Expropriation Bill: deliberations

Meeting report

Opening remarks

The Chairperson welcomed all the Members and officials from the National Department of Public Works and Infrastructure and the Western Cape Department of Infrastructure to the meeting. She asked the Members and officials in the chambers to introduce themselves, followed by those attending the meeting online. Apologies from Members of the Committee and officials from the departments were noted.

She said the Committee would deliberate on the matrix of submissions on the Expropriation Bill, noting that they would deal with about 90 pages for the day. She then asked the National Council of Provinces (NCOP) Delegates to make any remarks that he had before the meeting proceeded. 

Mr J Londt (DA) appreciated the Western Cape Provincial Parliament (WCPP) for taking the Bill seriously, as some of the other provinces do not give detailed input into considerations as the Western Cape does, which made his life easier as a representative of the Western Cape province in the NCOP. He said the NCOP was trying to ensure that legislation is not rushed coming towards the end of the Sixth Administration, but unfortunately, the legislation is at a higher frequency at this stage which puts a lot of pressure on the Members and the staff.

He said the NCOP received all inputs from the provinces in the past through their own public hearings and whatever would be decided by the Committee would be what he would take back to the NCOP.

The Chairperson thanked Mr Londt and noted the challenge faced by the Committee. As they were going through the matrix, there was an outcry from communities in the Western Cape, which felt that not enough public hearings were done to reach some rural areas. The Chairperson had communicated with the NCOP House Chairperson to consider giving them time until the end of February, considering the time of the WCPP and to see if they could get some days to do more public hearings in the rural areas, but unfortunately, they were only given one week, which was the previous week.

In the negotiating mandate, the Committee will ensure that the message from communities is captured. Not enough time was allocated for public hearings in the rural areas. The Committee will continue raising the issue so that it could hopefully influence a change of heart so that when the negotiating mandates go to the NCOP, they allow for the public hearings to be done. 

Consolidated Comments by Western Cape Government Departments on the Expropriation Bill [B23B-2020]

The Chairperson explained that the Committee would start with Annexure A of the Expropriation Bill, starting with the consolidated comments from all the departments of the Western Cape Government.

The Chairperson read the proposed amendment on the definitions and wording, which proposed that the Bill must explicitly consider the implication of zoning and land use. It was not clear from the Bill in the case of the expropriation of land whether the expropriation is for a purpose other than the current use of the land the necessary permissions and authorisations will be obtained before submission of the transfer of the land to the expropriating authority. It proposed that the expressed provision must be made that all authorisations must be obtained prior to the registration of transfer if the land is to be used for a purpose different to its current purpose.

Mr Livhuwani Ndou, from the National Department of Public Works, said the proposal meant that there must be expressed provision and a clear picture to guide what should be flagged in engagements with other provinces. The National office formulated a Committee because it received five reports the previous Wednesday, as most of the issues covered in the Western Cape’s consolidated comments are also covered by other provinces, so the Committee is consolidating a report which will consolidate all the answers to the points that are raised. The Department also brought the expertise of Senior Counsel to provide guidance in aligning the responses to the Constitution of the country.

He said he had thought he would be given a platform to share some inputs into the process, but the responses can be given comprehensively once the inputs from the Western Cape have been received. He proposed that he be allowed to assist in some of the issues, and then before Tuesday, the Department can submit the comprehensive report, including the discussion on the questions posed in the meeting.

The Chairperson said it would help to receive the report because there must be a negotiating mandate from the Western Cape, and if the report was available, it would have helped the Committee consider it while it developed the negotiating mandate. Currently, the Committee must consider the matrix to ensure that it develops the negotiating mandate from the Western Cape communities. The challenge is on the dates, because the due date for the negotiating mandates is the 15th, so it would not help to have the report coming in on Tuesday when Wednesday is the 15th. She then asked if Members had any comments on the definitions and wording.

Mr P Marran (ANC) said the process was started for two reasons, either for public purpose or public interest, but on point B of the clause, although it says land reform, it does not include the wording of public interest.

Mr Ndou said in the definition of public purpose and public interest, examples were made. In terms of public purpose, an example of construction of dams was given, and in public interest, an example of the parties committed to land reform issues as covered by the Constitution. It is covered, but it is not explicitly expressed.

The Chairperson said Mr Marran’s comment would be included in the negotiation mandate because it was a valid point.

She read the next general comment, which reads that throughout the text, reference is made to time periods calculated in days, noting that clarity is required on whether time periods refer to calendar or working days.

Mr Ndou said they normally refer to working days and not calendar days and what necessitated the reference to working days is that the holidays and the December period are not factored in for the Expropriation Bill, which was why there were issues when the Bill was gazetted on the first week of December. In this Bill, holidays and weekends are excluded.

The Chairperson said the next general comment on definitions read as follows: The period referred to in clause 2(2)(b): “20 December to 7 January” may be problematic as many businesses close on 15 December, the day before the public holiday, and many people take annual vacation leave as from the day following the public holiday. It is proposed that the period is reworded as 5 December to 7 January.

