Expropriation Bill: NCOP amendments

Meeting report

The Chairperson explained that the Committee would address the Expropriation Bill which had been under consideration by the Portfolio Committee between November 2020 to September 2022. During this period, there were opportunities for public engagement, including online hearings across the provinces. The Bill was ultimately deliberated on and the National Assembly adopted the Bill in September 2022. Subsequently, it was forwarded to the National Council of Provinces (NCOP). After being reviewed by the NCOP, it has now been referred back to the Portfolio Committee to examine the NCOP proposed amendments to the Bill.

The Chairperson spoke to the significance of the Bill, which seeks to repeal the Expropriation Act of 1975, enacted during the apartheid era. This Act, outdated and incongruent with the Constitution, is being replaced to ensure alignment with constitutional principles on expropriation for public purposes. The Committee would hear from various experts. The Content Advisor would provide an overview of the parliamentary procedures followed thus far and the legitimacy of the current meeting. Following that, the Chairperson of the Select Committee from the NCOP would present insights from that Committee's deliberations. Subsequently, the Committee would receive a detailed analysis of the proposed amendments from Parliamentary Legal Services. She added that the focus would be specifically on these amendments rather than a comprehensive review of the entire Bill.

Mr Shuaib Denyssen, Committee Content Advisor, explained the Bill was a Section 76 bill which affected the provinces. The Committee's responsibility was to meticulously review the subsequent amendments by the NCOP which was referred to as the C version or C List, is now under consideration. The Committee's role at this stage is not to propose further amendments but to scrutinise and recommend the NCOP amendments, as stipulated in National Assembly Rule 311.

Rule 311(2) states the Committee's obligation to consult with the relevant NCOP Committee or chairperson before making recommendations. He underscored the prohibition against proposing additional amendments to the Bill at this stage. The Committee may consult the Joint Tagging Mechanism to ensure compliance with constitutional and procedural requirements.

Rule 312 dictates the content and presentation of its recommendations in its Committee Report to the National Assembly and that it is important to attach the amended Bill to the report.

Mr Denyssen concluded by affirming the Committee's commitment to following the prescribed procedures and deferring to legal advisors for guidance on any potential non-compliance issues.

He acknowledged the role of the Parliamentary Legal Adviser in reviewing the amendments for constitutional and procedural compliance.

The Chairperson thanked Mr Denyssen and acknowledged the presence of the Select Committee Content Advisor, Dr Anneke Clark. In accordance with parliamentary rules, he invited the Select Committee Chairperson to address the Committee, stipulating a time limit of 10 minutes.

Mr M Mmoiemang (ANC, Northern Cape), Chairperson of the Select Committee on Transport, Public Service and Administration, Public Works and Infrastructure, provide an overview of the Select Committee legislative process on the Bill. It had received both oral and written submissions on the Bill, followed by the Department's response to these submissions on 25 October 2023. He emphasised the importance of the negotiating mandates from the nine provinces, which led to the C List containing the agreed-upon amendments.

He outlined the final mandates of the nine provinces, noting that the majority, including the Eastern Cape, Free State, Gauteng, and Northern Cape, voted in support. Conversely, the North West did not submit a final mandate, while the Western Cape instructed its delegate not to support the Bill.
On 13 March 2024 the Select Committee adopted its Committee Report on the Bill.

Mr Mmoiemang explained each amendment, including provisions for customary law and traditions, adjustments to the time and manner of payment, and allowances for the expropriating authority to act swiftly in urgent cases.

Mr Mmoiemang pointed to the removal of Clause 23(e) from the Bill. The negotiating mandates, noted that existing legislation and bylaws already addressed property-related health risks. Therefore, the Committee decided to remove Clause 23(e) as provisions for abandoned buildings were adequately covered in section 12(3)(c) and section 22(a) covered urgent expropriation during disasters.

The Chairperson appreciated the valuable input by Mr Mmoiemang which would aid the Committee's deliberations on the proposed amendments.

