In this virtual meeting, the Committee continued with its clause-by-clause consideration of the Expropriation Bill. The Committee considered and discussed chapter 6, 7, 8 and 9 of the Bill. These clauses dealt with meditation, urgent expropriation, withdrawal of expropriation and regulations.
Members of the DA stated that the National House of Traditional Leaders was worried that there might be large disputes that would be referred to the courts and that this may place an unnecessary burden on the courts. The recommendation was that a specialised court be established to handle expropriation matters. This might be addressed by the Land Courts Bill that was being discussed in Portfolio Committee on Justice. If there were going to be courts that were established to deal with expropriation issues then there should be specialists who worked within those courts because it was a very specialised field of law.
The members of the DA noted that the Committee needed more clarity on the process of the mediation and what mechanisms people would follow for that. The members raised issue with respect to clause 22 of the Bill. The terms ‘urgent’ and ‘temporary’ were used interchangeably in this clause. Sometimes the Bill spoke of urgent expropriation and other times it spoke of temporary expropriation. Those terms meant different things. In the context of the various subclauses, they meant different things. Was this a clause for temporary use or was this a clause for urgent expropriation? That needed to be clarified. Concern was raised with clause 23, the withdrawal of expropriation. A member of the DA said that it was a horrible clause. It gave the expropriating authority the option to withdraw expropriation based on any cause. It said, ‘in the public interest’. Public interest, throughout the Bill, was a completely broad and undefined basis. It was also raised that in the Bill the power of the Minister was far too broad. Sakeliga in their submission said that this amounted to Parliament delegating its lawmaking powers to a single Minister. It was in conflict with the separation of powers. There needed to be more curtailment of the Minister’s powers. Anything that had a vague relation to expropriation was under the purview of the Minister. The recommendation was that there be a subclause that curtailed the Minister’s powers with respect to the Bill.
The members of the ANC said that the inclusion of clause 23 was very important and not horrible. The Bill addressed the matter of the expropriating authority making a withdrawal of the expropriation. Clause 23 (3)(c) stated that, ‘the expropriating authority is liable for all reasonable costs and damages incurred or suffered by a claimant as a result of such withdrawal’. That was fair enough. If the decision for withdrawal was taken, then the person from whom the property was expropriated would not be forced to take responsibility for something that they were not responsible for. The expropriating authority would have to take responsibility and pay reasonable costs and damages to that person. The members of the ANC felt that the power vested in the Minister was not stretched in this instance. It was sufficient and the Committee had to take into account that the Minister was the executive authority in this instance. The Minister may or may not delegate their authority. When a Bill became an Act it was located within a certain Department. When the Expropriation Bill became an Act it would be within the Department of Public Works and Infrastructure. The Committee could not say that the Minister of that particular Department, in which the Act was located in, could not be the one who has powers. There were many Acts and the person who had powers was the particular Minister. The members of the ANC did not understand why the Committee was questioning it in this instance.
A member of the ACDP stated that clause 23 was highly stacked in favour of the expropriating authority. In all cases, the Bill needed to move towards a situation of equity and of fairness. The withdrawal of expropriation was clearly stacked in favour of the expropriating authority. It was important that the expropriation authority engaged due diligence, a proper risk-benefit analysis when property was to be expropriated. A failure to do that would result in the withdrawal of the expropriation. When payment had to be made in terms of cost and damages that particular payment could be viewed as irregular expenditure because the expropriating authority failed to carry the necessary risk-benefit analysis.
The Committee agreed that there were issues that were still unclear in the Bill. The Department must explain in detail those issues. On 29 March, the Department would respond to all the issues that were raised. The Committee would then deliberate further.
The Chairperson welcomed the members of the Committee and all of those in attendance to the meeting. The Committee was continuing with its clause-by-clause deliberations and discussions of the Expropriation Bill. It was there to repeal the Expropriation Act of 1975. So far, the Committee had deliberated and discussed this in a very progressive and positive way. At no stage had the Committee experienced shouting. The members had always treated each other with respect in the Committee. She encouraged the members to continue doing so. Even when the Committee held public hearings, at no stage was the Committee in a situation where it had to ask the groups that were attending to not say certain things. The public saw the members of the Committee treat each other with respect. Today was the third day of the Committee’s deliberations. The Committee would be starting with chapter 6, having dealt with chapter 5 the previous day.
The Chairperson stated that the Committee wanted responses from those that were not present in the meeting the previous day. The Committee would still be receiving responses from the legal services of the Department at some stage.
The Chairperson reminded the members that South Africa was still in Human Rights Month. No one should forget what happened on 21 March 1960. The right to be housed in a decent accommodation was a human right for all those who did not have a place to stay. The right to services from Government was a right for all those who did not have services. This Bill was intended to expropriate property for public use and in the public interest. There were those who did not have the right to decent accommodation. There were those who struggled to go to work because there were no roads. When the members deliberated on this Bill they needed to remember that. The Committee would be starting with chapter 6, clause 21.
Consideration of the Expropriation Bill clause by clause
Clause 21 - Mediation and determination by court
Mr Shuaib Denyssen, Committee Content Advisor, took the Committee through the Expropriation Bill starting with clause 21.