Mr Ndou said this was covered by the point he raised about being careful about the December period and public holidays. He noted that they would ensure that the period is changed on the basis of the comments made in that regard. He said any dates related to public holidays must not be included in the Bill.

The Chairperson read the Western Cape’s comment on Clause 1, which suggested that any reference to ‘Departments’ in the Bill should also include the relevant provincial department if appropriate in a particular instance.

Mr Ndou said the organs of state that have expropriating powers include the province, municipalities, and the National Department of Public Works.

Mr Nicolas Dias, Legal Services, Department of the Premier, said the crux of the comment was that if ‘Department’ is left like that in the Bill, then it will be taken as if it refers to the national department so they wanted to ensure that the definition of the word encompasses the other spheres of government.

Mr Ndou said he understood the context and suggested it should be left like that and could be dealt with further in the negotiations.

The Chairperson read the comment on the definition of ‘court’, which proposed that the draft definition of “court” is aligned fully with the definition of “court” in section 1 of the Promotion of Administrative Justice Act (PAJA).

Mr Ndou said the Department is currently considering the proposal as it forms part of the consolidated report that the Department is creating with a specific focus on about 11 thematic areas. The Department is considering defining “court” to align with the Promotion of Access to Administrative Justice Act (PAJA) and to see how best they can include some elements not covered in the draft definition. He agreed with the comment.

Mr Dias asked if the comments were the ones that were submitted this year or the ones that were submitted in the prior year because they seemed outdated. It should be indicated on the first page of the first comments that it is commenting on the Expropriation Bill, 2023.

The Committee asked the Procedural Officer which document they were reading from.

The Committee Procedural Officer said the document they were reading from was dated 2021 and was signed by the Premier. A comparative document was also done by Legal Services, comparing the first one done in 2021 with the last one.

The Chairperson said they do not have the recent document, which was not submitted to the Committee. The last one that the Committee received was the 2021 document.

Mr Dias said he had an email with confirmation of delivery to the Chairperson’s office which was sent on 30 June 2023, and the comments were sent to [email protected]

The Chairperson said some documents were lost during the year so it might have been one of them.

Mr Marran said he had seen a letter from the Premier’s Office a while ago, but it was dated 2021.

The Chairperson said the 2021 document was the one they were working on, but Mr Dias said there was a document that was sent more recently with the consolidated comments from the Western Cape government departments, which is the one they were looking for so the Committee could work on. She asked Mr Dias to email it to the Procedural Officer.

Mr Dias said he would send it.

The Committee Secretary said she received a document from Mr Dias which was a six-page summary on the difference between the most recent document and the 2021 comments.

The Chairperson said the six-page document excluded some of the comments from 2021.

Mr Dias said the comparison document was not meant to include comments, but it was meant to identify for purposes of developing the comments. The comments would be very different. He said he sent two documents to the Procedural Officer, which should have the annexures.

The Chairperson read through Part A of the general comments in the 2023 consolidated document from the Western Cape government departments and noted that it could be used for the negotiating mandate after the clause-to-clause discussion was done. She suggested that the Committee continue discussing the 2021 document as it dealt with the clause-to-clause comments that would be important for the negotiating mandates.

Mr Dias said the document he sent begins with the clause-by-clause discussion from page six, and the comments are similar to the 2021 document but there are some differences in some ways.

The Chairperson thanked Mr Dias for the guidance and agreed to use Annexure C of the 2023 comments from the Western Cape government document. She read the suggestion regarding the definition of property, which proposed that the draft definition of property be reconsidered to provide clearly and unambiguously what property will fall within the ambit of the draft Bill. 

Mr Ndou said the matter was raised regarding the definition being broad as it was just taken from the Constitution of the country. He said the Constitution is the supreme law of the country and anything that is done outside of the law of the country is unconstitutional, which is why they took the definition as is, but the Department agrees with the comment that the definition must be revisited and narrowed down to be specific about the property referred to.

Mr I Sileku (DA) found it difficult to understand the process that the Committee followed regarding the comments because Mr Ndou would not be able to commit to the Committee on the changes that would be made to the Bill because that process will be taken to the NCOP when they deal with the Bill. It would have been better if the Department had received the comments before the meeting and then they would deal with some of the issues. He said the process could have just been to inform the Department of the concerns of the Western Cape government and the Department would deal with them through the negotiating mandates.

The Chairperson said the idea was for the Committee to try to influence the changes they would want to see in the Bill. She said the property issue would continue being raised because the PAJA came with hard lessons and gave power to land invasions, so when speaking about property, the Bill must be clear on the kind of property being referred to. The PAIA was not meant to promote land invasion, but people exploited the loopholes that it came with.

Mr Marran said section 25 of the Constitution speaks of the property clause, and property does not only refer to land, but also to other things. The Constitution is broad, and if property is not defined in terms of the Expropriation Bill, it can be up for interpretation, which could cause problems for the state.

Mr Ndou said the input made by Mr Sileku made sense, but the discussion intended to hear all the inputs from different stakeholders so that when all the inputs are consolidated in the negotiating mandate, they are informed by all the inputs. It is difficult for the Department to commit because there will be another engagement on the 24th which will be informed by the inputs coming from all the provinces.

