. The majority of the citizens of the country did not own land. As a result, government focused on housing needs of the majority. Because of the issue of the minority owning the majority of the land, in some instances, a lot of land was being owned by one landowner. This was heard during the public hearings. For example, it was heard that one landowner owned more than 10 farms. It was land that was underdeveloped and not being used. In that instance it could not be correct that Mr Van Staden, or anyone, would say that this Bill would make the poor only poorer. The majority were the people who were working that land, but they did not have access to the ownership of that land because they were working for the landowners. The members should not politic in the meeting. This was an extremely emotive issue, the issue of land. Government wanted to give power to the majority of the citizens in terms of interests and housing needs. The majority did not have the land to do that. The members could not make it seem like the Bill was going to be a forced thing in terms of land dispossession.
Ms Graham said that the Committee had to be very careful. It was not legislating for the current government. The ANC members would be supportive of the government of the day. The members were not legislating for the ANC members’ political party’s governance. The members were legislating for whichever government was going to run this country. The Native Administration Act of 1927 proclaimed that it was intended to be for the better control and management of native affairs. In that Act, it said the only restriction on power for the Governor-General to forcibly remove people from their property was that it had to be deemed expedient in the general public interest. The members knew what happened with that Act. There were forced removals. It was all good and well to defend the motives of this Act. It was all good and well to defend the motives of the Government in promulgating this Act. The Committee needed to bear in mind that this would be implemented by whoever was the government of the day. If the Committee did not look at the clauses technically and did not take the emotion out of it and the need for redress, which was all covered by the Act, then it would lose sight of the fact that it was creating loopholes for forced removals in the public interest. The Bill has not clarified what public interest was. If government decided that it was public interest to steal the lyrics of a song then it could do that. The Committee was still going to discuss the arbitrary deprivation of land and the nil compensation clause. The Committee needed to guard against making this about political ideology at this point. The Committee needed to look at every single clause to make sure each clause was giving proper effect to what this Act was purported to achieve. She had no input on the two clauses.
She understood where Mr Van Staden was concerned that the owner had to bear the onus for not revealing. It was clear that if the owner was aware of the fact that there was a holder of a right and they did not disclose that they then bore the onus. That was important because otherwise Government would be unduly encumbered due to misinformation or information being withheld. She looked at that closely and thought that it created an undue onus on the existing owner. She did think that it was fairly extensively explained in order to ensure that it was only in the case where information had been withheld.
The Chairperson said that the members were in Parliament because of politics. The members were members of political parties. Whatever law this administration was trying to enact was coming from the political views of the political parties. The members were not politicking here. The Committee was trying to make correct what was made wrong by the previous government. In the previous government, there were politics there. It could not be that when ANC members, who were part of this Committee, were advancing their position it was labelled politicking. That could not be correct.
Ms Hicklin said it was inevitable that when a member discussed a view they were espousing their political aims. She agreed with Ms Graham that this particular Bill, as with any Bill that was passed by Parliament, did not only affect the people of the day. This Bill would last in perpetuity. It would last for years to come. The members needed to look at what they hoped to achieve, not only for today and tomorrow, but for the future. That was needed to guide what the Committee was doing. The members needed to look after the interests of themselves and their children but also their grandchildren too. When the members were looking at passing a Bill they needed to make sure that it was fair on all the children and the children’s children in perpetuity. While the Committee was looking to address the inequality of the apartheid Bill of 1975, the Committee could not make it that the Bill that was passed now became a Bill that would be a whipping tool in perpetuity. The Committee needed to look at something that was equitable and fair going forward. It could not be a Bill that became a tool of oppression in the future for anyone else. It had to look at appropriate rights across the board. The members needed to take the emotion out of it. Land was a very emotional word, and it was an emotional element of life because without land the individual lacked dignity. This Bill was not a land reform tool. It was a very difficult thing to define. This Bill was more than just land. That was the point she and Ms Graham had been trying to make for so long. When property was being dealt with in this Bill, it was more than just land. It was more than land that this Bill was dealing with. She did not have anything to say about these two clauses. The Committee needed to move beyond the word land here.
The Chairperson responded to Ms Hicklin. South Africa was seen as one of the countries that had the best Constitution. The reason for this was because time was spent developing a Constitution that would try and transform this country. It was known what the previous government did to this country. The scars ran deep. One of the things that the Constitution did was instruct the Government to develop transformative laws. That is what the Constitution said. With this Bill, the Committee was trying to do that. She wanted to remind the members that Government was trying to transform the country.