Ms S Graham (DA) had a question that the legal advisors could respond to. Was there a valid legal reason why arbitration was not included in this clause? Ordinarily, mediation and arbitration went hand-in-hand as alternative dispute mechanisms. Why did the drafters of this Bill feel like arbitration was not relevant? She discussed the submissions that were made. The National House of Traditional Leaders felt that there might be a large dispute that would be referred to the courts and that this may place an unnecessary burden on the courts. Their recommendation was that a specialist court be established to handle that. This might be addressed by the Land Courts that were being discussed in the Department of Justice and in that Portfolio Committee. It might be addressed elsewhere. If there were going to be courts that were established to deal with expropriation issues, then there should be specialists who worked within those courts because it was a very specialised field of law. This was a great addition to the Bill because a lot of people could not afford litigation. An alternative dispute mechanism was an excellent way for people to raise their issues and it did not cost too much. However, there was no clarity around any tribunal or any mechanism that would be established to deal with the mediation or arbitration process. Who would be in charge of establishing that? How would it be established? Was there a specialist tribunal that would be established purely to hear expropriation issues? The Committee needed more clarity on the process of the mediation and what mechanisms people would follow for that.
She discussed subclause (8). In her view, it was unfair and prejudicial. Any dispute that required mediation, arbitration or court processes, including whether or not it was a compensation issue, should halt the process of expropriation until it had been resolved. She thought that subclause (8) should be deleted.
Mr E Mathebula (ANC) discussed subclause (7). It stated, ‘where a court finds that a provision of this Act has not been complied with, it must make such order as it considers just and equitable’. He had a problem with the inclusion of the word ‘must’. It sounded more instructive to the court. Instead, it should say ‘may’. The matter needed to be considered in a way that was just and equitable when compensation had to be made. He needed clarity on that point.
He discussed mediation. Mediation was the cheapest and simplest way of resolving a matter between two parties who did not agree. He agreed with Ms Graham that a possibility of arbitration should have been included. It was an advanced stage from mediation to arbitration. His view was that the State did not want to prolong this process. The possibility was that even if it was taken for arbitration from mediation there might still be disagreements. When there were disagreements then the matter would still need to be taken to court. Now instead of moving from mediation to arbitration, the process should rather go straight to court. If there were other matters that could not be clarified then they could be taken to the Supreme Court of Appeal, up to the Constitutional Court. His view was that this matter should be fast-tracked because there were other instances where property should be expropriated on an urgent basis. An urgent basis should also include arbitration. Going to court was a bit expensive and some people may not be able to afford it. Unfortunately, matters like these end up in court and courts were the final arbiters on matters of this nature.
Ms M Hicklin (DA) asked if a municipality was ordered to engage in a dispute or to engage in mediation on a disputed matter and they did not engage in that dispute within the 180 days, what happened then? If the municipality wilfully did not engage within the 180 days and the court did not grant the extension because the municipality just did not engage, what happened to that mediation? What recourse did the person who had the dispute actually have?
Ms S Van Schalkwyk (ANC) said that she wanted to raise the issue of arbitration that Ms Mathebula had dealt with efficiently. When looking at what had been stipulated, she saw that the matters would be referred to competent courts. That needed to be noted. In dealing with this Bill, the Committee noted that there was a separation of powers. Specialisation competency was required. The Bill complied with the Constitution’s separation of powers. The Committee should leave it in the legislative sector to ensure that required specialisation was dealt with. By going to a competent court, she felt that the matter would be dealt with effectively.
Ms Phumelele Ngema, Parliamentary Legal Advisor, Constitutional and Legal Services Office, apologised for not being part of the meeting the previous day. She had not been aware of the meeting, but she had received the instruction from the Committee to prepare a legal opinion on what she would have contributed the previous day.
She discussed clause 21 and responded to Ms Hicklin’s question because all of the other questions would be answered by the Department. She thought that clause 27, which dealt with civil offences and fines, would address the concern and provide clarity on the question that Ms Hicklin had raised. It discussed what happened when there was no compliance in respect of the organs of state, in this case, the municipality. Clause 27, however, was one-sided. It did not include anybody that would have contravened the provisions of the Act. The Department needed to clarify if there was another provision or another deal with the matter. It was an issue that needed to be looked into when the legal team prepared the proposals for the Committee moving forward in trying to enhance the current status of the Bill. The other questions that were raised related to the questions that she had included in her presentation. The court and the definition of the court were all issues that needed to be addressed. The Bill needed to speak to these issues clearly in respect of the Land Court Bill as well as whether there would be a specialised court or if mainstream courts would be used. The backlog needed to be taken into consideration when including the Magistrates’ Courts as part of courts that could deal with these issues of land and expropriation. The extent of the delays, frustrations and difficulties in having to implement the policies and the laws that were already in place needed to be appreciated. Those were the questions that she had already raised during her presentation. She said that clause 20 (4) needed to be looked at together with clause 21. Clause 20 (4) said that ‘a court of competent jurisdiction may make an order which it may deem expedient in respect of money received by the Master in terms of subsection (1) or (2)’. She was worried in light of that and the usage of courts under clause 21. The delays and timeframes needed to be taken into consideration. What if the compensation and the Master of the High Court relate to minor children? Normally if the children came from disadvantaged backgrounds then they had no one to approach to assist them to take the matter to court. A matter came before a court because someone had instituted an action. In those instances, especially on issues of inheritance and disputes on who may own the land, she felt that the Bill was very scanty. Details may be necessary before regulations might address those issues. The rest of the questions asked by the members should be addressed by the Department.
The Chairperson said that the Committee had agreed that the Department was present and noted all the concerns. The Department would come back and present to the Committee. Then the Committee would engage further. The Committee moved to consider chapter 7, urgent expropriation.
Clause 22 - Urgent expropriation
Mr Denyssen read through clause 22 of the Bill.