Mr Sileku said the South African Constitution is one of the youngest in the world and there is a possibility that the definition of property in the Constitution might not be sufficient. As much as property is defined in the Constitution, is there a possibility that the definition might not be vague? Is there a simpler way that property could be defined in this Bill to ensure that there is no confusion on which property is referred to?

Mr Marran asked if the 1975 Expropriation Act specifically identified which property could be expropriated. If not, does it mean any property can be appropriated if the amendment of the Bill is not agreed to.

Mr Ndou said this was a principal Act and an act comes with regulations, which give guidance on how the Act is implemented, so in the negotiating mandates, it must be flagged that regulations must be explicit in their definition of property to guide in terms of the implementation. Even in the 1975 Act, some specific regulations and guidelines were specific in terms of the kind of property that was referred to. 

Ms Pamela Masiko-Kambala, Director: Infrastructure Policy and Research, WC Department of Infrastructure, said in the last meeting that they had, it was raised that the assumption about property is that someone owns it, but one member raised a point that there are properties that are not owned, but belong to God, so it is important to know what property can be expropriated and the property that cannot.

Mr Ndou said the issue of covering registered and non-registered rights was trying to deal with the property debate, so there is an element referring to unregistered rights in the Bill, and any property that does not belong to an individual would be covered in that section of the Bill, but it does complicate matters further.

The Chairperson read the proposal on the draft definition on “public interest” which proposed that the definition of public interest must be reconsidered and redrafted.

Mr Ndou said the Bill talks about the court as the final arbiter in terms of making determinations covered in the Bill, so the definition is fine as it is.

Mr Dias said the comment does include what could be included in the definition of “public interest” and the court only deals with issues retrospectively, whereas if legislation says what something means upfront, the public can guide their behaviour rather than waiting for the public to clarify.

Mr Ndou said when you want to integrate and disintegrate the legacies of the past, that is part of land reform, but flagging it in the principal Act would mean the Bill will be long because several aspects of that would need to be pinned. He was unsure whether the Department would be able to be specific on all parts of the Bill rather than leaving some of the issues as broad as possible because they cover different aspects.

The Chairperson read the proposal on the draft definition of “public purpose” which proposed that the draft definition must be reconsidered and redrafted.

Mr Ndou said the court makes the final decision on what is reasonable and justifiable, but the comment is noted, and the redrafted definition will be considered.

Mr Sileku said the courts already have a backlog and the plea was just that the definitions are made to be more understandable to everybody. He asked that the definitions be simplified for the ordinary person to understand.

The Chairperson recalled a time at the public hearings when someone asked who would pay the legal fees.

Mr Ndou said there was a suggestion that there should be courts that are meant to deal specifically with land matters. The Department said they would tap in terms of the specific provision where matters such as restitution, and redistribution are dealt with, and not the ordinary courts where there are backlogs. The issue of access was also raised in that those with access to resources might benefit more from court proceedings. There should be specific resources to deal with elements of land, such as land reform. Before one goes to the court, they would have engaged through the arbitration process which does not need any money, so the court is the last stage after all the resources have been exhausted.

Mr Marran said in 1975 that when the Act came into effect, those deprived of their land and property did not have the courts or the money to their advantage. This process is to correct the wrongs of the past. It will not be perfect, but at least the Constitution of the country is one of the best in the world, and if an answer cannot be found, the court must be the arbiter.

Mr Dias said his role in the meeting was to assist with technical legal comments and anything policy-related must be asked to the Department.

The Chairperson said the proposal on clause 3(2((b) read as follows: given the concerns raised regarding the definitions of “public purpose” and “public interest”, it is proposed that guidance or clarity is provided on when organs of state may rely on this clause to distinguish engagement with land owners regarding expropriation from engagement that relates to, for example, the protection of biodiversity and ecology.

Mr Ndou said the guidance in the regulations will be explicit on the matter and will give a clear picture of how the matter can be addressed and how expropriation should be carried forward in that regard.

The Chairperson said the proposal on clause 3(4) read that provision should be made that partial expropriation will be subject to legislation regulating land use planning and management.

Mr Ndou said on this proposal, some cross-referencing between the legislation needed to be done, but when the Department dealt with the bilateral, it dealt with the Spatial Planning and Land Use Management Act (SPLUMA) and four other elements, and the proposal was also covered.

The Chairperson said the proposal on clause 4 read that the clause must be reconsidered to expressly provide that the powers of the Minister in clauses 3(20)(1) and 21(1) must be capable of delegation and assignment to municipalities.

Mr Ndou said the powers of the Minister are only restricted to the public works function and other organs of state that have powers to expropriate should use that to cross-refer to this because it is overarching. The comment is noted, but the Minister's powers have been defined in the Bill and are restricted to a specific function.

The Chairperson asked if Mr Ndou was implying that since provincial Departments dealing with Human settlements do not have the power to expropriate, the national Minister would delegate to the municipalities.

Mr Ndou said the Departments that do not have the power to expropriate would have to ask the national Minister to expropriate on their behalf.

