The Select Committee considered oral submissions in a meeting in Parliament on the Expropriation Bill [B23B-2020] from seven organisations. Submissions came from the Jacob Zuma Foundation, Indigenous First Nation Advocacy South Africa, Centre for Social Justice, Office of the Valuer-General, AfriForum, South African Agri Initiative, Agri SA and the First Ixam Nation Office.
The Jacob Zuma Foundation stated it was opposing the Bill for eight reasons. It asserted that the Bill did not address the racially discriminatory laws and practices which had been in place for the largest part of the twentieth century, especially those related to land ownership, and was continuing to deny indigenous citizens rightful ownership and solutions of how to address the unequal distribution of land in the country. The Bill was not showing a commitment to eradicate the inequalities and injustices of the past, and would further enhance skewed land ownership and land use patterns where historically disadvantaged indigenous South Africans did not own the majority of the productive agricultural land.
The Indigenous First Nation Advocacy South Africa rejected the Bill, stating there was no point in discussing land matters when the indigenous people of the Khoi and San were not given recognition -- they had been the first people to live on the land in question before other people came to settle on it. If one wanted social cohesion, there was a need to recognise the people who first settled in the land before others came.
The Centre for Social Justice supported the idea of having a Bill of this nature because the law on expropriation was antiquated. The current Act was not appropriate for the present time because it had been enacted in 1975, when the country was implementing apartheid laws. It stated the Bill was not introducing expropriation, but it was realigning expropriation with the Constitution while introducing and regulating the possibility of nil compensation in specified circumstances. It welcomed the Bill in the belief that it could usher in the kind of transformative constitutionalism that would expand the frontiers of land justice and social justice for ordinary people who had been negatively affected by the predatory and corrupt abuse of power in the exercise of expropriation and related regulatory authority over land, using loopholes in the current Expropriation Act.
The Office of the Valuer-General said all of the proposed amendments fell under Chapter 3 of the Expropriation Bill -- the investigation and valuation of property -- and proposed a new section should be added in this section. It proposed that the expropriating authority should collaborate with the organ of state that specialises in valuations for land reform or expropriation to determine the criteria for the determination of value. It further proposed the expropriating authority should collaborate with the organ of state that specialises in valuations for land reform or expropriation, to determine procedures and guidelines, including the method of valuation for the valuation of properties, the manner in which a valuation must be performed and any other relevant factors.
AfriForum was adamant that the Expropriation Bill should not be passed because it would cause economic devastation, contribute towards a food security crisis, and enable human rights abuses. Further, various sections of the Bill were unconstitutional and could, and would, be challenged in the courts successfully. If this Bill were to become law, it would deprive citizens of their constitutional right to private property. The destruction of the right to private property, through this Bill, would negatively affect foreign and domestic investment and job creation. Expropriation without compensation would also be a violation of international law. The right to private property in this country should be protected, rather than destroyed. The focus should be on fixing the legitimate process of land restitution that had already been in place.
The South African Agri Initiative said the Bill was irrational in its current form, as it failed to provide clear instances where expropriation with nil compensation may be appropriate. Certain provisions of the Bill were vague and might result in arbitrary deprivation of property. The Amended Expropriation Bill still preempted the legislative process and was in conflict with section 25(3) of the Constitution. The stated objective of the Bill in identifying instances of nil compensation remained unattainable due to vague provisions.
Agri SA said the proposed definition of expropriation was limiting the concept to instances where the state acquired rights to property. This excluded statutory limitations that undermined the economic utilisation of property or dismantled its contents from the concept of expropriation if they did not include the transfer of proprietary rights to the expropriator. While the Constitution provided for the courts to consider all the factors to arrive at nil compensation, this was the exception. By legislating for specified cases for nil compensation, expectations were created for taking land at no value. It pointed out Zimbabwe had been an example of a policy of nil compensation. Millions of Zimbabweans had fled the country, and the country that was once a net exporter of food was now reliant on international food aid.
The First Ixam Nation Office proposed that definitions be inserted to be clear and to assist litigants, the judiciary and arbitrators with a clear definition of conceptual terms and keywords, which provide for unambiguous interpretation of the law. It supported Section 12(3) (a-e) of the Bill, as it allowed for a less rigid approach to allow for other considerations. As this Bill fell within functional areas listed in Schedule 4, it should be implemented in accordance with Section 76(3) of the Constitution.