Ms Graham said that one of the problems she had with this clause was that the terms ‘urgent’ and ‘temporary’ were used interchangeably. Sometimes the Bill spoke of urgent expropriation and other times it spoke of temporary expropriation. Those terms meant different things. In the context of the various subclauses, they meant different things. Was this a clause for temporary use or was this a clause for urgent expropriation? That needed to be clarified. The Committee needed to look quite carefully at that because of the guise of a temporary urgent expropriation as a backdoor into avoiding following certain procedures to then affect a permanent expropriation. During the period of temporary expropriation who was responsible for the payment of municipal accounts and the bond? It was partially covered in subsection (4). Compensation fell under clause 12. However, clause 12 did not cover these sorts of costs. A bondholder was also not catered for under this clause. The Bill only speaks for an owner and an unregistered right holder. The municipality was not covered under clause 12 (2). Those costs were not covered under any section within the Act in terms of ongoing municipal costs that would be on that property during that period of possession. The responsibility for the payment of the municipal costs only transfers to the new owner and not the new possessor. The rights in the mortgage bond were only extinguished when there was a change in ownership and that was settled. If the property complied with clause 12 (3), that meant that if the property fell within the list of criteria where nil compensation would be paid would the Government then be justified in using the property and not pay any compensation to the owner? It was an extreme version of events, but it was likely.
She discussed clause 12 (2)(a) which related to the purpose of the expropriation as being a factor to be determined when calculating compensation. That was absolutely critical under this clause, in terms of the determination of compensation. The temporary expropriation could deprive the owner from getting an income from the property. For example, if the Government decided that it urgently needed to do experimental drilling on a property because it wanted to see if there was natural gas under that property then Government would go on the property and take an urgent expropriation. Farming could not continue while Government was busy on that property. The owners would not be able to derive income. Clause 12 (2)(a) would have to be one of the primary factors that were taken into consideration because that was the fact that the owner was losing their property. She discussed clause 22 (3) as it made reference to sections 5 (1), 6 (1) and 7 (1). Compliance with section 5 (1) was not so onerous as to render it unnecessary in the event of an urgent expropriation. Clause 5 (1)(a) required that the expropriating authority must determine the suitability of the property for use and (b) required the identification of those whose rights would be affected. She did not see why these should still not be complied with even if it was an urgent or temporary expropriation. She did not believe that the requirements for compliance with section 5 (1) should be exempted under this clause. It should be followed.
She addressed clause 22 (5) which stated, ‘the expropriating authority must make a written offer of compensation’. Why was it suddenly okay for the State to be making the initial offer but under normal circumstances, it needed to come as a claim from the owner? What was different in terms of the State’s responsibility around expropriation if it was an urgent one versus a normal one? The State was going to use the same resources to ascertain compensation. The initial offer of compensation should come from the expropriation authority and not from the person from who the property is being expropriated.
She discussed subclause (6). Who would ascertain the extent of the damage and the amount of compensation payable? Would a baseline be established at the onset of when the urgent expropriation was to take place in order to ensure that the expropriating authority knew exactly what the state of the property was when it took it? That related to the period of investigation. It needed to be addressed from both sides because then the State and the owner were not being protected.
She discussed subclause (9). Sakeliga said that it allowed the State to avoid certain safeguards under the guise of a temporary expropriation and then it could take possession of the property. Once the State had the property it was very difficult for a person who had been deprived of ownership to then enforce their rights. If the Government wanted a property then it needed to follow all the processes irrespective of whether or not it already had possession of the property. This made the point highlighted in clause 5 (1) more critical. At the end of the day, the person had been deprived of ownership and possession. It was also unfair because the State already had the property when it started the process. Taking property for a temporary purpose created the impression that the property would be returned, and the owner would have made provision for that. Then suddenly the owner would be informed that the State was taking the property permanently. She believed that clause 22 (9) should be deleted and that an application for appropriation should commence once possession had been restored. Otherwise, it did unfairly prejudice the owner and places the State in a much stronger position than the owner and the principle of equivalence would be compromised.
Ms Hicklin said that much of what she wanted to say had been raised by Ms Graham. She was also going to raise the issue of temporary and urgent. She discussed clause 22 (2)(b)(i). Who determined the urgent and exceptional circumstances to justify this? During the temporary expropriation, who was going to be paying the bond or the municipal rates? The owner or registered holder of the property would be unfairly prejudiced if it was only going to be a temporary situation. Who was going to be responsible for paying that bond? Who was going to be responsible for paying the municipal rates? If at an end of a period, the State determined that it would not be keeping this property and not expropriating the property then those bond charges and municipal rates would have accumulated because the State would not have paid those bonds or those municipal rates. Ms Graham had covered all the other issues she wanted to raise.
Mr Mathebula said that the Committee needed to understand what urgent basis meant before it could talk of processes. An urgent basis meant that the normal processes would not be followed because the situation was urgent. He provided an example. If there was an example where there were floods and people needed to be taken from one area to another particular land. When would the State start the process of giving notice, mediation and so on? What would be happening to those people? Whether it was a fire or flood, it was common sense that an urgent basis did not follow the normal steps that would be usually followed. The urgent basis that the State would use depended on the situation that it was confronted with at that particular stage. The Bill spoke of the temporary use which did not exceed a period of 12 months. In the event that it exceeded that amount, there would have to be an application made at a court. He could not see a situation where an expropriating authority took a decision to say that it wanted to urgently and temporarily expropriate a portion of land without taking into consideration that it was in the interest of the public and in the interest of justice for this Act to be executed on an urgent basis. The owners of the property might be deprived of income. Expropriating land on an urgent basis meant that it was urgently in the interest of the public. The expropriating authority would not be following all of the necessary steps as it was urgent. If the person whose property had been expropriated on a temporary basis could prove in a competent court of law that this was done without the interest of the public, then punitive actions would be taken against the expropriating authority.
