Expropriation Bill: deliberations & Negotiating Mandate

Meeting report

Opening remarks
The Chairperson noted that the Committee would continue where it left off the previous day. She said that the Committee would deliberate on the Matrix of Submissions but would only look at those matters that Mr Ndou did not respond to at the meeting the previous day. After that, the Committee would compile its negotiating mandate, which was due on Wednesday, 15 November. After compiling its negotiating mandate, the Committee would break for an hour to allow the Committee legal advisor to check if they are in line with the constitutional boundaries.

Deliberations on the Matrix of Submissions on the Expropriation Bill [B23B-2020]
The Chairperson read a comment from Mr Petros Dladla, a member of the public who argued that the Bill is unreasonable. Mr Dladla said section 21 of the Constitution was sufficient to expropriate land with or without compensation, taking each case on merit or according to court rulings. The Bill had come about because of the national government’s failure to allocate available land, failure to support recipients of land to make it productive, and failure to monitor the sale of returned land by recipients who become landless again and complain.

Mr Livhuwani Ndou, national Department of Public Works (DPW), said all the issues raised by Mr Dladla fell under the ambit of the Department of Agriculture, Land Reform and Rural Development and had been dealt with on Monday.

The Chairperson read a comment from Mr Sean Jacobs, a member of the public who expressed his strong objection to the proposed Expropriation Bill, which he stated is a clear violation of property rights and will have a devastating impact on the South African economy. He believes that a person’s rights to their property are sacrosanct and should be protected under all circumstances. Property ownership is a fundamental pillar of individual liberty, economic prosperity, and social stability. It serves as the cornerstone for entrepreneurship, investment, and wealth creation, fostering a sense of security and stability in society. Recognising property rights is crucial for incentivising innovation, fostering economic growth, and attracting both domestic and foreign investment. Allowing government to dispossess individuals of their property, even under the pretence of public interest, sets a dangerous precedent that undermines the principles of personal freedom and ownership. While it is essential to balance public welfare and developmental needs, any infringement upon property rights must be subject to strict scrutiny and justifiable cause. He urged government to consider the proposed Expropriation Bill in its current form and seek a more balanced approach that respects and upholds the property rights of individuals. By safeguarding these rights, an environment that encourages economic growth, social stability, and long-term prosperity for all citizens can be fostered. 

Mr Ndou noted the input.

The Chairperson read a submission from Ms Tanya Bippert, a member of the public from Theewaterskloof. First, she said that idle state-owned land should be considered for expropriation first before private land. She questioned the selection criteria for the expropriation authority and whether the authority has the power to question the court of law’s findings, noting that corruption would be a concern in that regard. If any South African heritage groups can prove that state-owned property is heritage ground, does the Bill make provision for a heritage group to apply for expropriation of state-owned land as well as private land?

Mr Ndou noted the issue around corruption and that the question regarding the expropriation of state-owned land must be provided for in the regulations so that there is a straightforward answer to it. The question regarding the powers of the expropriation authority was dealt with in the meeting on Monday, and the court is the final arbiter in settling expropriation disputes.

The Chairperson read a submission from Ms Nina Bird, a member of the public, who submitted that the Bill should specifically include for the public purpose and public interest in the prioritising of the preservation and protection of the sacred heritage sites and natural sanctuary of its water, indigenous plants, and animals. The preservation for the function of cultural heritage education centres together with community kraals/schools with the official recognition of the !Xam and Khoi languages.

Mr Ndou said the issue was dealt with.

The Chairperson read the remaining inputs and Mr Ndou said they were already addressed at yesterday’s meeting.

Mr I Sileku (DA) was concerned about whether people understood what the Expropriation Bill was designed to achieve and was worried whether the language barrier in drafting the Bill might have been the problem.

Ms C Murray (DA) noted the concerns and comments from religious groups and understood the concern about disseminating information on the Bill. She said it also speaks to the procedural aspect of the Bill, but on the other hand, people often use public participation processes as an opportunity to vent or to be heard by government.

Adv Romeo Maasdorp, Legal Advisor, Western Cape Provincial Parliament, said the point raised by Mr Sileku was critical because the quality of a law results from the quality of inputs and the quality of understanding and participation received. Although it is understandable that members of the public need to vent, when Parliament is trying to make a law as profound as the Expropriation Bill, it is not offering opportunities for people to vent, but wants inputs in respect of the proposed provision of the Bill. The observation by Mr Sileku was critical, especially on the eve of a new term, where quality of law-making will depend on the lawmakers with support from Parliament. He urged the Chairperson to call on the institution, mindful of the role of Parliament as Constitutional actors, to interrogate the quality, the extent, and the nature of public participation so that quality laws are produced.