Members sought the views of the presenters on the Bill allowing the state to expropriate property and unused land; the inclusion of public interest in this process; reconciliation of demands for expropriation of land since 1652; expropriation without compensation; counter-offer proposals to be inserted in the Bill; expropriation of property dispossessed before June 1913; and acceptance and rejection of compensation agreements between the participants and the state.
Submissions on Expropriation Bill
Jacob Zuma Foundation
The Jacob Zuma Foundation stated they were opposing the Bill for a number of reasons:
- The Bill did not address the racially discriminatory laws and practices which were in place for the largest part of the twentieth century, especially those related to land ownership. The application of these discriminatory laws and practices has resulted in extreme inequalities in relation to land ownership and land use.
- It did not recognise that post-apartheid South Africa was facing a variety of challenges with respect to land restitution to the indigenous citizens that emanated from the injustices caused by apartheid.
- The current Bill continues to deny indigenous citizens rightful ownership and solutions for how to address the unequal distribution of land in the country
- The Bill crafted by the South African government was not showing commitment to eradicating the inequalities and injustices of the past. Failure was due to the three pillars -- restitution, land redistribution, and tenure security.
- It would further enhance skewed land ownership and land use patterns where historically disadvantaged indigenous South Africans do not own the majority of the productive agricultural land.
- It did not take into consideration the historical context of land reform and the rights associated in interpreting land reform within its textual context.
- The Bill did not meet the established norms and legal constitutional obligations to indigenous citizens.
- Finally, it did not recognise the necessity for further legislative interventions, such as forced expropriations. The Foundation further stated it was of the view there should be no undue restriction on land claims. Therefore, the Bill was taking a narrow prescriptive approach and nullified the indigenous black people of South Africa.
See attached for full submission
Indigenous First Nation Advocacy South Africa (IFNASA)
Mr Anthony Williams, IFNASA representative, wanted to establish from the Committee Members to whom they had referred when talking about African people. He said it was strange that people referred to as Africans were from the Bantu and Nguni communities, to the exclusion of the first indigenous people of the San and Khoi. This was the conversation the Committee should have on this matter.
He then requested the Committee to consider three things:
- constitutional recognition;
- equitable access to land; and
- recognition of the first indigenous people.
On the issue of constitutional recognition, he said if one did not talk about recognition within the Constitution about first indigenous people – the Khoi, San and sub-groups - it was a mistake because one could not talk of land without recognising these people. The Constitution had made some provisions for equitable access to land, but since the advent of democracy, nothing had been seen in this regard.
He wondered if it was possible to talk about land without the identity and language of the people, because if one wanted social cohesion, there was a need to recognise the people who first settled in the land before others came. It was important for the state and those running it to understand there were people who were in this land long before others came to settle on it because the land was intertwined with them, and they were the land.
Mr Williams noted that the notorious section 25, subsection (7), of the Constitution, had unjustly ruled and prejudiced against the dignity of the Indigenous First Nation as espoused in the preamble of the Constitution and access to land rights. This piece of law was unsound, and was based on colonial conquest philosophy (Native Land Act No 30 of 1913). Section 25 subsection (8) petitions the state to make exceptions when it highlights that "no provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36 (1)." He noted that the state did make provision for such exceptions, but it lacked adequate consultation with the Indigenous First Nation, as advocated for by the constitution section 72 (a), including international and indigenous law.
He said they were rejecting the concept of “accommodation” outright by the Department of Rural Development and Land Reform (DRDLR) because they wanted an honest round table discussion with the state.
He said the Bill had failed to understand the importance of why there was a need for conversation and talk of a negotiated settlement. In the absence of that, there was nothing to talk about. There was a need to talk about expropriation without compensation. IFNASA had recognised the land reform efforts of the South African government over more than 20 years. However, it wanted to officially register, through this submission, that the process was insensitive, uncaring and callous, while the programmes were confusing, random and incoherent, as contemplated in the Constitution in section 41 subsection 1 (c).
Mr Williams said steps should be taken to expedite the restitution process for the indigenous people, and he pointed out even the United Nations had recognised that the indigenous people had been on this land before many others settled on it.
See attached for full submission
Centre for Social Justice (CSJ)
Prof Thuli Madonsela, Director, CSJ, said they supported the idea of having a Bill of this nature because the law on expropriation was antiquated. It was inappropriate for our time, because it was enacted in 1975 when the country implemented apartheid laws. Anything that came during that time was not acceptable. The Bill was not introducing expropriation, but was realigning expropriation with the Constitution while introducing and regulating the possibility of nil compensation in specified circumstances.
