Expropriation Bill: proposed amendments; Economic Regulation of Transport Bill: final mandates

Meeting report

Expropriation Bill: NCOP proposed amendments (C-List)
Ms Phumelele Ngema, Parliamentary Legal Advisor, took the Committee through the C-List of NCOP proposed amendments to the Expropriation Bill (see document) .

Department request on Clause 20 Urgent Expropriation
Mr Masilo Maake, DDG: Policy and Regulation, asked that the DPWI legal counsel, Adv Uday Naidoo, give an input.

Adv Naidoo explained that in urgent circumstances, an expropriation does not follow the ordinary path which a non-urgent expropriation does. Clause 20(3) exempts an expropriating authority from complying with clauses 5(1), 6(1) and 7(1) when expropriating urgently.

Clause 5 deals with the investigation stage on the suitability of the property for the intended purpose;

Clause 6 deals with the engagements between the expropriating authority and municipality;

Clause 7 deals with the notice of intention to expropriate and the expropriating authority’s invitation to owners or holders to make representations about the expropriation or the amount of compensation or both.

The current formulation of clause 20 simply requires an expropriating authority to take the property if it deems the property to be necessary for a public purpose or in the public interest. It does not require a prior investigation nor a prior engagement with the municipality or prior engagements with the owner or holder.

The Bill attempted to balance this out by requiring an expropriating authority to get a court order to expropriate urgently where there are exceptional circumstances or where there is a real and imminent danger to life or damage to property or other ground.

After this clause was formulated, an insertion was made in the form of paragraph (a). The insertion was to account for an urgent expropriation where a state of disaster had been declared under the Disaster Management Act. That clause does not require a prior court order to expropriate urgently. This has created a disjunction on the face of it between paragraph (a) and paragraph (b) and that is the problem which the Committee needs to fix.

The DPWI legal team had engaged with the Parliamentary Legal Adviser and the State Law Advisor. They had a further round of internal consultations and those consultations lasted up to this morning. The Department was concerned that requiring a court to give its blessing to an intended expropriation where a state of disaster has been declared or even to have court review after the expropriation has occurred under a state of disaster might be over-judicialising the process.

DPWI was also concerned that exempting an expropriating authority from the duty to conduct a proper investigation as to the suitability of the property and to take on board representations from the owner or holder who would be affected by an expropriation might compromise the non-arbitrariness requirement for every deprivation of property in terms of clause 25(1) of the Constitution. Every deprivation of property under the Constitution must be non-arbitrary to pass constitutional muster which means there needs to be procedural protections and substantive protections.

If the views of affected persons are not to be taken into account at all for an urgent expropriation, the Department questions whether those expropriations will pass the non-arbitrariness test. So instead of exempting the expropriating authority from the requirements of clauses 5(1), 6(1) and 7(1) and inserting the court as a mediator, DPWI's proposal is to require the expropriating authority to comply with the investigation and consultation requirements in clauses 5 to 7 and to do so on a truncated timetable so that the benefits of consultation are not foregone altogether.

The proposal is to reframe clause 20(3) to state “the minister must make regulations to shorten the time frames contemplated in clauses 5 to 7 to account for urgent expropriation”. That formulation would mean that an expropriating authority still must do its homework to determine the suitability of the property or the intended purpose, to engage with the municipality on outstanding rates and zoning requirements and so on and importantly to give prior notification of the intended expropriation to an owner or holder who stands to lose their property and to elicit comments from them before actually taking the property. But to do so in a more streamlined, truncated way.

The Department thinks this would guarantee that the deprivation would be substantively and procedurally non-arbitrary. It would also mean that the Committee would not need to bring into the frame a court when dealing with an urgent expropriation under a state of disaster. The Bill currently provides for a court order in circumstances where properties are needed urgently under exceptional circumstances, when there is a real and imminent danger to human life or potential disruption or destruction to property, but those circumstances are outside the context of a state of disaster.

Further, the Committee will also be aware that if an expropriating authority has taken property for temporary use and wants to extend the duration of temporary use beyond 12 months, it needs a court order for that purpose. That is the importance of clauses 27 and 28. The Department’s view is that court oversight might not be necessary for that purpose if the expropriating authority is required to comply with clauses 5 to 7 albeit on a truncated time frame. However, removing court oversight at this point in the Bill's history might entail another round of public consultation which the Committee might not want.

Therefore, DPWI’s core proposal is that clause 20(3) be amended to dispense with the exemption provision and to replace it with one requiring the minister to make regulations simply to truncate the time periods for investigation and consultation under clauses 5 to 7. The Committee needs to reconsider if a court needs to grant an order before an expropriation can take place in urgent circumstances where a state of disaster has not been declared for the purposes of s22(b), and for potential extensions under clauses 27 and 28.

Discussion
The Chairperson asked if the exemption would be in line with the Constitution given that South Africa is a constitutional democracy and that courts have the discretion to review decisions made by the executive. Further, any action taken by the expropriating authority must comply with Clauses 1 and 2 of the Constitution.