Mr P de Villiers (GOOD) said many of the comments were not about the Bill but about the frustrations regarding poor service delivery, and government should be held accountable for this.

Mr T Klaas (EFF) said that what should matter regarding the passing of the Expropriation Bill is whether people agree with the Bill or not, instead of what they are saying in their comments.

The Chairperson said that the Matrix represents the voices of the people of the Western Cape and the contribution of the communities is taken to formulate the negotiating mandates. Mr Sileku said some of the comments made by the public did not indicate whether they supported or did not support the Bill, and the Committee must submit what was said by communities to the National Council of Provinces (NCOP). The question by Adv Maasdorp was whether the Committee got enough submissions on the Bill to formulate its negotiating mandate, working towards the final mandate that will represent the Western Cape communities. When the Bill was referred to the Committee, it was acknowledged that the public would want to have a say, and if there were enough funds, public hearings would have been held in every community in the province. The Committee requested the Public Education unit of Parliament to go to the communities to share information about how the Bill will affect the people, and the Committee believed that that was done. The unfortunate part was that when the Committee went to do the public hearings, the Committee’s expectations were not met in terms of the understanding of the Bill.

Mr Klaas said although the submission will be that people do not understand the Bill, there are those who did share their inputs on the Bill, stating whether they supported it or not. The submission must say the Committee made an effort to educate communities about the Bill, but there are some that were left behind due to challenges in terms of financial constraints.

The Chairperson continued reading through the Matrix of Submissions.

Mr Sileku said there is a lot that still must be done regarding improving public participation in the province.

Mr Klaas said there must be fairness when discussing public participation because some people lose interest in anything that involves them as communities. There must be a way to incentivise people to participate in these processes and the people who do attend these processes must feel appreciated.

The Chairperson asked Members to focus on the Matrix because the Committee still needed to prepare its negotiating mandate. She said there are about 7 million community members in the province, but there were only about 82 individual submissions and eight submissions from organisations, and those are the voices that will be representing the province in the Expropriation Bill.

Mr Ndou said there must be a thorough discussion on public participation at the beginning of the 7th Administration and a way to standardise it must be discussed. According to him, on the basis that councillors and municipal leaders were there, they represented the voices of their communities, meaning that the voice of the province was heard through the community representatives who are the voices of their communities.

The Chairperson continued reading through the Matrix of Submissions and then asked the officials to summarise the responses to the Matrix.

Mr Ndou said he was interested in the negotiating mandate that would come from the Committee. He said the Bill is currently in the hands of Parliament, and most suggestions made by the Department often do not find expression on the document because it is not going through oversight processes. He asked Members to ensure that all the issues that were flagged as unclear in the Bill and the proposals that were made were raised in the negotiating mandate.

Ms Pamela Masiko-Kambala, Director: Infrastructure Policy and Research, Western Cape Department of Infrastructure, thanked the Committee for allowing her Department to be part of the process and making it comfortable. She said it is clear that expropriation invokes certain images, views and feelings for people, and perhaps it could have been anticipated that there would be some confusion because in the submissions, people made restitution claims, talked about their housing issues, and they are all somehow linked to acquired land and property. Those could have been clarified and explained in some parts.

Mr Sileku thanked the officials of the DPW and the Western Cape Department of Infrastructure for their presence since the process began on behalf of the Chairperson of the Standing Committee on Infrastructure in the Western Cape and the members of the Committee. He wished them safe travels, a blessed festive season, and a blessed 2024.

The Chairperson also thanked Mr Nicolas Dias, State Law Advisor, for his presence in the two days, and allowed Members a break while the Committee compiled its negotiating mandate.

Compilation of the negotiating mandate: general discussion
The Procedural Officer said the negotiating mandate stage means the Committee is submitting the negotiating parameters on what it proposes as amendments according to the input given in the submissions or what it agrees with. This is a time when Committee Members give their thoughts on the inputs and whether they agree with the proposed amendments by all the stakeholders that submitted, and then give a way forward in drafting a mandate report for the NCOP.

Ms Murray said they saw throughout the course of the public hearings that there were several substantive and procedural concerns regarding the Expropriation Bill, and it was very alarming, especially in the discussion around meaningful land reform. “We cannot engage in land reform for the sake of land reform, that does not result in anything that benefits and improves the lives of those who are most impoverished in our communities, and it is our responsibility as lawmakers to put out legislation that makes a difference”, she said. She would not support the Bill and would not confer responsibility to the NCOP to support the Bill.