The CSJ welcomed the Expropriation Bill in the belief that it could usher in the kind of transformative constitutionalism that expanded the frontiers of land justice and social justice for ordinary people who were negatively affected by the predatory and corrupt abuse of power in the exercise of expropriation and related regulatory authority over land, using loopholes in the current Expropriation Act.
While the Bill could also contribute to an accelerated pace of land reform, land restitution and sustainable development, the nil compensation provisions required some caution regarding the policy proficiency and proportionality underpinning them.
Prof Madonsela said the Bill offered the opportunity to test the implicit constitutional permission of expropriation without compensation, and without changing the Constitution. It should provide clarification of the constitutionality of nil compensation under section 25, where appropriate. Clause 29 should recognise the subjects of customary law, and needed clearer compensation parameters.
She pointed out that the CSJ was recommending the Bill should be proceeded with, as the 1975 Act was unconscionably inefficient and socially unjust, thus violating its constitutional duty. The Constitution allowed expropriation with or without compensation. but the latter was circumscribed by 225 and section 36. A holistic policy framework that limited speculation about the intentions processes, target beneficiaries and anticipated impact, could help make a more compelling case for the Bill. Conducting a social and economic impact assessment systems (SEIAS) test to predictively assess the policy proficiency and proportionality of choices in the Bill was not only in line with sections 25 and 36 of the Constitution, but was also prescribed by the SEIAS. The social justice impact assessment matrix (SJIAM) would ensure fidelity with social justice commitment and equality duty, as per the preamble, section 9, section 7, section 195 (1)(c), (d) and (e) and section 237.
See attached for full submission
Office of the Valuer-General (OVG)
Mr Tshenolo Masoleng, Senior Manager, OVG, informed the Committee that all the proposed amendments fell under Chapter 3 (Investigation and Valuation of Property) of the Expropriation Bill. The OVG was proposing a new section to be added to this section. It proposed that the expropriating authority must collaborate with the organ of state that specialised in valuations for land reform or expropriation to determine the criteria for the determination of value.
Although the proposed amendments did not explicitly prescribe the nature and form of collaboration, it was suggested the collaboration should be founded upon the following:
- Defined key areas of collaboration regarding property valuations for expropriation purposes;
- Defined governance processes;
- Roles and responsibilities;
- Services offered;
- Defined technology and infrastructure requirements;
- Funding; and
- Defined platforms of engagements, including frequency.
The above should be part of a signed agreement between the expropriating authority and the relevant state organ. The criteria for the determination of the value would assist in defining requirements and qualifications for conducting such valuations, defining rules for valuers who were responsible for such valuations, and adhering to compliance with the Property Valuers Profession Act, 2000.
He said the expropriating authority should collaborate with the organ of state that specialises in valuations for land reform or expropriation to determine procedures and guidelines, including the method of valuation for the valuation of properties, the manner in which a valuation must be performed, and any other relevant factors. Procedures and guidelines would assist with ensuring alignment with the relevant legislation and standards that govern real estate and property management activities which included, but were not limited to, the following:
- Constitution of the Republic of South Africa (Act No. 108 of 1996);
- Municipal Property Rates Act, 2004;
- Municipal Finance Management Act, 2003;
- Public Finance Management Act (PFMA);
- International Valuation Standards (IVSC);
In addition, the expropriating authority should empower the specified organ of state to develop and implement a system to monitor compliance with the criteria and procedures. Such compliance monitoring system would assist with the following:
- Providing oversight, quality assurance, and review processes for the technical elements of valuation;
- Monitoring the ongoing integrity of valuation services provided by the valuers who were conducting valuations for expropriation;
- Management, maintenance and coordination of the valuations data; and
- Supporting downstream processes with the necessary insight regarding property values and impact on budgets, expenditure, etc.
Lastly, the expropriating authority should collaborate with the organ of state that specialises in valuations for land reform or expropriation, to define and implement a valuation report format that must reflect such opinions, statements and information as may be required or prescribed. The report must reflect an opinion or conclusion on the valuation of the property which was the subject of the valuation and must include all relevant information, including an explanation of how a value was determined and the methodology utilised in determining the value. Such a valuation report would assist with the following:
- Consistency in terms of conducting valuations and the documentation of critical valuations data;
- Generating a seamless repository of valuations data;
- Standard and accessible valuations data for reference and analytics and purposes; and
- Ability to provide expert advice, including expert valuations' witness in a court of law with ease
See attached for full submission
Mr Ernst van Zyl, Head: Public Relations, Afriforum, said the Expropriation Bill should not pass because it would cause economic devastation, contribute towards a food security crisis, and enable human rights abuses. Further, various sections of the Bill were unconstitutional and could, and would, be challenged in the courts successfully.
