Briefing by the Parliamentary Legal Advisor on the A-List of the Expropriation Bill

Meeting report

The Chairperson welcomed the Committee Members. She said the meeting was meant to be held in the last quarter, but due to a tight schedule, it had to be postponed to the present.

She highlighted that the meeting is held at a critical time in South Africa, the August month declared as Women’s Month. She shared a few words honouring the women who marched in 1956 and highlighted that the current sitting brings together women from different political parties because of the bravery of the women of 1956. There is still a lot of work to be done in the economic emancipation of women in South Africa, continuing from the road paved by the women in 1956. She spoke of the various forms of abuse and unjust killings that women and young girls face in South Africa daily. She expressed her condolences to all the families who found their loved ones killed in the various incidents over the past few months and sent out a strong message to the Minister of Police to ensure justice prevailed.

She outlined the agenda of the meeting and indicated that the Bill would soon be ready to be presented and deliberated by Members of Parliament. She expressed gratitude for the role played by Committee Members in work done on the Expropriation bill.

An apology from Ms Matimise, the Committee Secretary, was noted.

She handed over the virtual platform to Ms Phumelele Ngema from the Parliamentary Legal Advisory team.

Report from the Parliamentary Legal Advisor
Ms Phumelele Ngema, Parliamentary Legal Advisor, said that she would be presenting a copy of the Bill which she and the State Law Advisor had previously worked on. The copy simplifies the progress of the corrections after the deliberations done by the Committee Members. The copy makes a comparison of what was to come out after the deliberations were agreed upon.

She began with Clause 1 of the A-list, where the Members asked that anything related to counter offer needed to be removed including the new provision made. The reference to counter offer has been removed in light of everything explained. The “claimant” means a person who has lodged a compensation claim.

From the directives the Committee Members gave, the issue relating to the disputing parties once the process began had to be sorted. The new definition of “disputing party” means an owner, mortgagee, holder of a right, including an owner and holder of a right contemplated in Section 20, Expropriated owner, or Expropriated holder who rejects the Expropriating authority’s offer of compensation.

Ms Ngema indicated that she would only be speaking on the issues that needed to be corrected and would not be addressing the new additions to the Bill.

A few grammatical changes were made in the Bill concerning the meaning of “owner”.

The definition of “service” was changed and substituted with a new definition, ‘service’ means a service as contemplated in Section 22(1), and “serve” has a corresponding meaning.

In respect of Clause 2, the changes made were the corrections to omit subsection 2 as pointed out by the Members. Number 3 in Clause 2 indicates that on page 6 in line 23, “22” was omitted and substituted with “20”. Number 4 would have to read as follows “An expropriating authority may expropriate property in terms of a power conferred on it by the law of general application and following Sections 5 to 25 and 29.”

In Clause 3, page 6, and line 34, subsection (2) was omitted and substituted with the following “(2) The Minister may expropriate property on behalf of an organ of state, which has been established by or under any law but is not an expropriating authority…”

She reiterated that the document presented was a comparison document to ensure that Members were clear on what changes were previously instructed upon.

Corrections on Clause 4 clarify that once specific provisions in the Bill become an Act, the Minister may not delegate or assign the powers or duties conferred by Sections 3, 20(1), and 26.

Concerning Clause 5 on page 7, subsection (3) was omitted and substituted with “No person contemplated in subsection (2) may enter the property without authorisation from the expropriating authority…” what was added thereafter was (a) the written consent of the owner or occupier of the property, including the written consent of the owner or occupier of a property contemplated in subsection (2)(a)(v), to perform an act contemplated in subsection (2). She said this was related to the question of seeking consent and ensuring people's rights to have their rights and dignity protected when these processes occur.

Clause 5 lays out the people receiving the notices, as previously explained, there will be prior notices when the expropriating authority decides to expropriate.

Clause 6 remains without any changes, as these were the changes that began from the clause after the determination of compensation.

Ms Ngema proceeded to take the Committee through the corrections and changes made to the Bill. In Clause 8 it was just grammatical changes to ensure that the numbering read correctly; this was also the same with Clause 9 where referencing corrections were made. She said that Clause 9 is a provision dealing with vesting and possession of the expropriated property. Clarity was given to a few issues raised by the Committee Members.