Adv Naidoo explained that the courts have the inherent discretion to review the decision of any administrative power, including administrative decisions. Clause 20(2)(b) requires a court to make a decision even before the administrator to expropriate property in order for the administrator to expropriate property. That is a very different sequencing of events from admitting an administrative authority to take a decision and to allow someone to challenge the administrative decision on judicial review. That is what the Bill provides for outside the context of a state of disaster. Whether the Committee wants to change that, would be up to the Committee to decide.

He noted the Chairperson’s concern that it might not be necessary to do away with the exemption because an administrator would in any event need to comply with the values of the Constitution and the rule of law. Although it is true, it is the function of the legislature to provide an appropriate level of guidance to an administrator so that the administrator has legislated variables that guides how it exercises its discretionary power to expropriate. At the moment in the context of a disaster, clause 22(a) provides no variables at all, it simply says if the property is required under a national state of disaster, the expropriating authority may take actions to expropriate. Under such circumstances, the expropriation might be rendered arbitrary and therefore invalid. That is something that the Bill should avoid by providing appropriate guidance.

Adv Naidoo believed that the appropriate guidance already exists in clauses 5 to 7 and therefore there is no need to exempt an expropriating authority when a state of disaster has been declared at an urgent circumstance. DPWI does think that in order for expropriations to occur urgently where there is a need, it would be difficult for Parliament to say exactly how they should be truncated in all circumstances because there are degrees of urgency. It is best left up to the minister to determine the regulations. Hence, Adv Naidoo suggested that the Bill should give the minister that option to determine an urgent expropriation that would comply with the rule of the law.

Adv Naidoo stated that DPWI has not had time to consult with the State Law Advisor or the Parliamentary Legal Adviser on the substance of this proposal. Hence, it requested an opportunity to do so for the Parliamentary Legal Advisor and State Law Advisor to craft appropriate language for the Committee to consider.

The Chairperson agreed with Adv Naidoo’s suggestion.

Mr Shaun van Breda, State Law Advisor, had no objection to the proposal but as Adv Naidoo had indicated, all stakeholders do probably need to consult a little bit more on the proposals because this proposed amendment is brand new and had only been presented this morning. Besides that, he did not have anything to add.

The Secretariat advised the Committee that given the circumstances, the Select Committee could not adopt the C-List today.

Way Forward on Expropriation Bill
Mr M Dangor (ANC, Gauteng) agreed with the request that the Committee needed to provide space so that the laws adopted by this Committee are in line with the Constitution.

Mr M Rayi (ANC, Eastern Cape) asked how long this process could take. Would the suggestion of a week be sufficient and then the Committee could apply for a special committee meeting to consider the final mandates?

Ms Ngema said that suggestion could work as the process would only take one day.

Mr T Brauteseth (DA, KZN) commended the Committee on being diligent in ensuring all ducks are in a row. He was uncertain if having a special meeting would be useful to the Committee since he had just been advised that the KZN provincial legislature would not be open next week.

The Chairperson asked if the Select Committee could convene a meeting from 8 to 9am on Friday morning to adopt the C-List.

Mr J Londt (DA, Western Cape) said that it is unfair and unreasonable that the Committee should schedule a meeting and give Members notice only a day or two in advance. His diary is full. The Committee must take cognisance of the many other responsibilities that Members have to juggle.

Mr Brauteseth said that tomorrow morning would not be a good time for Mr Rayi as he would be in a joint standing committee meeting on Parliament's financial management. He would also not be available tomorrow morning as he had to fly to KZN.

Ms S Boshoff (DA, Mpumalanga) reiterated Mr Londt’s point and said that she would not be available on Thursday nor in the coming weeks. She highlighted that it would be unfair if this crucial process did not include the DA.

Mr Rayi noted those comments and suggested that the Select Committee should defer the adoption of final mandates to the first week of February since provincial legislatures may not do anything on the C-List from next week onwards.

Mr Dangor supported Mr Rayi’s suggestion.

The Committee agreed that the adoption of the final mandates should be deferred to the first week of February when Parliament reconvened next year.

Economic Regulation of Transport Bill [B1B-2020]: Final Mandates
Provinces voted on the final mandates of the Economic Regulation of Transport Bill.

Eastern Cape
The province voted to support the Economic Regulation of Transport Bill.

Free State
The province voted to support the Economic Regulation of Transport Bill.

Gauteng
The province voted to support the Economic Regulation of Transport Bill.

KwaZulu-Natal
The province voted to support the Economic Regulation of Transport Bill.

Limpopo
The province voted to support the Economic Regulation of Transport Bill.

Mpumalanga
The province voted to support the Economic Regulation of Transport Bill.

Northern Cape
The province voted to support the Economic Regulation of Transport Bill.

North West
The province voted to support the Economic Regulation of Transport Bill.

Western Cape
The province voted not to support the Economic Regulation of Transport Bill.

The Economic Regulation of Transport Bill was adopted.

Committee Report on ERT Bill
Ms Mshodi, Mr Rayi, Ms Mamaregane, Mr Dangor, Mr Landsman and the Chairperson supported the adoption of the report.

Mr Brauteseth, Mr Londt and Ms Boshoff abstained.

The Committee Report and Bill would be recommended to the House.

Committee minutes dated 22, 24 and 29 November 2023 were adopted.

The Chairperson adjourned the meeting.