If this Bill were to become law, it would deprive citizens of their constitutional right to private property. The destruction of the right to private property through this Bill would negatively affect foreign and domestic investment and job creation. It would only enable further wrongs to be committed.
According to an extensive poll, the vast majority of people in South Africa regarded the need for land reform as a very low priority. The three main problems identified were employment, education and crime. This would come as no surprise to anyone who was not increasingly disconnected from the man on the street. The so-called “hunger for land” was largely a myth, particularly about rural or agricultural land. South Africa had been urbanising at a rapid rate, not ruralising. About 80% of all land claims were lodged in urban areas. It was also a well-documented fact that more than 90% of land claimants over the years had declared that they would prefer money as compensation, rather than for land to be restored to their ownership – this was according to government's own statistics. The hunger was for jobs, an end to corruption, quality education and safe streets, not land.
He had heard many politicians saying the land that would be prioritised for expropriation without compensation would be fallow land. Land often left unused or fallow by farmers was land that needed to be left to recover and regain its fertility, instead of farming on it every year. Farming was a complex business. There was no evidence that this Bill would empower the majority of South Africans, or produce economic growth or jobs. The Bill resulted from a set of ideologies that had been tested and failed horribly and repeatedly. History had told them that tampering with property rights, central planning and excessive government control did not lead to economic growth, nor to increased levels of equality. It always led to the contrary -- economic decline, human rights violations, corruption, and greater inequality.
Mr Van Zyl said expropriation without compensation would be a violation of international law. The European Court of Human Rights had held unequivocally that expropriation without market-related compensation would violate international human rights standards.
Lastly, he indicated that AfriForum was demanding the Bill not be passed, and that the right to private property in this country be protected rather than destroyed. The focus should be on fixing the legitimate process of land restitution that had already been in place. Emphasis should be on protecting the constitutional right to private property. Countless studies have shown that protecting and enforcing private property was one of the key factors facilitating economic growth, job creation, investment (both foreign and domestic) and political stability.
See attached for full submission
South African Agri Initiative (SAAI)/ Transvaalse Landbou Unie (TLU)
Dr Theo de Jager, Board Chairperson, SAAI, said the Bill was irrational in its current form as it failed to provide clear instances where expropriation with nil compensation may be appropriate. The Bill remained premature and undermined the legislative process related to the draft Constitution Eighteenth Amendment Bill. Certain provisions of the Bill were vague and might result in arbitrary deprivations of property. The Amended Expropriation Bill still preempted the legislative process and conflicted with section 25(3) of the Constitution. The stated objective of the Bill in identifying instances of nil compensation remained unattainable due to the vague provisions. Vague and unfair provisions may lead to arbitrary deprivations of property, contravening the Constitution.
He said it was important to highlight the global lessons from restitution programmes, and emphasised the need for better implementation rather than resorting to expropriation without compensation. It was also important to stress the inevitability of compensation in such cases, and to reiterate the reservation of rights, including the possibility of future submissions.
See attached for full submission
Ms Amy Barclay, Head of Land Centre of Excellence (COE), said the proposed definition of expropriation was limiting the concept to instances where the state acquired rights in property. This definition excluded statutory limitations that undermined the economic utilisation of property or dismantled its content from the concept of expropriation if they did not include the transfer of proprietary rights to the expropriator. In other words, the definition excluded constructive expropriation.
She said the Constitution provided for the courts to consider all the factors and arrive at nil compensation, but it was the exception. By legislating for specified cases for nil compensation, expectations were created for taking land at no value. Clause 12(3) states that any land expropriated in the public interest could potentially be targeted for nil compensation. The scope for expropriation at nil compensation was potentially quite broad.
In modern economies, the ownership of assets such as land has been used to unlock financial value and as leverage to build economic prosperity. It was an undisputed fact that the best-faring economies in the world had used this system to build wealth, economic growth and prosperity. This stimulated employment and investment, but depended on a guarantee of private property ownership as a fundamental premise.