Mr T Mashele (ANC) responded to what the Chairperson and the other members had said. If everyone agreed that the existing Act was a product of the past apartheid government then the Committee should agree that it was able to change things via this Bill. Members would be failing in their responsibility as members of Parliament if they did not repeal the Act such that they were able to transform society. It was going to be difficult because there were those that represented the interests of the ‘haves’ and there were those who represented the ‘have-nots’. It could not be that 28 years into democracy, government was still failing to transform society and still failing to build public amenities because people wanted to protect the Act of the part apartheid government. If the members were serious about transformation, then they must transform society. One of the hindrance was that government could not build schools, could not build clinics. He appealed to Members to move towards each other and for the members to put themselves into the shoes of those who did not have.
Mr Mathebula responded to the Members who were crying foul about the emergence of this Bill. Parliament was empowered by the Constitution. There was nothing that was contrary to that. He read section 25 (5) of the Constitution. It stated that, ‘the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis’. The Bill being debated was a product of the empowerment given to the Committee and Department, as part of the reasonable steps and measures taken to try and redress the injustices of the past. He could not agree with Members who said the Bill, if it was passed by Parliament, would make the people of South Africa poorer. That was untrue. The conditions of the people of South Africa were going to change. Any person who was affected by the Bill who may not agree had Constitutional rights to approach the court. The judiciary could assist in this particular regard. South Africa was a democratic state which did not rule the courts. The courts were allowed to rule in terms of the law. The courts would also make sure that whatever pieces of legislation Parliament passed were not in conflict with the Constitution and which helped to enhance the lives of South Africans. That was the purpose of this Bill. He encouraged the members to engage properly and not catch feelings. The members needed to reach a stage where they were all satisfied with the Bill. Then the Committee could take it further to Parliament.
The Chairperson said that the Committee would move on to consider clause 12 of the Bill.
Ms Graham said that clause 12 would probably be the most contentious clause that the Committee would debate in the entire Bill. It was quite a big, comprehensive clause. She proposed that the Committee discuss each subclause separately because there was not a lot of time left in the meeting. Or did the Committee want to discuss the whole clause in one go? She proposed that the Committee discuss each subclause separately. She was also fine to consider the whole clause and go over time.
The Chairperson said that maybe the Committee should defer the discussion on clause 12 to next week because clause 12 was quite lengthy. Should the Committee start with clause 12 next week? With the amount of time left she did not think that the Committee would do due justice on this clause.
Ms Mjobo said that the Committee should start chapter 5, clause 12 next week.
Mr Van Staden proposed that the Committee start with chapter 5 next week. The Committee could then deliberate on clause 12 sufficiently. His concern was that if the Committee started now, it would not get halfway through even reading it.
Ms Hicklin agreed with the previous members. She thought it would be imprudent to even do it a subclause at a time because it was going to be quite a protracted discussion.
The Chairperson said that Committee would use the rest of the time in the meeting to deal with the outstanding minutes. The clause-by-clause deliberations of the Expropriation Bill would continue next, starting with clause 12. The Committee needed to look into extending the time. The Committee needed an extra day to deal with the Expropriation Bill. The Committee would not be able to finalise the Bill on 31 March. It was good that the Committee had not been given any time frames by Parliament in dealing with the Bill. The Committee needed to discuss, deliberate to ensure that the majority of South Africans were covered by this Bill. The Chairperson asked for the minutes to be presented.
Ms Nola Matinise, Committee Secretary, said that the Committee had requested two extra meetings for the clause-by-clause deliberations.
The Chairperson said that on 22 and 23 March the Committee would be dealing with the Bill as well. The Committee must be not at any stage pause the deliberations on the Bill. On all the available days the Committee needed to deal with the Bill and take it to its logical end. After the Committee was finished with the clause-by-clause deliberations then it would consider another item.
Consideration of the draft minutes of the Portfolio Committee on Public Works and Infrastructure dated 23 February 2022
Ms Graham moved for the adoption the minutes.
Ms Hicklin seconded the adoption of the minutes.
The minutes dated 23 February 2022 was adopted.
Consideration of the draft minutes of the Portfolio Committee on Public Works and Infrastructure dated 2 March 2022
Ms Mjobo moved for the adoption the minutes.
Ms Van Schalkwyk seconded the adoption of the minutes.
The minutes dated 2 March 2022 was adopted.
The Chairperson said that all the minutes dealing with the clause-by-clause deliberations would be dealt with once the Committee was through with all its deliberations. The Chairperson appreciated the Members' deliberations and the interest of their political parties. The members tried to ensure that the people of South Africa were protected and that the people of South Africa had transformative legislation. The Constitution was respected and upheld in all that the Committee was dealing with. She knew the interests that were driving the members’ deliberations on the Bill. She thanked the Committee Secretariat for their work. She thanked the legal teams for assisting and guiding the Committee.
The meeting was adjourned.
No related documents
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.