He responded to Ms Hicklin’s comments about who determined the urgent circumstances. This was a simple thing. It was the State that would approach the individual to say that it wanted to expropriate that particular property. It was going to be the expropriating authority that was going to determine the urgent basis of the temporal use of that property. He discussed clause 22 (7)(a). It spoke about the extension that would have to be applied for in the event that the period exceeded 12 months. The Bill spoke of going to court and asking for the extension. Spending money to go to courts should be avoided in the Bill. The person whose property was being expropriated should be approached for an extension of that particular period of 12 months. If that person refused, then the expropriating authority could take the step of approaching the court and make an application. The State should not immediately rush to courts and spen money on advocates and other costs.
Ms L Shabalala (ANC) said that she was partly covered by Mr Mathebula. He had covered a wide range of issues. She noted that the Department would have to confirm if it was enabling legislation that could operational and administratively ensure the Bill was implemented accordingly. There was a KZN Transport Act and that it was affected when it came to the temporal expropriation. She did not think that this was something that would take place for the first time. It was already in existence. In a situation where the expropriating authority and the owner of the property were not in agreement in terms of the extension beyond 12 months, how was mediation not implemented? Would it not be in use rather than the expropriator going straight to court after the disagreement about the extension?
Ms Van Schalkwyk discussed clause 22 (1). It clearly stated temporary for as long as it was urgently required. The clause was not about temporary expropriation. It was for temporary use due to urgent circumstances, as outlined in clause 22 (2). The matter of urgent versus temporary expropriation should not be confused. The clause was quite clearly focused on urgent expropriation. The use of temporary referred to it being contrary to exportation as in cases where property was vested in the State for a public purpose or in the public interest including the commitment to land reform and bringing about equal access to land and economic power. It was also stipulated that when there was urgent expropriation happening rent would be paid to the owner. When rent was being paid then the owner of the property was still obliged to pay for the bond and many municipal rates. She did not think the Committee should be confused in this regard.
Mr W Thring (ACDP) asked a question in relation to clause 22 (2)(b)(iii). It spoke of any other grounds. The power referred to in subsection (1) may only be exercised if suitable property held by the national, provincial or local government was not available under the following circumstances, any other ground which in the view of the court justified action under subsection (1). Was ‘any other grounds’ not too broad? Should it not be a little more specific? If it was not specific then ‘any other grounds’ could be almost something that was fairly frivolous. The court had to make that decision. He hoped legal services would be able to respond. Should the Bill not be specific in terms of what ‘any other ground’ was? He discussed clause 22 (5). It stated that payment needed to be made within a reasonable time. A lot of the time there were specific timeframes in the Bill but when it came to the payment of the person whose property was being expropriated then it just said, ‘within a reasonable time’. With some Government authorities particularly with subcontractors, these subcontractors struggled to get their money within 30 days. The Bill needed to be specific in terms of what the suitable time was. He had a hypothetical question. If a property was expropriated for temporary urgent use and there were agreements in terms of what should be paid but for some reason, the municipality was running short of cash and midway through it defaulted, the owner could now no longer keep up because the municipality defaulted. The bank then stepped in and said if payment was not made within three months that the property would be sold or auctioned. What happened in cases like that? In one of his meetings with the Banking Association of South Africa, it had expressed concern about those grey areas. Would the national Government step in if it was a local municipality? Would another sphere of Government step in to ensure that the terms of the agreement were adhered to?
Ms Ngema discussed urgent and temporary expropriation. The members needed to understand what clause 22 (1) sought to achieve. The Bill stated that urgent expropriation may happen when there was an urgent basis. Did the provision take it further to indicate or determine what was an urgent basis? She believed that subclause (2) was an outline of what would be the urgent basis. As the members pointed out, the property would be used temporarily. That was why there was an understanding that the words could be used interchangeably. The urgent expropriation may take place within a determined timeframe. She explained that the Bill sought to make an urgent expropriation mean the same thing as a temporary expropriation. She noted section 55 of the Mineral and Petroleum Resources Development Act (MPRDA). It did speak of a type of temporary expropriation, which was not the same as an urgent expropriation that this Bill was attempting to address for purposes of determining an urgent basis. Section 55 of MPRDA enabled the Minister to expropriate for purposes of prospecting or mining. That would be temporary because it aligned with the license and the license was given a timeframe as to when that activity may take place. If it was a temporary expropriation, judgements had indicated that it must not necessarily take away the rights of people that were in that specific place. It needed to be done in such a manner that the livelihoods of those people needed to continue. Looking at other laws, there was a distinction that should be there in understanding what was temporary expropriation. In the instance of clause 22, the Bill was only speaking of urgent expropriation. The justifications were determined in line with clause 22 (2). The issues raised in clause 22 (2)(b)(iii) which related to any other grounds would be addressed by the Department. In her opinion, the fact that it was given to the jurisdiction of the court meant that it was not a determination by the expropriating authority. Any other grounds would be a justification that arose out of the court process. It would not be determined by the expropriating authority. That should allay the fears of members. It would be concerning if it was not determined by the court because then it would have been pointless to provide the grounds that were listed in the Bill. In this instance, it was any other grounds only given to the prescripts and parameters of the courts and not the expropriating authority. All the questions would be answered by the Department, especially when it came to the issue of mediation and arbitration. The Department would also address the concerns about a reasonable time and why the Bill did not specifically indicate the timeframes. She noted the Promotion of Administrative Justice Amendment Act (PAJA) guided the issue of reasonable time when it came to administrative bodies, executive bodies or State organs. The reasonable time definition needed to be aligned with PAJA.