The first theme that came out of the public participation process and in the meeting was inadequate just administration and considerations around public interest, in terms of how far awareness and communication around the Bill had gone. A lot of the public submissions do not speak to the Bill. Looking at the processes following other spheres of government, can the Committee be satisfied that every single measure was taken to get the message out there to ensure that members of the community knew the Bill before them?

Secondly, she was concerned about the broad definition of ‘property’ and the scope of expropriation. Although she understood that it aims to adopt the definition in the Constitution, she felt it still left the door open for many things that might concern how far government is willing to go in terms of expropriating property. If the purpose of the Bill is to institute meaningful land reform, why does it need to expand into other forms of property? This might be important to raise in the negotiating mandate.

Thirdly, procedural steps and ambiguous compensation were another theme that stood out. While the expropriation procedure outlined in the Bill seems comprehensive, it lacks criteria in valuations and the subjective market price and potentially opens the door for unjust compensation. There also seems to be an absence of clear benchmarks for market values versus municipal values, which could lead to arbitrary or inequitable compensation that undermines property rights substantially. She felt substantial questions and concerns were still unanswered in the Bill. In particular, how property will be defined, whether it can be defined more narrowly to prevent arbitrary expropriation, and whether there is an assurance that representation by affected parties will meaningfully influence decisions (for example, whether a person who has taken out a bond for a property would have a voice if it is decided that the property will be expropriated). The other substantial question that is still unanswered is how the Bill will prioritise the urgent need for land reform and housing rather than allowing expropriation for other purposes.

Another theme was legal and administrative implications. The Bill’s interaction with other laws and other administrative processes, especially the Title Deeds Office and traditional land ownership, seemed unclear and could have unintended disruptive consequences. Lastly, she was concerned that the nil compensation provisions, although allowed for in the Constitution, could undermine the entire concept of private property as it is understood in South Africa. Without exhaustive checks, this could lead to widespread expropriation, ultimately acting against the Bill's desire to create genuine land reform.

She concluded that the Bill in its current form is flawed and could jeopardise property rights for all South Africans, deter investment, and stifle economic growth in the country. The Bill will not meet its intended purpose of meaningful land reform, but instead could hinder it. The Bill needs substantial revision to create meaningful land reform. She suggested that the Committee not accept the Bill and that it needs to be thoroughly redrafted if it is to serve the purpose of meaningful land reform, and responsibility or duty should not be conferred to the NCOP to support the Bill.

Mr De Villiers said it was not about supporting or not supporting the Bill, but looking at the bigger picture. It was about what could be introduced into the Bill that could make a meaningful contribution. He said the province might be outnumbered by other provinces and was afraid that the province might miss out on an opportunity to constructively change the Bill to make it meaningful. He said the Committee should not be distracted by the little things and rather focus on the things it could control.

The Chairperson said the negotiating mandate was more about trying to have an influence on the Bill than about whether the Committee supported it or not. It was more about the Committee tweaking some parts of the Bill to speak more to what communities wanted, or to point out clauses that did not make sense, for example.

Mr Klaas said he did not support the Bill because of the nil compensation clause. Government did not discuss this clause with the people, but rather decided on their behalf, and they did not mention which land would be occupied, whether private land, government land, or land owned by other countries. Government was supposed to send the people who are responsible for drafting the Bill, alongside Members of Parliament, to teach people about the Bill. There was also land that included mines. The Bill must specify the type of land that could and could not be expropriated, so that people could understand. The Committee needed to go back to the communities to educate them about the Bill and there should be a plan to get people participating in the consultation processes.

Mr Sileku said he would not speak on all the amendments because there were a lot of unclear clauses in the Bill that the Department could not clarify. The one clause that caused a lot of uncertainty was clause 12, and there was also uncertainty about the powers that had been given to the Minister to expropriate land that belonged to municipalities. There was also the question of who would bear the cost in a case where a municipality owed arrears with the land under contention, and what would be done if the municipality did not mention the debt to the expropriating authority. There was also the question of the delay in the compensation and whether interest would accrue if the payment was delayed. The issue of litigation also came up multiple times in the submissions because it was unclear who would foot the Bill and who would be responsible. There were a lot of questions, and the Department could not answer them. There had been no commitment that they would be considered in the amendments to make the Bill workable.

Regarding the public participation issue, he said one of the challenges was the language barrier, as the Bill was written in English, while the residents of the province were mostly Afrikaans speaking. The Committee had also asked for an extension from the NCOP so that it could get more views representing the people of the Western Cape. With all those issues, unclear answers, and the suggestions from the clauses that some phrases must be re-written and rephrased, it would not make sense to give a mandate to the NCOP to support the Bill in its current form. When it was time to consider the final negotiating mandate, maybe the Committee would see how and whether the Department has responded to all of its concerns.