Committee’s Deliberations on Amendments to the Expropriation Bill
Ms Phumelele Ngema, Parliamentary Legal Advisor, clarified that the focus of her presentation would be on providing information and clarity on the Bill version approved by the National Council of Provinces (NCOP).

Ms Ngema noted her collaboration with Adv van Breda from the Office of the Chief State Law Advisor throughout the process, including at the NCOP. She summarised the key points raised by the Select Committee Chairperson. She assured the Committee that the amendments were constitutionally compliant and legally sound, especially urgent expropriation in Clause 20.

Adv Shaun van Breda, Senior State Law Adviser, provide a detailed explanation of the amendments made by the Select Committee, resulting in the D version of the Bill.

Clause 1
Adv van Breda said that on page five, in line 21, the words "at common law" were to be replaced with "in terms of the common law and customary law." This change aimed to address concerns raised by various provinces on the rights pertaining to communal land.

He asked the Chairperson whether to proceed discussing each clause sequentially or if there were specific clauses she wished to discuss first.

The Chairperson suggested beginning with Clause 1 and proceeding sequentially to Clause 30 to reach a consensus on each.

Ms L Mjobo (ANC) agreed that they should go through the Bill clause by clause.

The Chairperson sought agreement from Members on this amendment. She asked for a show of hands or any other indication from the Members to indicate their agreement or disagreement.

Mr P Van Staden (FF+) expressed rejection of the proposed amendment.

Mr T Mashele (ANC) proposed agreement with the amendment.

The Chairperson acknowledged Mr Mashele's proposal. She suggested that instead of raising hands, representatives from each party should speak on behalf of their party's stance. She reminded them that only permanent Committee members have voting rights, implying that Mr Van Staden, as a non-permanent member, does not possess voting rights. She asked Mr Mashele to specify if the ANC supported the agreement to the clause.

The ANC agreed to Clause 1. The DA rejected the clause.

Mr W Thring (ACDP) said that the proposed amendment was a matter of semantics, as it involved substituting terms rather than making substantive changes. He clarified that the ACDP's overall position on the Bill was clear, but on this specific amendment, it would not take a stance.

The Chairperson noted the absence of the IFP representative. The ANC decision would be proceeded with.

Clause 2
Adv van Breda noted a new subsection 3 on page six, aimed at ensuring that property acquired by third parties through an expropriating authority falls within the scope of the Act. This provision also ensures that owners or holders of expropriated property are entitled to compensation as stipulated in the Act and in accordance with the Constitution.

Additionally, there was substitution of subsection 3 for subsection 4 in line 18 on page six, which was necessitated by the insertion of a new subsection 3. There was an omission of subsection 4 and its substitution with a new subsection, as well as the insertion of a reference to section 20 in line 24 on page six. These proposed amendments aim to address concerns raised by provinces on the distinction between expropriation for temporary use and urgent expropriation, ensuring clarity of the Bill's language.

Adv van Breda clarified that these amendments were proposed to streamline the provisions on expropriation, particularly on temporary use and urgent expropriation.

The ANC supported, ACDP rejected, DA rejected, EFF rejected the amendments. In terms of numbers, Clause 2 was agreed to.

An ANC Member said she was in a noisy environment and would submit her vote via WhatsApp.

Clause 3
Adv van Breda explained that the proposed amendments were simply grammatical changes. Page Six, in line 36, the word "and" would be replaced with a comma after the word "accommodation." Additionally, in line 50, after the words "any law," the word "ends" would be inserted.

Mr Thring stated that the ACDP would not vote against grammatical changes.

The DA rejected the amendments.

The ANC supported the amendments.

Clause 5
In line 10 on page seven, the word "factors" to be replaced with "circumstances" to align the wording with Section 25(3) of the Constitution.

The ANC supported the amendment, while the DA, EFF and ACDP rejected the amendment.

The Chairperson noted there were more Members in support of the Bill than those voting against it.