Adv Shaun van Breda, Senior State Law Adviser, OCSLA, discussed the concern raised about clause 22 (2)(b)(iii). There was a concern that the use of the term ‘any other grounds’ may be too broad. He was in agreement with Ms Ngema. The intention there was to ensure that there was not a limited list in respect of these types of urgent expropriations. At the end of the day, it was the court that would determine a just and equitable decision as to what any other ground could be. He addressed the concerns around reasonable time in clause 22 (5). Reference to reasonable time was used throughout the Bill in respect of payment of compensation. This was also a term used in the existing Expropriation Act. He was in agreement with Ms Ngema that this was subject to just administrative action in terms of section 33 of the Constitution and PAJA, which was applicable. The term was consistent with decisions made by courts in terms of expropriation. The use of the term was appropriate. He was in agreement with the explanation of what urgency referred to by the members as well as Ms Ngema. The use of the word ‘temporary’ was appropriate as the term of usage could not exceed 12 months or a maximum period of 18 months, should an extension be granted. That was why the term temporary was appropriate. He discussed the concern raised about an expropriating authority deciding to proceed with permanent expropriation of the property. As provided in subclause (9), the expropriating authority had to comply with all the relevant provisions of the Act. That would include clauses 5 (1), 6 (1) and 7 (1) of the Bill. The other concerns raised on this clause would be best answered by the Department.
Ms Ngema said that she needed to make an additional point. She noted legislation that addressed the concerns raised over interchanging the words temporary and urgent basis. Section 55 of the MPRDA was very clear. The provisions in that Act and the Bill were clear. The provisions could not be avoided. It had to be complied with. The lack of compliance could only be allowed on the basis of urgent expropriation. It was expressed what would be the urgent expropriation. There was a clear distinction. If that was not coming out, then the words used in the Bill needed to be clearer. There was a distinction between urgent and temporary expropriation.
The Chairperson reminded the Department to take notes as the members were raising issues in the meeting.
Mr Thring said that the hypothetical question he asked had not been responded to.
The Chairperson said she was unsure whether the legal advisors would be able to respond to his question because they had also indicated that some of the issues needed to be addressed by the Department. Once the Bill was passed and became an Act there would be regulations that would guide it. The Department would not respond today. An entire day would be reserved for the Department to respond.
Adv Van Breda said that the Department would be best placed to respond to the question.
Clause 23 - Withdrawal of expropriation
Mr Denyssen read through clause 23 of the Bill.
Ms Graham said that this was a horrible clause. An egg could not be unscrambled, giving the expropriating authority the option to withdraw on any cause. It said, ‘in the public interest’. Public interest, throughout the Bill, was a completely broad, undefined basis on which decision making was going to be done. Allowing it to be withdrawn in the public interest created a whole lot of issues. People would have moved house, sold their possessions and the bond would have been extinguished. Then Government would say that it made a mistake and that it was in the public interest for it not to proceed. This was an awful clause and it needed to be looked at very seriously. There should only be very specific circumstances where Government could say it was not proceeding with the expropriation. The process of investigating the suitability of a property should be far more onerous than it currently was in the Bill. A lot of what would have been undertaken during the investigation process was now undertaken at a later stage after the notice of expropriation had already been issued. The Committee needed to shift the Bill to make sure that the investigation phase was detailed and onerous so that the withdrawal of compensation could be avoided. If the purpose of the expropriation had changed then it rendered the entire process almost unlawful because the purpose of the expropriation was a primary indicator of the entire process. It could not suddenly be that the purpose was allowed to change.
This Bill spoke primarily to immovable assets. It spoke primarily to land. What would happen if someone’s song lyrics were expropriated by the Government and the Government decided it was not in the public interest for people to listen to that song. How did that get reversed? There needed to be a much less broad definition of property. It could not just be the broad definition of property as articulated in section 25 of the Constitution. There was no protection in this section for any other property, other than land. It was written with land in mind.
She discussed subsection (3). Ownership only vests when the property was registered. That was already covered by subsection (2)(b). It was in direct conflict because an expropriation may not be withdrawn when the property was registered in the name of the expropriating authority. The subclause also spoke about mortgage. The mortgage would have been paid off because ownership would not have been able to vest had the mortgage not been settled. Would the property have to be mortgaged again? It could potentially be at a higher rate. The entire subclause (3)(a) needed to be removed because it was contradictory to subclause (2)(b). Once the property had been sold and possession rested in the State, and it decided it did not want to use the property anymore then it needed to make its own choices with regard to how it was going to use it. The Government could not turn around, admit that it made a mistake and withdraw expropriation. She discussed the Registrar of Deeds. She was not sure if that related to possibly related to servitudes and things registered as a result of expropriation. Would those then be removed? She believed that the clause was very unfair and heavily weighted in favour of the State.
Ms Hicklin agreed with the analogy of trying to unscramble a scrambled egg. That was accurate. How would the State reverse the damage that had been done? She provided an example of paying off a bond over a certain number of years. The property would be returned to the previous owner but now the bank said the property was valued so much more than what was initially paid for. How would the owner recoup the damage that had been done? The owner would have to now pay more. Her concern related to the damage that had been done to the property because the State had been working on the land for a certain number of months. The property might be devalued. The owner would be disadvantaged because they would have to take out a new bond as the land might be valued more by the bank. It was a whole mess because the State had taken the land away from the owner, then given it back and now the owner had to refinance that land. The owner of the land would be disadvantaged all over again. It disadvantaged the owner of the land quite dramatically once the expropriating authority said that it did not want the land anymore. This clause was working in the interests of the expropriating authority as opposed to the owner of the land. The Bill was supposed to work in the public interest. It needed to be understood that everyone in South Africa was living in the public interest. All the land needed to work within the public interest. The withdrawal of expropriation was a very problematic area. It was problematic for everyone in South Africa. It needed to be looked at very closely.
Mr Mathebula appreciated the inclusion of this clause in the Bill. The clause was very important. It was not horrible. In any situation, the unexpected needed to be expected. The State needed to prepare itself for anything that might happen. If this was not covered in the Bill, then the State was likely to violate the law. The Bill addressed the matter of the expropriating authority making a withdrawal of the expropriation. The Bill was preparing the State for such an eventuality. It spoke about the State being honest and committed to its own actions. This clause had more to do with issues of investigations that needed to be done. If those investigations had not been done properly, then this clause addressed that. This clause sought to remedy that situation.