Legally, the financial institutions hold the title deeds for any land, subject to financing. A decrease in the value of the land asset would expose financial institutions to a level of risk. Overall, a weakening of the balance sheet would limit the farmer’s ability to raise financing. Where the food system comes under pressure, as described above, food inflation may increase tremendously, and this may lead to massive food insecurity.
She pointed out that Zimbabwe had been an example of a policy of nil compensation. Millions of Zimbabweans had fled the country, and the country that was once a net exporter of food was now reliant on international food aid.
See attached for full submission
The First Ixam Nation Office
Adv Andre Paries, Black Lawyers Association (Western Cape), said this important Bill provided for the repeal of Act 63 of 1975, and to provide for matters connected therewith to be regulated by legislation.
He said the first and second submissions proposed that definitions be inserted to be clear and to assist litigants, the judiciary and arbitrators with a clear definition of conceptual terms and key words, which provide for unambiguous interpretation of the law. He proposed the definition of “property” and “amount of compensation” should be inserted and clarified. It would limit the frequency of disputes, which may arise by claimants against property owners. The insertion would guard against delays in the public interest and facilitate the legislation being fit for purpose. Court findings were often the subject of further litigation and delayed by appeals and reviews generally due to conceptual contestation over what the legislature had intended at the time, and the interpretation of the words in the enacted legislation.
The third submission supported Section 12(3) (a-e) of the Bill. It allowed for a less rigid approach to allow for other considerations, by -- but not limited to -- being inserted in this section. An example to consider was the segment of 99-year leases, which may be justified by reading previous or current lease-holding agreements, if the latter was still deemed lawful. As landowners, the validity of these types of leases and even trusts may be contested or disproven by accurate land audits, cadastral survey reports on a case-by-case basis in mediation, or by litigation in court processes.
The fourth submission was that this Bill falls within functional areas listed in Schedule 4, and should be implemented in accordance with Section 76(3) of the Constitution. Consultative processes should capture and be binding on all indigenous peoples who were deprived of land and property with provincial and national accord.
The fifth submission was grounded on Section 25(6) of the Constitution: “A person or community whose tenure of land is legally insecure as a result of past 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.”
Lastly, he said the people of the First IXam nation were landless and campaigned for rights to property. Their chiefs and people were marginalised and fell short of the glory of secure tenure of land and property. In Article 10 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, South Africa officially signed a declaration in 2016 that “indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.”
See attached for full submission
Jacob Zuma Foundation
Mr M Rayi (ANC, Eastern Cape) commented that the presentation was educational and had had a historical context. The Bill was about expropriating property for public purposes and had time limits. He did not see how the Bill acted contrary to the expropriation of property for public purposes.
Mr T Brauteseth (DA, KZN) said the Bill was not about expropriation without compensation. He wanted to know how Mr Zuma was reconciling his demands for land expropriation since 1652.
Former President Zuma explained they were dealing with matters that had been put to all of them in 1913, but the land issue began when Jan van Riebeeck arrived in the country in 1652. He asked why there was an avoidance of discussing matters of land before the arrival of Van Riebeeck. There was no reason why that could not be dealt with, and he questioned why the focus was on the period after 1913. If there were wars and people lost their land, then that should be corrected. There was no reason to be selective. They took the land and made it legal. Therefore, one should find better methods of resolving this matter peacefully, before people start to complain. He said 13% of the land had been given to the majority, while the rest of the land was given to the minority. This was an indication that land was taken and registered legally. That had created a problem. There were eight major wars where many people had died. Land spaces in rural areas had been given for housing because the population had been growing and people had been left with little space for tilling the land. He then suggested the correction of the incorrect ways of running SA.
The Chairperson wanted to know why the powers of the Minister of Public Works had not been tested during the time when Mr Zuma was in power, because the Expropriation Act empowered the Minister to expropriate. He said the Restitution of Land Act of 2014 had been set aside by the courts when land claims were re-opened. This illustrates an attempt by Parliament to address the raised concerns.
Former President Zuma responded that the issue of land in SA was a serious matter. There had been discussions and negotiations about the matter to find solutions. The decision to re-open land claims had been taken because it was seen to be solving all the problems, but it had become clear later it was not solving any problems. The process did not reach rural areas -- that was why it was agreed it needed to be re-opened. There had been complaints to the President because some people did not understand the documents and needed help, hence the process was re-opened. In rural areas, people were not able to till the land because the 13% of land allocated to them was no longer enough, due to the growing population. The laws were passed by the "white" Parliament. Hence, Parliament should deal with the matters that have been raised.