Clause 7
Adv van Breda presented proposed amendments to Clause 7:
- Omitting the phrase "and where the expropriation is for temporary use of the property in the future. The intended period of such temporary use" from line 16 on Page 9. This change aligns with the Department's clarification that the reference to temporary use in Clause 7 is inappropriate as it pertains to permanent expropriation.
- Omitting the word "and" from line 40 and substituting the full stop with a semicolon followed by the word "end" from line 41 on Page 9.
- Adding a new paragraph to clarify the details of the empowering law authorizing the intended expropriation. This amendment aims to provide clarity on the empowering law relied upon by expropriating authorities.
- Insert "in terms of section 19" after "disputing"; omit "under section 19" from line 58 on Page 9.
- Omitting "amount of compensation has" and substituting with "compensation, the amount of which and the time and manner of payment of which have" on Page 3, line 17. This adjustment aligns the clause with Section 25(2)(b) of the Constitution.

The Chairperson requested Members' positions on these proposed amendments.

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

The Chairperson said the numbers supporting this clause were greater than those objecting.

Clause 8
Adv van Breda presented proposed amendments to Clause 8:
- Omitting the word "future" from line 2 and substituting the words "as contemplated in section 20" from line 3 on page 11. This amendment aims to restrict the temporary use of property to urgent expropriation as outlined in Clause 20, thereby eliminating potential confusion.
- Omitting the word "and" from line 6 on page 11.
- Substituting the full stop with a semicolon followed by the word "end" from line 8 on page 11.
- Adding a new paragraph detailing the empowering law authorizing the expropriation, aligning with previous discussions for clarity on the legal basis of expropriation.

These amendments seek to provide clarity and address concerns raised by provinces on potential confusion between temporary use and urgent expropriation. They aim to streamline the provisions on expropriation and ensure consistency throughout the Bill.

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

The Chairperson noted that due to the ANC's advantage of more numbers, the proposed amendment would be accepted.

Clause 9
Adv van Breda proposed amendments to Clause 9 as follows:
- After the word "holder" in line 59 on page 11, insert the words "of a right." This amendment aims to clarify that the reference to "holder" actually pertains to the holder of a right as defined in the Bill.
- In line 10 on page 12, omit the words "any amount of depreciation" and substitute them with "the amount for the loss of value." This change was suggested by the Department to clarify that the loss of value is an actual concept, whereas depreciation is merely an accounting concept.

These amendments intend to enhance clarity and ensure accuracy in the language used.

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

The Chairperson reiterated that due to the majority of those in support, the clause is adopted.

Clause 10
Adv van Breda explained proposed amendments to Clause 10 as follows:
- Omitting subsection one in line 28 on page 12 and substituting it with the following subsection: "If after the date of expropriation, a person claims to have held an unregistered right in the expropriated property for which that person has not been compensated and was not served with a notice of expropriation, the expropriating authority must require that person to deliver to the expropriating authority, in the manner prescribed in the notice, within 30 days of receipt and notice within 30 days of receipt and subject to section 23—
(a) evidence of that person’s unregistered right in the expropriated property; or
(b) a copy of any written instrument evidencing or giving effect to that person’s unregistered right, if such instrument is in the person’s possession or under the person’s control, or any other evidence to substantiate the person’s claim."."

This amendment divides the sub clause into paragraphs (a) and (b) and clarifies that the 30-day period applies to both instances mentioned.

- After the word "request" in line 50 on page 12, insert "for assistance in the verification of the claim." This amendment provides clarity on the nature of the request being referred to.

These amendments aim to enhance clarity and ensure consistency in the language used.

ANC supported, DA objected, the ACDP objected.

Clause 12
Adv van Breda presented the proposed amendments to Clause 12 as follows:
- Omitting "and the interests of the expropriated owner or expropriated holder" from line 42 on page 13 and substituting with "the interests of those affected, including an owner, holder, overwrite, and mortgagee." This change aims to broaden the scope to include all affected parties, rather than specifically focusing on expropriated owners or holders.
- Omitting "expropriated owner or expropriated holder" from line 54 on page 13 and substituting it with "owner or holder of the right."
- Omitting "expropriated owner, expropriated holder" from line 4 on page 14 and substituting it with "owner or holder of the right."
- After "it" in line 24 on page 14, insert "despite being reasonably capable of doing so." This addition addresses concerns raised by certain provinces on instances where an owner may lose control of a property due to circumstances beyond their control.
- Substituting the semi-colon after "end" in line 27 on page 14 with a full stop.
- Omitting paragraph (e) from line 28 on page 14. This deletion addresses submissions made by certain provinces on health and safety risks posed by properties, suggesting that they do not warrant expropriation.