The Chairperson said the proposal on clause 5(2)(a)(iii) read that clause 5(2) should be amended as follows: “subject to subsection (3) and any other applicable legislation, if the property is land, an expropriating authority may, in writing…”

Mr Ndou noted that they explicitly said that ‘if the property is land’ means they are qualifying the property as land and leaving the other types of property. He noted the proposal and said it must be discussed to see whether it will stand during the negotiations.

The Chairperson asked if it was not included in the report compiled by the Department.

Mr Ndou said he was unsure because the report compilation was incomplete, so it might or might not have been in it.

The Chairperson said clause 5(4)(d) read that paragraph 4 of the Memorandum on the Objects of the Bill does not indicate whether the South African Local Government Association (SALGA) was consulted on the development of the Bill.

Mr Ndou said SALGA was comprehensively consulted in its INC representation and contributed as part of the 50 000 comments that the Department received.

The Chairperson said the proposal on clause 5(4)(d)(iii) read that the request for information should also include the relevant authorisations required in terms of the National Environmental Management Act (NEMA) and the Specific Environmental Management Act (SEMA).

Mr Ndou noted the proposal.

The Chairperson said on clause 5(5)(b), clarity is required on whether consultation would be required in respect of a right in land.

Mr Ndou said the Bill talks about all relevant stakeholders and all affected people, so that element is covered because all the people affected by the property in question will be consulted.

Ms Masiko-Kambala said from reading the clause, it might have been an interpretation issue of property because it speaks of property as relating to land only, so the question might have been on what processes would have been followed if it was not land. So, the Department might need to spell out who is consulted in the case where the property in question is not land.

The Chairperson said the proposal on clause 5(5)(b)(ii) requested that a timeframe of 20 days be included regarding state departments.

Mr Ndou said the proposal would need to be explicit in defining what it means by a timeframe of 20 days, considering the working days, weekends, and public holidays.

Mr P De Villiers (GOOD) said the timeframes would be important to add, and as much as they need to be specific, the timeframes should be looked at in the context that people are awaiting a service to be delivered.

Mr Ndou agreed that timeframes are important to service delivery and noted the comment, adding that the Department will see how explicitly the timeframes can be defined.

The Chairperson said the proposal on clause 5(6)(a) read that possible gender issues associated with the implementation of the Act should be identified and considered. It is proposed that operational protocols for the implementation of the Act are developed to address this.

Mr Ndou said the issue is noted and will find expression in the regulations.

Mr Marran said he was covered by Mr Ndou but wondered what the case would be if the aggrieved party was male.

Ms Masiko-Kambala said this was more an issue of duty of care and bringing in the principle of being considerate in the case that an officer enters someone’s property, and they are not comfortable with them being there. It is to say the authority must be mindful of those kinds of realities.

Mr Marran asked if the proposal was to allow people the right or opportunity to choose who can do the inspections.

The Chairperson said the Bill says unless the information has already been obtained, the expropriating authority must deliver a notice to the following persons to provide the names and addresses of all holders of rights in the property known to them, as well as the particulars of those rights by written requirement in 20 days of delivery of the notice:

• The owner
• A person in charge of the property
• The holder of a right known to the expropriating authority
• The mortgagee

She asked if this is for the operational issues to enter and if it will be covered in the regulations, why there is a specific clause talking about the issue, and added that perhaps the people who should respond to that question are those who sponsored the comment.

The proposal on clause 5(7) is that the clause should be reconsidered.

Mr Ndou said the recommendation to reconsider the clause was noted, but the sponsors would need to specify their reasoning.

The Chairperson said the proposal on clause 5(8) is that it should be reconsidered and redrafted.

Mr Ndou said the recommendation of reconsidering and redrafting the clause was noted, but the sponsors would need to specify their reasoning.

The Chairperson said the proposal on clause 6 read that the clause should be reconsidered and an obligation on an expropriating authority to consider the comments received from the affected municipality should be added.

Mr Ndou said when the Department said relevant stakeholders and all affected people should be considered with their input, municipalities were included in the process in terms of where the development is in their area. He did not understand why the proposal to include municipalities was included in the proposal because municipalities would have been involved in the entire process. Perhaps clarity could be sought from the sponsors of the proposal to get a picture of what the message they were trying to bring across.

Ms Maseko-Kambala said clause six references the Municipal Manager as having responsibility rather than the municipal council, so the comment might be saying that the responsibility should be with the council rather than the municipal manager.

Mr Ndou said Ms Maseko-Kambala was correct because they were referring to the municipality's accounting officer, as the accounting officer is the municipal manager, and the executive officer is the mayor. He said the Department could find a way to best to put it in the legislation because the decisions taken in the municipal council are carried by the municipal manager as the accounting officer.

The Chairperson said clause 6(1) says when considering whether to expropriate land, an expropriating authority must, if not already established, make a written request to the municipal manager of the municipality where the land is situated to explain how the contemplated expropriation will affect municipal planning. She said according to her understanding, municipal planning refers to the municipal council and not the municipal manager.