He discussed clause 23 (3)(c). It stated that ‘the expropriating authority is liable for all reasonable costs and damages incurred or suffered by a claimant as a result of such withdrawal’. That was fair enough. If the decision for withdrawal was taken, then the person from whom the property was expropriated would not be forced to take responsibility for something that they were not responsible for. The expropriating authority would have to take responsibility and pay reasonable costs and damages to that person. This clause encompassed the Constitutional rights of both the State and the person from whom the property had been expropriated. The Committee had nothing to fear with this clause. In the event that mistakes happened, then the expropriating authority would take responsibility. However, he did not want the State to go to that extent where there was a paying of damages, costs because the State had changed its mind. When the State expropriated property from a particular person and it decided to withdraw that expropriation, why should the State take the property and give it to someone else? For the State to embark on expropriating a property it was because there was a particular purpose to use that property. The State could not divert from taking that particular property and give it to someone else. The State needed to give it to the very same person from whom the property was expropriated. Reasonable costs and damages should be paid to that person who had suffered.
Mr T Mashele (ANC) agreed with the contents of the clause. It would not be fair that in the event that the expropriating authority decided to withdraw, the land was given to someone who was not the owner of that particular land. It was in good spirit that in the event that such happened that the land was given back to the owner. He noted clause 23 (3)(c) explained that expropriating authority was liable for all the reasonable costs and damages incurred or suffered by the claimant. He provided an example. The government might decide that it wanted to set up a clinic in a particular mining town. As Government was in the process of building that clinic, the mine closed. A lot of people from that mining town would migrate. The government would then realise that it could not build the clinic or hospital that it had envisaged. It would be wrong for Government to give the property to any person other than the original owner. That would all happen within the period of three months.
Mr Thring agreed with the comments made by Ms Graham. The clause was highly stacked in favour of the expropriating authority. In all cases, the Bill needed to move towards a situation of equity and a situation of fairness. The withdrawal of expropriation was clearly stacked in favour of the expropriating authority. It was important that the expropriation authority engaged in due diligence, a proper risk-benefit analysis when a property was to be expropriated. A failure to do that would result in the withdrawal of the expropriation. When payment had to be made in terms of cost and damages that particular payment could be viewed as irregular expenditure because the expropriating authority failed to carry the necessary risk-benefit analysis.
The Chairperson said that there were loopholes that the Department would have to assist the Committee with. However, clause 23 (2) covered a lot of the fears that Ms Graham and Ms Hicklin were stating. Subclause (2)(a) indicated when a withdrawal could not happen. The expiration of three months from the date of expropriation meant that not a lot would have been done. Maybe the ownership had not really exchanged hands. Subclause (2) covered all the fears. The last paragraph in subclause (3) put the liability on the expropriating authority for any result of withdrawal.
Adv Van Breda said that he was in agreement with the Chairperson. Subclause (2) provided the instances where the expropriation may not be withdrawn. Subclause (3)(c) provided that the expropriating authority was liable for all reasonable costs and damages. Clause 23 was identical to section 23 of the existing Expropriation Act.
Clause 24 - Service and publication of documents and language used therein
Mr Denyssen read through clause 24 of the Bill.
Clause 25 - Extension of time
Mr Denyssen read through clause 25 of the Bill.
Clause 26 - Expropriation register
Mr Denyssen read through clause 26 of the Bill.
Clause 27 - Civil offences and fines
Mr Denyssen read through clause 27 of the Bill.
Ms Graham discussed clause 24. Subsection (1)(a) said that it would be delivered to the addressee personally. This meant that it would be done by hand. It did not stipulate who would be doing the delivery. She proposed that possibly the Sheriff of the Court or somebody similar should be entrusted with this. There was no stipulation as to who was responsible for the delivery and how proof of delivery would be provided. That was a concern.
She discussed subsection (3), ‘whenever a document must or may be delivered in terms of this Act’. She noted subclause (b). Nowhere in the Bill did it provide for a confirmation of the address for service of documents to an owner or a holder. Most contracts spoke about a place where notices could be delivered. Nowhere could she find as part of the process an address for the delivery or the service of documents must be ascertained for the people to provide addresses. She knew that those who would be objecting or making submissions would then be providing their details. She was concerned that there was no process for ensuring that the State had proper details. It also stated that if an address could not be located that a notice would be put in the paper. That could never be sufficient notice for people in something as large as an expropriation. She believed that it must be delivered. There needed to be somewhere in the Act, possibly under clause 7(1) where the addresses of all of those who had an interest in the property must be ascertained. It needed to be clarified for the purpose of service of documents. It also referenced a fax number. She believed that a fax number was outdated technology. The delivery of certified copies or originals could not be done through a fax machine. Wherever there was sharing of information, email and electronic media needed to be brought in. The same could be said under subsection (4). There was a list of means by which it could be delivered, and it said by hand. By whom? That needed to be clarified. It could be delivered by hand by the Sheriff of the Court or someone similar. She did not see the point of facsimile transmission. Somebody that would be in this position would not have a fax machine. The fax machines would probably only be with copies for business or the Government. She knew people thought that she was ridiculous for wanting that removed but she believed that it was redundant technology. Electronic media and email should be added to the list. She discussed clause 25. Were the people who were involved in this process, outside of the expropriating authority, advised of the possibility of applying for an extension? Was it included in the notice of expropriation? Was it included in the intention to expropriate? It did not seem to be a requirement anywhere to alert them to this fact. If they were not alerted to this fact and could not comply then they were not aware of the fact that they could apply for an extension of time.