These amendments seek to address various concerns and improve the clarity of Clause 12.

The Chairperson acknowledged the objections raised by the DA and the ACDP on Clause 12.

Mr Thring expressed support for the removal of subsection (e), considering it a step in the right direction, although overall, the ACDP still objected to Clause 12.

The Chairperson stated that the ANC supported the clause. There was greater support than objection to Clause 12, signifying that the amendment would proceed.

Clause 13
Adv van Breda presented the proposed amendments to Clause 13 as follows:
- On page 14, in line 46, after "amount," insert "provided that if the expropriated owner who expropriated all override disputes the amount of compensation, it may issue a provisional tax invoice for the amount of compensation offered without prejudice to its rights to dispute the amount of compensation offered by the expropriating authority." This amendment aligns with proposed amendments from certain provinces to Clause 13(a) and aims to provide clarity on the issuance of provisional tax invoices in case of compensation disputes.
- On page 14, from line 48, omit "dispatched to the expropriated owner or the expropriated holder concern by prepares post will electronically transfer to his or her account" and substitute with "has been electronically transferred to the bank account of the expropriated owner, or of the expropriated holder of the right, or in a manner has agreed to by the parties, or as decided or approved by a court in terms of section 19." This amendment clarifies that payment of compensation will be made via electronic transfer into a bank account or any other agreed-upon manner, rather than via postal or email delivery. It also ensures flexibility by allowing for payment as decided or approved by a court.

These amendments aim to enhance clarity and practicality of processes related to compensation under Clause 13.

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

The Chairperson noted the support for Clause 13 and confirmed approval.

Clause 15
Adv van Breda presented the proposed amendments to Clause 15:
- Omitting "by no later than the date on which the right to possession passes to the expropriating authority in terms of section 9(2) or (4)" and substituting them with "on the date and in the manner as agreed to by the parties or as decided or approved by a court in terms of section 19." This amendment aligns the provision with section 25(2)(b) of the Constitution.
- Inserting a comma after "subsection 2" in line 20 on page 15.
- Inserting "after the expropriation, the authority has decided to expropriate and thus" after "arising" in line 20 on page 15.
These amendments aim to provide clarity.

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

Clause 19
Adv van Breda outlined the proposed amendments to Clause 19:
- On page 16, in line 55, inserting "time and manner of payment" after "amount" for clarity.
- On page 17, in line 4, inserting "time and manner of payment" after "amount" for clarity.
- On page 17, in line 25, omitting "any" and substituting it with "Despite Section 18 of the Superior Courts Act of 2013 (Act No 10 of 2013), any." This aims to clarify the provision.
An expropriated owner or holder may apply for an interdict to stop the expropriation if there are compelling prospects of success of an appeal. This amendment deviates from section 18, allowing the person to apply for an interdict under clause 19(8).

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

Clause 20
Adv van Breda outlined the proposed amendments to Clause 20 as follows:
- On page 17, in line 34, inserting "for a public purpose in the public interest" after "basis" and substituting "but for no longer than" for "for a period not exceeding" in line 35.
- After "exercised" in line 37, inserting "only" for clarity.
- After "available" in line 38, inserting "and" for coherence.
- On page 17, from line 50, replacing 20(3) with new provisions that allow the expropriating authority to depart from certain provisions of the Act in urgent expropriations, specifying reduced periods for certain actions.
- Omitting "determined" in line 57 and substituting it with "agreed or decided by a court" for alignment with constitutional provisions.
- Omitting "the" in line 58 and replacing with “if not already done.”
- On page 18, replacing 20(6) with provisions requiring the expropriating authority to repair or compensate for damage caused to property as a result of temporary use, upon written demand by the affected person.
- Inserting "the ownership of" before "property" in line 18 and replacing 20(10) with provisions making the expropriating authority liable for municipal property rates, taxes, levies, and similar charges from the date of expropriation, specifically in the case of land.
These amendments aim to enhance clarity, align provisions with constitutional requirements, and address concerns raised by certain provinces.