Mr Ndou said the municipal manager plays a critical role in terms of items that are supposed to be debated in the council, so it was a question of how it can be put into the legislation, but the intention was to say the accounting officer, which is the municipal manager, must take the lead in the process.

The Chairperson said it needs to be reworded so that it can be explicit and clear. She allowed the members and the officials a 10-minute body break.

The Chairperson said the Western Cape Government proposed that clause 6(1) be amended to include provincial planning and the provincial department responsible for provincial planning.

Mr Ndou noted the proposed amendment.

The Chairperson said the Western Cape Government proposed that clause 7(2) be amended as follows: a) the word “physical” be inserted between the words “the” and “address” in paragraph (d) of this subclause; b) the following phrase is added at the end of paragraph (d): “and the website where the said document may be accessed.”; c) the first line of paragraph (j) is amended to read “a directive to the owner or owners, mortgage or mortgagees, or the holders or holders of a right…”; and d) paragraph (j) is amended by inserting after the phrase “the names and addresses” a coma, followed by the phrase “including email addresses,”.

Mr Ndou noted the proposed amendment.

The Chairperson said the WCG’s proposal on clause 7(2)(h) was that the clause should be amended to oblige the expropriating authority to assist the recipient where necessary to respond to the notice, and the thirty-day period to respond to the directive should be suspended where the recipient of the directive requests this assistance.

Mr Ndou said the proposal was that the timeline of assistance is short and must be extended and noted that he agrees with the proposal, pending further discussion during the negotiating mandates.

The Chairperson said the WCG proposed that clauses 7(6)(a) and (b) be reconsidered and redrafted.

Mr Ndou noted the issue raised and said the regulations will be specific on how the issues that were flagged will be implemented or addressed.

The Chairperson asked whether the Bill would guide someone who needed just read the clause and did not have much information on it to interpret it the way it is supposed to be interpreted.

Mr Ndou said the principal Act is drafted at a high level and the regulations indicate exactly what needs to be done and provide action points to support the implementation of the Act. The regulations address the issues that are often put vaguely in the principal Act. The Expropriation Bill is a contentious Bill, hence the need for consultation to be followed during the drafting of the regulations so that all the issues pointed out through public engagements can be addressed and clarified fully in the regulations.

Mr De Villiers said the document seemed well-worked but was bothered by the fact that they received the same answer whenever there were proposals for the laws to be reconsidered or redrafted.

The Chairperson said the process was that the Committee would first deal with the comments from the Western Cape Government and hear the comments from the national government on those comments. The Committee would thereafter deal with the public submissions on the Bill, which the national Department would respond to as well, then on the next morning, the Committee would formulate its own negotiating mandate on where it wants to see the changes which will be sent to the NCOP to represent the WCPP’s contribution on the Bill.

The Western Cape Government also proposed that clauses 7(6)(a) and (b) be reconsidered and redrafted.

Mr Ndou noted the proposal.

The Chairperson asked if the clause should not be removed because it captures an agreement between two parties.

Mr Ndou said it cannot be removed without it being considered in case its removal may affect other parts of the Bill. It may need to be redrafted and written in another way, but it cannot be removed currently because it may affect or change the entire Bill.

Mr Marran asked if an agreement between an expropriating agent and a land owner is reached for the expropriation of land for a fee, would that be considered expropriation with compensation? He did not understand why the clause needed to be changed and felt that while some may call the agreement between the owner and the expropriating agent a sale, some may argue that it is expropriation with compensation.

Mr Ndou said this goes back to the definition of expropriation and its interpretation. He noted that the Bill would need to be revisited to check for the definition of expropriation.

The Chairperson said the WCG proposed that clause 8(3)(c), after the word “address”, the phrase “or digital repository” is inserted.

Mr Ndou noted the suggestion.

The Chairperson said the WCG proposed that on Clause 8(3)(e), the Bill must make provision for a minimum number of days between the date of expropriation and the date of service of the expropriation date.

Mr Ndou noted the suggestion.

The Chairperson said the WCG also proposed that clause 8(3)(g) must be reconsidered.

Mr Ndou noted the suggestion.

The Chairperson said on clause 9(2)(a), the WCG proposed that it is crucial that a provision is included in the Bill to the effect that the realities of farming should be considered when the dates of transfer of possession are concluded.

Mr Ndou noted the suggestion.

The Chairperson said on clause 9(3)(c), the WCG proposed that the expropriated holder or owner must provide proof of ongoing maintenance costs. The expropriating authority must verify the costs. It is proposed that cluse 9(3)(c) is qualified by placing a restriction on the period for which maintenance costs are payable up to the date of transfer of possession.

Mr Ndou noted the suggestion.

The Chairperson said on clause 9(5), the WCG proposed that measures to minimise the cost of the owner from whom property is expropriated should be explored, such as rates holidays, etc.

Mr Ndou noted the suggestion.

The Chairperson said on clause 10, the WCG proposed that clause 10(7) is redrafted to provide expressly that the power in clause 10(6) may only be exercised after the verification process in subclause (3) is completed and after the expropriating authority accepts the claim and the conditions in clause 10(6) have been met.