Indigenous First Nation Advocacy SA
Mr Brauteseth remarked it was not clear whether the organisation was rejecting the Bill or not, because its submission did not refer to any clauses of the current Bill that it had problems with. There seemed to be a disjuncture in what it was presenting.
Mr Rayi commented it was not acceptable to raise matters that were not in the Constitution, because it acted as a guide. Parliament was doing what it could on section 25, subsection 27, and that was limiting them to 1913. The Bill had been passed in the National Assembly. Rejection of the Bill would be regarded as an amendment by the National Assembly. Mr Williams should clarify whether his organisation was rejecting the Bill.
The Chairperson wanted to know the view of Mr Williams on ensuring there was consistency in how expropriation would be done. Was he aware of a range of laws and overarching legislation passed after 1996, like the Communal Land Rights Act and many others?
Mr Williams responded that it was clear one could not talk about the Bill when one had not addressed matters in the Constitution. In the absence of recognition in the Constitution, there was nothing to talk about. They were rejecting the Bill because the Constitution did not recognise indigenous people. It excluded the majority of indigenous and Bantu people.
The Chairperson said the Constitution was making provision for expropriation to take place.
Mr Williams wondered if the Expropriation Bill would be able to expropriate land before 1913 and beyond if permission was granted to expropriate without compensation. He said the legislation had no power to correct what was wrong. If the Bill was not allowing people to celebrate what they had before 1913 and after, then they were rejecting it.
Centre for Social Justice
Mr Brauteseth asked what the comment of Prof Madonsela was about the Bill allowing the state to expropriate property. He remarked that the Bill was not a land reform one, but an expropriation bill, and that the public interest was included this time. He enquired if the Bill would allow the state to take pieces of unused land, because section 12 of the Bill made provision for no compensation.
Prof Madonsela said expropriation went beyond the land and focused on fixed, not removable, property. Some of the laws had been prevented from being tested by those who had the power. South Africa was redressing the consequences of its evil past. They were in a worse situation when it came to implementing land reforms. South Africa had to differ from other countries regarding matters of expropriation, but should not create new injustices in the process. Tools were available for the government to deal with nil compensation on unused land. On what the implications would be for the rural areas, she indicated that sometimes there were distortions in customary law. The Bill should not enforce these perverse practices. Consideration should be given to women. The Bill had been aligned with the Constitution, and something should be done to review the Bill, and refinements would be suggested.
Mr Rayi wanted to understand if the Expropriation Act, when it was passed, would expropriate property that had been dispossessed before June 1913, and asked for her view on the socio-economic assessment received from the Department of Public Works and Infrastructure.
Prof Madonsela said the Bill was not a land reform bill, but an Expropriation Bill. Land should be separated from other forms of property. Its impact assessment did not really deal with policy proficiency. The SEIAS was dealing with unintended consequences. A social justice matrix has been suggested to the SEIAS. Their assessment had been that the poor would continue to pay more. The SEIAS and the matrix could look at how the Bill would have an impact on different groups.
The Chairperson wanted to know the view of Prof Madonsela on the agreement between the participants, including counter-offers, in the expropriation process, because the recipient must state if he/she accepted or disputes the expropriation.
Prof Madonsela said she liked the idea that the prices determined by the state must be confirmed by the courts. The cost of litigation should be borne by the state. Social justice was for treating everyone fairly.
Office of the Valuer-General
Mr Brauteseth indicated the purpose here was to deal with state land and organs. He wanted the Valuer-General to comment on a situation when the state dealt with private property.
Mr Masoleng said the OVG was operating autonomously from the Department to ensure matters of the citizens were being handled evenly. When a property valuer faced work that required specialist skills, they were allowed to bring in a specialist valuer. Provisions were made for that in technical matters.
The Chairperson wanted to know which Departments were defined for expropriation; if there had been interaction between the Department of Public Works and the Department of Agriculture; and if the regulations could not cover the three proposals regarding the Bill.
Mr Masoleng said regulations had remained a good option, because they served a good purpose. The Act had always been superior to the regulations. He said broad definitions of valuations in specified fields would be good additions, and this would bring value to the properties.
Mr Brauteseth remarked that the OVG had existed to support state organs, even though it interacted with private citizens. 100% of its matters had been between the state and private citizens, and were mainly for restitution.