Clause 10 corrects what was previously discussed in Clause 7 concerning the change in numbering.

In Clause 11, she highlighted that there was a cross-referencing correction and Clause 12 was related to the determination of compensation. The corrections made in respect of Clause 12 were that certain provisions would be coming out and repurposing the purpose for expropriation should there be a need.

She highlighted the changes made in Clause 14. She indicated to the Members what was previously included and that it would be deleted in the correct A-list, concerning the provisions spoken about.

Clause 22 related to a provision that dealt with ‘agent expropriation’, which would be the new one under the new Clause 20 which brings about the issue of the temporary use for property should there be a need.

In the old A-list, under Clause 24, a new clause dealing with repurposing was rejected by the Committee Members. It will be taken out.

Due to the rejection of the previous clauses, the numbering of Clause 25 will be changed.

The corrections made in Clause 27 were related to civil penalty and the description of the said penalty should the matter go to court. She said that previously it should be noted that there are certain circumstances requested by the expropriating authority and they are not done; it then becomes a civil offence and requires civil punishment.

The long title had previously been discussed and now speaks to all the issues raised. It gives a brief summary of what the intended Act wants to do and hoped it would achieve.

Finally, the arrangement of sections has also been addressed due to all the clauses that had been rejected and wherever the clause appears as rejected, it will be taken out of the introduced Bill.

Discussion
The Chairperson thanked Ms Ngema for the presentation. She said that she is aware that there is a process where the Committee would also receive the ‘B’ version of the A-list, and as the Committee, they would have to adopt it. However, this would not happen in the current meeting.

She proposed that Ms Ngema should show the Committee the B-list, the clean version she has gone through, explaining why certain clauses would not be seen and certain expressions would not be seen.

The Chairperson gave the Committee Members an opportunity to comment or raise any issues.

Ms S Graham (DA) said that in the next phase of the process, the Committee would be voting on the Bill clause-by-clause, and she asked if, at that point, the Committee Members would be expressing whether or not they supported a particular version of the clause.

Ms Ngemasaid that the next phase of adopting the A-list would be that it goes to the Creda processing, which is the company that assists in incorporating all the changes made into the B-version. In the next stage, once all the changes have been incorporated, the version will be written as Bill [B23B - 2020]. In the next meeting, the Members will have an opportunity to comment and indicate their position.

Mr E Mathebula (ANC) said that Clause 16 indicated that Clause allowed for the Expropriated institution to ask for particulars. Concerning that, he asked if there was any other recourse that could be inserted in this particular situation.

Ms Ngema responded by saying that in respect of the new Clause 14, going to court will be the last resort made after the parties have not found each other in respect of mediation which is the cheaper option. There is both a provision made for mediation and for taking the matter to court.

The Chairperson reiterated to the Members that they would again have the opportunity to deliberate on the B-list, clause-by-clause, as indicated by Ms Ngema. The Committee would not be voting in the current meeting. She proposed that the Advisory Team should be dismissed and not present the clean version of the B-list in the meeting as it would address the same issues already presented.

Ms S Van Schalkwyk (ANC) proposed that the current A-list should not be present and they should wait for the B-list. The different parties should be allowed to engage in their different caucuses and return at a different stage for the final deliberation.

Ms Graham said that the two documents do not seem to have the same markup and comments as the one presented by Ms Ngema. She asked if that version was available to the Committee. She supported the proposal made by the Chairperson.

The Chairperson said that the document would be made available to all Members of the Committee. She appreciated the work done by the Parliamentary Advisory Team, as many people would benefit from this Act when it came to fruition.

Ms Van Schalkwyk sought clarity regarding the reference to “repurposing” instead of “repurchasing”.

Ms Ngema responded that the Members were correct in saying that it was “repurchasing” of property; however, the repurchasing occurs because the repurposing has already occurred where the Expropriating authority felt that there is no longer a need for the expropriation.

Committee Minutes
The Committee considered and adopted minutes dated 11, 18 and 25 May, 1 and 8 June 2022 with minor amendments.

The Committee Members formally adopted the amendment of the third term programme.

Meeting adjourned.