Mr Ndou noted the suggestion.

The Chairperson said on clause 11, the WCG proposed that clause 11(1) be reconsidered and redrafted to state that the clause is subject to clause 12(3).

Mr Ndou noted the suggestion.

The Chairperson said on clauses 12(1) and (2), the WCG proposed that clauses (1) and (2) be reconsidered and redrafted. It would perhaps be appropriate to provide in 12(1) that the value of private investment in the property, like the value of state investment and subsidy in the property, is also considered. It is also proposed that the “value of private investment” is included as further criteria to be considered during the calculation of the compensation to be paid.

Mr Ndou said perhaps the method, formula and calculation of the investment needs to be considered beyond just the proposal, noting that this was one of the most useful proposals from the WCG.

The Chairperson said on clause 12(2)(c), the WCG supported the principle of evaluating the lawfulness of the enhancement prior to valuing the property, but it proposed that clause 12(3) be reconsidered and redrafted.

Mr Ndou said the national Department of Public Works will receive negotiating mandates from the different provinces and is drafting responses to them. The proposal seemed to question the constitutionality of clause 12(3), and when the Department consulted about that clause, it received confidence that the clause was in line with the Constitution. He said he could not give an explicit answer in the meeting, and perhaps the answer will be provided clearly during the engagements with the negotiating mandates.

The Chairperson said that on clause 12(4), the WCG said the clause non-textually amends section 23 of the Land Reform (Labour Tenants) Act, and it introduces confusion and the risk of inconsistent implementation.

Mr Ndou said there is a Department of Agriculture and Land Reform, and this issue was cited as something that needed to be considered in clause 12(3). This is an acquisition method that could assist in Land Reform, but most questions want the Department to fall within the ambit of Agriculture and Land Reform, while the standard procedure is being provided for the entire state.

Mr Sileku said he would be interested to be in the NCOP meeting to hear how the Department will deal with the section.

Mr Marran agreed with Mr Ndou that this is just a framework for all departments, and going into land reform would mean the Department would also deal with matters of water and sanitation, etc. It should be dealt with in the regulations.

The Chairperson said on clause 12(5), the WCG proposed that the clause be moved further up to form part of the list of factors under clause 12(1).

Mr Ndou said it was a contradiction from the WCG to want to remove a clause and then also suggest how to make it better and noted that perhaps this could be dealt with in the Department’s response report to the negotiating mandates of the provinces.

The Chairperson said the WCG proposed that clause 13 provides that interest on compensation payable for expropriation is capped by the in duplum rule.

Mr Ndou noted the suggestion.

The Chairperson said on clause 14(3), the WCG proposed that provision should be made for a process to be followed by the parties for the expropriating authority to revise the offer.

Mr Ndou noted the suggestion.

The Chairperson said the WCG proposed that clause 15(3) be reconsidered and redrafted.

Mr Ndou noted the suggestion.

The Chairperson said the WCG proposed that clause 17(5) be reconsidered and redrafted.

Mr Ndou noted the suggestion.

The Chairperson said on clause 16(1), the WCG said it is not clear what the situation would be if the amount for compensation offered is less than the amount of the mortgage on the property and clarity is required.

Mr Ndou said parties affected should engage each other before expropriation happens and clarity in this regard should also be in the regulations of the Bill to clarify what is supposed to happen.

The Chairperson said on clause 17(3)(b), the WCG asked for clarity on what the reimbursement payment arrangements will be in respect of any overpayment of pro rata rates by the expropriating authority to the expropriated owner or holder.

Mr Ndou said that clarity should be provided in the regulations.

The Chairperson said the WCG asked for clause 17(4)(a) to be reconsidered.

Mr Ndou noted the suggestion.

The Chairperson said on clause 19(1), the WCG proposed that mediation is used for all expropriation-related disputes.

Mr Ndou said this is valuable input that can be used throughout the process, provided it does not have financial implications.

The Chairperson said on clauses 19(6), (7), and (8), the WCG proposed that a challenge in terms of process or compliance with the Act should suspend the expropriation, pending the court’s determination in this regard.

Mr Ndou noted the proposal.

The Chairperson said the WCG proposed that clause 20 be reconsidered and redrafted.

Mr Ndou noted the proposal but noted some contradictions between the process and urgent expropriation during a national disaster.

The Chairperson said the WCG proposed that clause 20(10) be deleted and clause 20(6) is redrafted to include a standard of repair as proposed under the comment on clause 5(7).

Mr Ndou noted the proposal.

The Chairperson said on clause 20(7), the WCG needed clarity on whether the compensation would be offered for the extended period of temporary use. If so, provision must be made accordingly.

Mr Ndou said this issue is covered by the Bill and the regulations should deal with the modality.

The Chairperson said the WCG proposed that clause 21(3)(b) be reconsidered and that the references to the Registrar of Deeds and to title deeds be deleted.

Mr Ndou said the proposal will be considered to avoid contradictions.

The Chairperson said the WCG proposed that clause 25(2) be reconsidered and redrafted.

Mr Ndou noted the proposal.