Clause 14 (1)(c) referred to things like valuations that needed to be supplied, professional reports that needed to be supplied. For land reform purposes the Valuer-General could take up to six months to do a valuation on a property. She had been raising the matter of timeframes throughout. The timeframes were ridiculous. She did not know where 20 days came from. When the Bill was sent out for comments the Committee had asked for 60 days. She could not understand how if people’s properties were now at risk that they were given 20 days within which to respond. She believed that the timeframes needed to be revisited to make them fair and easier for people to comply with. That would then eliminate a need for a request for an extension of time. What would happen if the expropriating authority needed an extension? There was nowhere in the Bill that allowed for them to get an extension based on good cause shown or in collaboration with the owners. That was a problem and the Committee needed to look at what would happen when the expropriating authority did not have any time.
She addressed clause 26. This clause had been welcomed by a number of people and she agreed. It was a fantastic clause and an excellent idea. It will create a register of information that would give the Government idea of the value of properties and would allow them to be in a better position with respect to discussions around compensation.
She noted clause 27 (2) and clause 28 (1)(d). The Minister got to prescribe the maximum amount. On what basis was that? What would the Minister use as a reference point? A lot of legislation had a fine built into it with an amount or reference to where that amount could be derived from. This Bill did not give any reference. The Minister could ‘thumb suck anything’. There needed to be included a limit or an idea of a fine in this section. She raised what the Parliamentary Legal Advisor had previously raised. Why were there no sanctions against the expropriating authority in cases of their failure to comply with obligations? The people whose interests were being impacted were the only ones being held to account. In no way, shape or form was the expropriating authority being held to account. This had to be amended so that if the expropriating authority did not hold up its end of the bargain that there was some level of recourse outside of mediation and arbitration. They should also be sanctioned in the event of noncompliance with any prescripts of the Act.
Ms Hicklin said that Ms Graham had completely covered her. She was also concerned about the timeframes that were very short.
Mr Mathebula said that he appreciated these clauses. It helped a great deal. He discussed the language used in communications or publications. It was a Constitutional right for people to be informed in the language that they understood. South Africa had 11 official languages. In most cases, the Government chose to use English as the language of communication. Not everybody understood English. People were not forced to understand English. It did not take away someone being a South African if they could not speak or understand English. This was a Constitutional matter that was covered by this clause. He discussed clause 26. The Director-General should make it a point that the public had access to information that spoke to the intended, effected and withdrawn, and of decisions not to proceed with a contemplated expropriation by all expropriating authorities, is opened, maintained and accessible to the public. He noted the Promotion of Access to Information Act. This information belongs to the people and people needed to know that even if Government did anything wrong. People needed to know what the State was doing.
He discussed clause 25 of the Bill. He noted that this would become a civil matter. This would form part of the documents supplied by the expropriating authority to the person from whom the property was being expropriated. It would not be excluded. The owner would be informed. He heard Ms Graham asking who should make the delivery of that letter of communication from the side of the expropriating authority. She had asked whether or not it should be the Sheriff of the Court. The Bill should not involve the Sheriff of the Court because that was an official of the court. The Sheriff of the Court could only deal with matters that were already filed with the court. This was a matter between the expropriating authority and the person from whom the expropriation was taking place. The matter was not yet in court and there was no way the Sheriff of the Court could deliver documents. He supported that reasonable means had to be used to deliver any communique to the affected parties so as not to deny the parties involved the right to interact and participate in the process.
The Chairperson said that it was clear that this Bill had been done in line with the Constitution. The Constitution stressed reasonableness and fairness. Those two items were components of equity and justice. She raised this because the Committee was asking what was a reasonable period? What was fair? The Constitution of South Africa was one of the best in the world. She did not think that the Committee needed to ask that. The OCSLA had in many instances indicated that some of the chapters of this Bill were taken straight from the Expropriation Act of 1975. The reason for this Bill was because that Act did not talk to the current Constitution. Where there were chapters of the Act that did not need to be changed, it was brought into the Bill as had been indicated by Adv Van Breda. When the members discussed they needed to remember those things.
Adv Van Breda said that concern had been raised that the Bill did not make provision for an owner or holder of rights in the property to provide a ‘domicilium address’. There was provision in clause 14 (1)(e) where it provided the owner or holder of a right to provide a physical or postal address where documentation in respect of the expropriation needed to be delivered. However, it may be more appropriate to make provision in clause 7 where an owner or holder of rights would provide a ‘domicilium citandi et executandi’ in that statement which it sent to the expropriating authority.
He discussed the use of the Sheriff in respect of the service of documents. The Sheriff was an official of the court who was responsible for the service of court process and the execution of court orders. It would not be appropriate for the Sheriff to attend to such service. The Department would be best placed to respond to that concern, as to who would be responsible for such service.
Clause 28 - Regulations
Mr Denyssen read through clause 28 of the Bill.
Clause 29 - Regulations, legal documents and steps valid under certain circumstances
Mr Denyssen read through clause 29 of the Bill.
Ms Graham discussed clause 28. The feeling was that the power of the Minister was far too broad. Sakeliga, in its submission, said that this amounted to Parliament delegating its lawmaking powers to a single Minister. She was inclined to agree with this. It was in conflict with the separation of powers. There needed to be more curtailment of the Minister’s powers. The Minister could impose any fine, could do any notice of document and various other things. Anything that had a vague relation to expropriation was under the purview of the Minister. The recommendation was that there be a subclause that curtailed the Minister’s powers with respect to the Bill.
She discussed clause 28 (2)(b). She thought that the people who drafted this Bill had an obsession with 20 days. Normally there were 60 days for comments on things like regulations and laws. 20 days were far too short for inputs on something as far-reaching as the Minister’s regulations.