Mr Brauteseth asked the organisation to comment on the public's interest in the Bill.
Mr Van Zyl responded that the public interest clause could be manipulated to mean everything one wanted it to mean. It was not a good qualifier because it could mean anything.
Mr Rayi said what had come from Afriforum was a political debate, and was not addressing the concerns about the Bill. Its input was not helping the Committee.
Mr Van Zyl countered that Afriforum was dealing with the matter in detail. The specifics were contained in the submission.
The Chairperson commented that the definition of expropriation did not contemplate the transference to a third party directly, and asked the view of the Afriforum concerning the two proposals on counter-offers that would be inserted in the Bill.
Mr Van Zyl said the Bill should not get to the point of transfers to a third party. Land should not be expropriated without compensation. The Bill would be challenged successfully in the constitutional court if there was expropriation without compensation.
Mr Brauteseth wanted to know if Afriforum had had engagements with farming communities and tribal authorities on the loss of unused land.
Mr Van Zyl stated a unit within the organisation dealt with stakeholder engagements on land ownership. Discussions with traditional communities had been successful, and the engagements had indicated the communities did not want expropriation without compensation.
Mr Rayi sought clarity on why the organisation did not have a problem with expropriation, but was concerned only with nil expropriation.
The Chairperson asked what the view of SAAI was concerning the Expropriation Act of 1975, which granted the state the right to expropriate. He said there was a need to align this with the Constitution. There had been a need for overarching legislation in line with the Constitution. He also asked what the view of SAAI was regarding the counter-offer proposal that would be inserted in the Bill.
Mr De Jager responded that any state needed an Expropriation Act. The quarrel was on how expropriation should be done. The Constitution did not indicate whether the state should take a certain percentage of the discount or not. The needs of the investor should be considered. Currently, the agriculture sector was in debt up to R200 billion – that was money owed by the farmers to the banks. It had been difficult to deal with young farmers who wanted to start farming because sending them to the banks had not been easy. What you put in your farm should be given back to you when expropriation happens. There was no alternative for market-related compensation.
Mr Rayi remarked that the submission, in general, was against expropriation because it cited property rights, nil compensation, food security, etc. He said the examples made about Zimbabwe did not take into account the fact that Britain did not honour the Lancaster House agreement.
Ms Barclay emphasised that Zimbabwe was not the focus -- this had been the results emanating from the erosion of property rights. This scares off people who want to invest in the country. The SA government had done its homework in coming up with pieces of legislation. The main issue had been around the protection of property rights.
The Chairperson wanted to know the view of Agri SA on the counter-offer that would be inserted in the Bill, because the Department had made provisions for the counter-offer.
Ms Barclay said the counter-claim would resolve a portion of it, though it did not solve the problem.
Mr Brauteseth asked if Agri SA had contemplated the lopsided nature of things, like the kind of legal assistance it would need when dealing with the courts.
Ms Barclay said they had considered the lopsidedness of the process. For example, if one lost one's property and could not generate income, then the matter should go to the courts. The costs of the courts should be taken into account by all. They were aware of the lopsidedness of the process.
The First Ixam Nation Office
Adv Parries referred to the counter-offer, and said the Bill had not made provision for offers and counter-offers. A dispute should be mediated out of court, if it has not reached the court.
Mr Rayi asked if it was really necessary to have an amount, because it could depreciate over many years. He asked if section 25 (8) and section 27 would be able to address matters before 1913.
Adv Parries said there was a difference between the two sections, and both sections were applicable. The measures might include land reforms. There was a difference between land reform and expropriation. The amount should be in the public interest to have the property expropriated, considering the taxes, municipal rates and other things involved in the property.
Stakeholders were thanked for their participation. Those that could not be heard from today, will be considered at another time.
The meeting was adjourned.
- CSJ Presentation
- JG Zuma Foundation Submission
- SERI Presentation
- Adv. Andre Paries Submission
- NEASA Submission
- Kluitjeskraal CET Submission
- MCSA Presentation
- IRR Presentation
- IFNASA Submission
- AfriForum Submission
- COSATU Presentation
- Saai & TLU SA Presentation
- BASA Presentation
- OVG Comments
- FOR SA Presentation
- Agri SA Presentation
- Kluitjeskraal CET Comments
- FW de Klerk Presentation
- [B23B—2020] Expropriation Bill
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