The Chairperson said on clause 26(2)(b), the WCG proposed that the 20-day period be substituted with a 30-day period.

Mr Ndou said a 30-day period would be fine, provided it is within acceptable timeframes for public comments.

The Chairperson said the WCG proposed that clause 27 be reconsidered and redrafted.

Mr Ndou noted the proposal.

City of Cape Town’s Comment on the Expropriation Bill

The Chairperson said the comment from the City of Cape Town was that section 25(2) of the Constitution of the Republic of South Africa, 1996, states that property may be expropriated only in terms of law of general application, subject to compensation approved by a court of law. However, the Bill in its current form provides the specific instances where nil compensation would be deemed equitable. It is the city’s view that the Bill in its current form will not pass Constitutional mast. Although the city supports the objective of land reform as one of the means to bring about redress for the injustices of the past, the city cannot support a Bill that is in direct conflict with the provisions of the Constitution.

It is suggested that the “expropriated holder” be replaced with the “expropriated rights holder” or “expropriated holder of rights” to mirror a positive version of the term more clearly, as defined in section 1. Furthermore, the Bill specifies more clearly what qualifies as urgent expropriation. Although some suggestions are listed in chapter 7, it is suggested that this term is specifically defined in section 1 of the Bill.

The Chairperson read through the specific comments for the Committee clause-by-clause.

Mr Ndou said most of the comments from the City of Cape Town were repeating what was said before, but they seemed to be trying to figure out the role that a municipal manager should play and were also saying if the municipality is not the expropriating authority, consultations should be done. He said there is merit in what was raised by the city in that the regulations should provide guidance in terms of how some of the issues raised will be addressed.

AfriForum’s Comments on the Expropriation Bill

AfriForum submitted that the Bill should not be adopted as an Act of Parliament under the broad consideration that its adoption will have a devastating impact on all South African citizen’s lives in the context of home ownership, food security and economic devastation. Various sections of the Bill are unconstitutional and could be successfully challenged in the courts if the Bill is not revised before its adoption.

The Chairperson read AfriForum’s submission to the Committee.

Mr Ndou said the Department had heard all the presentations and received submissions from the organisations and suggested that he would provide a consolidated response to all of them after the Committee read all the submissions.

The Chairperson agreed and allowed a lunch break for an hour.

Agri SA’s submissions on the Expropriation Bill

The Chairperson said the Committee would look at the executive summary of Agri SA’s submission instead of reading the entire document.

In their submission, Agri SA highlighted that it represents the largest grouping of agricultural landowners and wants to ensure a sustainable and viable cultural sector. The organisation acknowledges the challenges of inequality, poverty, and unemployment, as well as the land dispensation of the past and that the farmers of today cannot be held solely accountable for historical events and cannot be required to bear the burden of addressing apartheid dispossession disproportionately. It also highlighted its support for free market principles and its view that expropriation should be a measure of last resort, noting that the land owners whose land is expropriated should always have recourse to the courts.

The Expropriation Bill in its current form will have a negative impact on our shared national commitment to building a more inclusive agricultural sector. It will weaken the protections afforded to private property and this could see an exodus of capital from the agricultural sector and the broader economy. The anticipated loss of jobs and investment will impact both emerging and established producers alike.

Agri SA also highlighted the importance of the public participation phase in the process as well as the need for South Africans to be heard on this critical Bill, and concluded that current landowners should receive prompt, adequate, and effective compensation, which will enable them to start anew somewhere else, and they should not be worse off because of the expropriation.

The Chairperson read the specific comments on the clauses.

Mr Ndou said he would read the responses crafted by the national Department of Public Works in relation to the inputs made by AfriForum, Agri SA, the FW De Klerk Foundation, and For Faith & Freedom, etc.

The Chairperson decided to read the summaries from all the organisations so that Mr Ndou could respond to all of them at once.

FW De Klerk Foundation’s comments on the Expropriation Bill

The Foundation agreed that there is a need to adopt the new Expropriation Act that will conform with the requirements of section 25 of the Constitution. However, the Expropriation Bill not only fails to provide an appropriate framework for the expropriation but is irreconcilable with the values that underlie the Constitution and will have very negative consequences for all the people of South Africa. Section 25 states that no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

The degree to which a law to deprive people of their property would be arbitrary would be determined by whether it would be reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. In assessing whether a law is arbitrary or not, the following requirements in section 36 of the Constitution would have to be considered:
The nature of the right
The importance of the purpose of the limitation
The nature and extent of the limitation
The relationship between the limitation and its purpose
Less restrictive means to achieve the purpose

The Foundation’s principal objection to the Bill is that although it and EWC would likely be used to target primarily the property rights of white South Africans, it would undermine the property rights and freedom of all South Africans. It would pose a threat to the 8.5 million black households that own their homes and the millions more households that occupy land in the traditional land without proper title deeds.

Banking Association of South Africa’s comments on the Expropriation Bill

The Chairperson said most of BASA’s comments on the Bill were based on concerns regarding interpretation of specific phrases, of which they made recommendations on what they should mean.

For Faith & Freedom’s comments on the Expropriation Bill

The Chairperson read through the clause-by-clause recommendations for the Committee.