The ANC supported, the DA rejected, the EFF rejected, and the ACDP rejected.

Clause 22
Adv van Breda presented the proposed amendments to Clause 22 as follows:
- On page 19, in line 10, inserting "and delivered electronically to the electronic mail address of the addressee" after "at 3C" to address concerns about unreliable postal services.
- On page 19, omitting (a) from line 15 and substituting it with new provisions on the identity of an owner or holder of rights, prompted by concerns that the legal language was not ideal.
- On page 19, from line 15, to omit subparagraph (ii) and to substitute the following:
"(ii) if the identity of an heir or legatee, whose interest has passed or will pass to another person on the fulfilment of a condition, is unknown to the expropriating authority; or".
- On page 19, in line 21, inserting "the" after "whenever," inserting "is required" after "publication of a notice," and inserting "all the" after "of two" for clarity.
- After "Act" in line 22, inserting "such" for coherence.
- Omitting "or" in line 58 for precision.
- Substituting the full stop in line 59 with a semi-colon and inserting new paragraphs (d) "electronic mail" and (e) "in any other manner which may be prescribed by the Minister" to specify delivery methods, aligning with amendments proposed by certain provinces.
These amendments aim to enhance clarity, specify delivery methods, and address concerns raised on legal language and the reliability of postal services.

ANC supported, DA objected, EFF objected, the ACDP objected.

Clause 24
Adv van Breda proposed an amendment to Clause 24, suggesting the insertion of the phrase "notice of" before "expropriation" for clarity.

The ANC supported the amendment, while the DA, EFF, and ACDP objected to it.

Clause 27
Adv van Breda proposed an amendment to Clause 27, suggesting replacing "and" with "interests all" for clarity.

The ANC supported the amendment, while the EFF, ACDP, and DA objected to it.

General Amendment
To substitute "expropriated holder" with "expropriated holder of a right" throughout the Bill for clarity.

The ANC supported the amendment, while the DA, EFF, and ACDP objected to it.

The Chairperson thanked everyone for their participation in the meeting and noted that the amendments were supported by the majority, despite some objections. The Bill with the amendments would be tabled in the National Assembly the following day and all parties would have a chance to speak on the Bill.

Mr I Seitlholo (DA) asked if there was a suggestion for acceptance of the entire Committee Report as presented as individual parties needed to express concerns or highlight points.

The Committee Secretariat explained the procedure stating that she would add to the report everything discussed in this meeting, including the Committee decisions. The Chairperson would call for the adoption of the report, and any objections would be noted. She had shared the draft report with the Committee the previous day and suggested reviewing it to determine if the Committee accepts or rejects it before it is tabled in the House.

Committee Report on the Bill
The Chairperson asked to share the report for adoption.

Mr Thring requested that the objection of the ACDP to the report be noted.

Mr Seitlholo requested that the objection to the report by the DA also be noted.

The Chairperson acknowledged the objections raised by the opposition parties, including the ACDP, DA, and EFF.

Despite the objections, Ms Mjobo moved for the adoption of the report seconded by Mr Mashele.

The Chairperson thanked all the Members for their participation in the Expropriation Bill, emphasising its importance in the transformation efforts of the ANC government in South Africa. She highlighted the outdated nature of the current Act from 1975, which was implemented during apartheid, and expressed the need for its reform. The report would be tabled in the National Assembly the following day, allowing all parties to make their declarations on it.

The minutes of the 20 March 2024 meeting were adopted.

The Chairperson informed Members that the last Portfolio Committee meeting for the Sixth Parliament would be held the following day. The Committee would discuss the Legacy Report and any outstanding matters. With that, she adjourned the meeting.