She discussed clause 29. Agbiz in their submission, asked who decided when a mistake was material or not? If an expropriating authority got to adjudicate on its own errors and the materiality thereof then the clause was patently unfair and prejudicial to those affected. Administrative action includes procedurally fair under section 33 (1) of the Constitution. This whole thing could not be handled so lightly. Agbiz made an excellent suggestion. It said to allow condonation of non-compliance where both parties agree to it. Failing which, the affected party could apply to the court for condonation. This gave the affected party the opportunity to wave their procedural guarantees, or the court could decide whether or not the noncompliance was material. She agreed with the input from Agbiz because there was nothing that protected the other party against the expropriating authority who could just say it was not a material procedural irregularity and did not need to be addressed.
She discussed clause 29 (1)(b)(ii). It stated that ‘the correction does not change the rights and duties of any person materially’. Sakeliga said that the use of the word ‘and’ meant both rights and duties must be affected. If only one of those was affected, then the notices may be changed or replayed without following a procedural requirement. The recommendation was that ‘and’ must be replaced with ‘or’. They went further to say that the word ‘interests’ should be included. It should be ‘rights, interests or duties’ because expropriation of property affected a person’s interests in that property. She agreed with that suggestion.
Ms Shabalala said that she was comfortable with the powers vested with the Minister. The Minister was an executive authority in the Department. She was comfortable with this Bill being found within the Department of Public Works.
She discussed the issue of regulations. She was happy with the emphasis on the key instruments that were not exhaustive. The Minister would have to see to it that even if there was something that had not been implemented that it was not material then at least the members could be comfortable.
Ms Van Schalkwyk said Ms Shabalala covered her in terms of the executive authority being the Minister. She agreed that the power vested in the Minister was not stretched in this instance. It was sufficient and the Committee had to take into account that the Minister was the executive authority in this instance. The Minister may or may not delegate their authority. It was sufficient as it was. Nothing should be removed. Ms Graham continuously mentioned the concern with timeframes. Right in the beginning when the Committee spoke about the days then it was said that the weekends and public holidays were not included. When it stated 20 days it was in fact a month when one considered the days that were not included. Unless there was strong opposition to this matter she felt that the 20 days referred to was sufficient.
The Chairperson said that when a Bill became an Act it was located within a certain Department. The Minister of that particular Department was the executive authority. They were the one who was given powers. She did not understand the issue with the powers of the Minister. When the Expropriation Bill became an Act it would be within the Department of Public Works and Infrastructure. The Committee could not say that the Minister of that particular Department, in which the Act was located could not be the one who has powers. She did not understand this issue. There were many Acts and the person who had powers was that particular Minister. She did not understand why the Committee was questioning it in this instance. She heard the members of the DA questioning this and she did not understand why. She discussed the issue of the 20 days versus the 30 days. This was one of the issues that the Department should explain to the Committee. The Committee had raised the issue and the Department would respond on it.
Adv Van Breda said that the Department would be best placed to respond to most of the concerns raised. The proposals made in respect of clause 28 (1)(d) regarding the maximum fine that may be posed by a competent court concerning the regulations which may be made by the Minister. That may be re-looked at and considered depending on how the Department responded. There was legislation that governed maximum fines.
He discussed clause 29 where a regulation or notice made or issued did not comply with any procedural requirement in terms of the Act, is nevertheless valid if the non-compliance is not material and did not prejudice any person. The requirement that there must be just and equitable administrative action which required fair procedure needed to be kept in mind. This clause did provide that a failure to take these steps as a prerequisite for any decision does not invalidate the decision or action if the failure was not material. There were conditions that the noncompliance could not be material and could not prejudice any person and could not be procedurally unfair.
Clause 30 - Interpretation of other laws dealing with expropriation
Mr Denyssen read through clause 30 of the Bill.
Clause 31 – Repeal
Mr Denyssen read through clause 31 of the Bill.
Clause 32 - Transitional arrangements and savings
Mr Denyssen read through clause 32 of the Bill.
Clause 33 - Short title and commencement
Mr Denyssen read through clause 33 of the Bill.
The Chairperson said that the Committee would not be dealing with the memorandum as it was only considering the clauses. The Chairperson asked if there was any comment on clauses 30, 31, 32 and 33.
Ms Graham said that she had no inputs on any of the remaining clauses.
Ms Van Schalkwyk said that the ANC agreed with the remainder of the clauses.
The Chairperson asked if there were any comments from the other political parties on the last four clauses?
Mr Thring said he had no comments on these clauses.
The Chairperson appreciated the way the members had deliberated, starting from clause 1 up to clause 33 of this Bill. The manner in which the Members had deliberated showed what South Africa was all about. South Africa was a country where people respected one another. The views of the different political parties that were represented in the Committee were respected. Out there, the people of South Africa needed to respect one another. This was a very important Bill. The media had shown a keen interest in this Bill. The Committee had concluded its deliberation, clause by clause, and raised their concerns. The members had raised what they wanted to be changed. The Committee appreciated the role that was played by the Parliamentary Legal Services and by the Office of the Chief State Law Advisor in guiding the Committee to make sure that it remained within the ambit of the law. The Committee could not move away from the Constitution which instructed that laws were to be made for general application. The Committee agreed that there were issues that were not clear in which the Department must come in and explain in detail those issues. On 29 March, the Department would respond to all the issues that were raised. The Committee would then deliberate on those issues. The Chairperson encouraged the members to continue working in the way they had. Members of this Committee never attacked one another when in Parliament. She appreciated the work of the members. It made her work to chair the meeting easier as there was no hurling of insults. She had been worried that with this Bill the Committee may degenerate, but the members had shown professionalism.
The meeting was adjourned.
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