Compilation of the negotiating mandate: clause-by-clause deliberations
The Chairperson asked the Members to speak directly to the clauses they want to be changed because before the Committee presented their final negotiating mandates, the Department would have responded to the comments made by the Committee. She then read the proposed changes on clauses and comments made for the Procedural Officer to compile into the negotiating mandate. Members suggested the clauses that needed to be included in the negotiating mandate as needing to be clarified and those that need to be amended or redrafted.

The Committee agreed to leave the definition of “court” in the Bill. It spent considerable time discussing the definition of “property” in the Bill.

Ms Murray said that according to the Western Cape Government (WCG), section 25(4)(b) of the Constitution merely provided that property was not limited to land and that the draft definition was unhelpful. She suggested that in remarking on property, the Bill needed to remark in terms of the definition in relation to the intended purpose of the Bill, which is to affect meaningful land reform. If they are to insert a definition of property, that definition must align with the purpose or the ambit of the Bill itself.

The Chairperson asked who determined the purpose of the Bill in terms of expropriation of property.

Ms Murray did not think, given the nature of the Bill and its extensive need for redrafting, that the Committee was in a position to define property, but it was important for it to note unanswered questions in its negotiating mandate. For example, the Committee could enquire about what property meant, who the property was intended for, who the property belonged to, the kind of property under consideration, and who determined the kind of property used. She said they could use the opportunity to find out what the Bill meant by property, because the Committee itself could not define that.

Mr Sileku said the WCG document did not say how property should be defined. He suggested that the Committee let the document go as it was for the NCOP to decide because there were different interpretations of what they defined as property in the context of expropriation.

The Chairperson agreed that the meaning of property must be clarified and it should also entail who determines the public purpose and public interest.

Adv Maasdorp agreed that property was not sufficiently defined or circumscribed in the Constitution, which was fine because the Constitution is a framework document. However, in proposed legislation of this nature, it was a glaring omission to not define “property”. Property and land were used interchangeably in the Bill, which does not help. One of the submissions from the members of the public was that the moment they heard of expropriation, they became anxious. Property included all manner of things; it could even include things that did not exist yet, such as a crop that would be harvested in three years. Property could even be intangible things, so it was a glaring omission to not define it in the Bill, especially in a Bill that is as impactful and anxiety-laden as this one. It would help to define property for the purposes of the Bill as simply “immovable property or land”. That would have been a prudent and informed suggestion, but to just invoke section 25 of the Constitution which does not even define property, was a cop-out, and was poor drafting. It did not help the people who would be affected to understand the extent of their vulnerability to the impact of the Bill.

Ms Murray asked if there were any legal instruments that the Committee could rely on that defined immovable property or land that could be drawn into the definition.

Adv Maasdorp said there are legal sources such as textbooks on the law of property, where property was defined. However, if the Committee wanted to make a useful contribution regarding the definition of property in the Bill, they could say that inasmuch as property is defined somewhere else, it was defined as land and immovable property for purposes of the Bill.

The Chairperson continued reading the suggested changes in clauses from the WCG submission document.

Members agreed to add the remainder of the suggested changes to the Committee’s negotiating mandate.

Mr De Villiers asked the Procedural Officers to call the Members when they were finished drafting the negotiating mandate.

The Chairperson said the first person they would call when they were done would be Adv Maasdorp, who would check if everything was in order. Then the Committee would look at the document to see if it covered everything that had been discussed and then it would adopt the report. She adjourned the meeting for lunch, giving the Procedural Officers and Adv Maasdorp time to prepare the document.

Adoption of the negotiating mandate
The Chairperson read through the Draft Committee Report, stating the negotiating mandate set by the Standing Committee on Infrastructure. Along with a discussion of proposed changes, it reflected the Committee’s unanimous decision not to support the Bill by including the following declaration:

The Standing Committee on Infrastructure, having considered the subject of the Expropriation Bill [B23B-2020] (NCOP) referred to the Committee in accordance with standing Rule 212, confers on the Western Cape’s delegation in the NCOP the authority to not support the Bill.

The Chairperson read the Committee’s clause-by-clause recommendations on the Bill and asked for a mover for the adoption of the negotiating mandate.

Ms Murray moved for the adoption and was seconded by Mr Sileku.

The Chairperson said the negotiating mandate was duly adopted. She thanked Adv Maasdorp, the Procedural Officers, and the Members, reassuring them they would receive a copy of the negotiating mandate.

The meeting was adjourned.