DPW’s response to comments by stakeholders on the Expropriation Bill

Mr Ndou said after the Department finalises the Bill, it sends it to Parliament for the parliamentary processes, so some of the changes made in the Bill will have been made by the Portfolio Committee during the public participation procedures, and the Department is not allowed to change them, hence it cannot provide certain responses to some matters. He said the Department divided its responses to the different stakeholders into 11 thematic areas.

The first area was on the definition of “deliver” which came across for several stakeholders including the tension of clause 22. Agri SA and BASA proposed that clause 22 provide for delivery by email, and the Department supported that proposal and had raised the issue with the Portfolio Committee before, but it was not affected. The fact that it is raised again by other stakeholders means that it should be considered.

The second area was clause two on the definition of expropriation and the issue of excluding third-party transfers. Initially, the Department had advised the Portfolio Committee on the shortcomings that needed to be considered in the Bill, especially in relation to the definition of “public interest”, and that in doing so, the supreme law of the country ought not to be forgotten so that they do not craft a definition that is out of the scope of the Constitution.

Agri SA also made a point regarding the Constitutional Court interpretation of sections 25(1) and (2), emphasising the definition of deprivation versus expropriation without compensation. The Department consulted on the issue of public interest and public purpose, and subject to compensation, the Department tried to define what amounts to public interest and public purpose, as well as the amount that should be accrued based on those reflected definitions. The decision was that the Constitutional Court, as the highest decision-making bureau, should determine what amounts to public purpose and public interest.

The issue of the Land Court Bill came because several issues raised regarding the Bill are referred to the court as the final arbiter, meaning If there are no dedicated courts that will investigate land-related matters, there will be a backlog for the next many years. The Land Court Bill is also crucial as it includes some elements of expropriation, meaning there will be dedicated legal personnel dealing with expropriation matters. 

The Department also looked at the definition of expropriation in clause 2, of which the FW De Klerk Foundation spoke of constructive expropriation not being expressly included in the Bill. The Department noted the submission and said the NCOP will respond to that matter and see how best they can address the proposals. The question of jurisdiction will also need to be considered when dealing with that issue.

The definition of property was also brought forward in most presentation, and the question that stood out was whether the property the Bill referred to included intangible property, so an answer was needed in that regard. The answer to that question is also very broad in that it points back to the Constitution, saying property is defined by section 25 of the Constitution.

The Chairperson asked if referring to some definitions of the Constitution will not pose a challenge for the Department when they are creating the regulations.

Mr Ndou said regulations are supposed to be clear, meaning what is not clear in the Constitution and the Bill must be clarified in the regulations. If some of the issues are not flagged, they might pose a challenge during the creation of regulations, but the Department will pin the regulations based on the information that it receives and send them for inputs, which will also require some advice from the relevant people and institutions. The Office of the Chief State Law Advisor does not allow matters to go forward if they are not in line with the Constitution and certification is received based on the alignment of the regulations or opinions with the Constitution.

The Chairperson wanted to know which interpretation the regulations would be based on.

Mr Ndou said the final negotiating mandate will be on 6 December, which is when all the issues will be discussed and finalised.

He said the other issue that was raised was the temporary expropriation and urgent expropriation, which were clarified, but the main concern from stakeholders was that it might be subject to abuse and manipulation. In the Bill, the temporary expropriation will take a year, but the concern from stakeholders was on why the processes followed in the normal expropriation will not be followed and why only the natural disasters were identified because there might be other situations which would require temporary urgent expropriation. When this clause was created, it was done based on natural disasters, but there will be other opportunities to include other situations that would require temporary urgent expropriation.

Regarding clause 12(3), he said the Bill that was not signed into law by the President did not have clause 12(3), but it was a different Bill speaking to the repeal of the 1975 Act. There was a process of trying to amend section 25 of the Constitution, which did not work out because there was no majority for it to be amended. Clause 12(3) is coined around section 25 of the Constitution as it stands, and it allows for nil compensation to be paid for expropriation.

Mr Ndou said the Department will submit its consolidated response document which covers most of the issues raised by stakeholders on the appropriation Bill to the Committee. The only issue the document does not cover is what was sponsored by Prof. Thuli Madonsela at Stellenbosch University regarding changing the socio-economic impact assessment of the tool used by the Department. These issues would have had to be interpreted and debated in the past because the Bill is so advanced and there are issues that it seems to be unsure of, hence the tool must be relooked to identify if some of the issues could be detected.

The Chairperson said the most important report would be the working group report that the Department was formulating, and it would need to be submitted before Wednesday, 15 November.

Mr Ndou said he would ensure the document was sent to the Committee.

The Chairperson said the Committee will go through the matrix of the public hearings on the Expropriation Bill in its next meeting on 14 November, meaning that the meeting will be from 9am until 6pm because the Committee will also need to finalise its negotiating mandates for Wednesday the 15th.

The Members agreed.

The Chairperson thanked the Members, Mr Ndou and Ms Masiko-Kambala, for their engagement in the meeting.

The meeting was adjourned.