The new expropriation bill, which was gazetted on 9 October, aims to replace the Expropriation Act, 1975 (Act 63 of 1975). The new bill provides for the expropriation of land without compensation because the previous legislation was considered unconstitutional.

The Inter-Ministerial Committee (IMC) on Land Reform announced on Sunday that a new land expropriation bill had been submitted to Parliament. This new expropriation bill is set to replace the current Act 63 of 1975, which was deemed inconsistent with the Constitution that was promulgated 21 years later.

Act 63 of 1975 sets out the rules by which the government can lay claim to land ‘in the public interest’ and ‘for public purpose’.

Provisions of the new expropriation bill

Speaking at a media briefing on Sunday, minister of public works and infrastructure, Patricia de Lille said the bill, if passed into law, will ensure that any act of expropriation complies with the Constitution.

“The chief state law advisor has now certified the bill as constitutional. This paves the way for the next step in the process whereby it has been gazetted on 9 October 2020 and submitted to Parliament,” said De Lille.

The minister of agriculture, land reform and rural development, Thoko Didiza, said the bill dealt with a key point of contention – fair compensation.

According to the IMC, the new bill provides for expropriation without compensation. It features a new clause – 12(3), (4) – dealing with instances where it may be just and equitable to pay no compensation for the expropriation of property in the public interest.

“However, the bill does not prescribe that nil compensation will be paid in these circumstances. The bill provides that the courts will determine the amount of compensation,” said De Lille.

The new clause in the expropriation bill

The new clause states:

“12 (3) It may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances, including but not limited to:

(a) Where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income but to benefit from appreciation of its market value.

(b) Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration.

(c) Notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act 47 of 1937), where an owner has abandoned the land by failing to exercise control over it.

(d) Where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land.

(e) When the nature or condition of the property poses a health, safety or physical risk to persons or other property.

(4) When a court or arbitrator determines the amount of compensation in terms of Section 23 of the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996), it may be just and equitable for nil compensation to be paid, having regarded all relevant circumstances.”

Ad hoc parliamentary committee

De Lille also referred to the 2019 report by the Presidential Advisory Panel on Land Reform and Agriculture. The report pointed out that Act 63 of 1975 was “inconsistent with the Constitution” and “the correction of this has been long delayed”.

The ad hoc parliamentary committee responsible for amending Section 25 of the Constitution to allow for land expropriation without compensation was re-established in late June this year. The committee met on 8 October for the first time since its re-establishment to discuss its programme for public hearings, which are due to start this month.

“We must emphasise that the drafting of the expropriation bill was separate from the work of Parliament in reviewing Section 25 of the Constitution. The bill has been drafted to be consistent with Section 25 of the Constitution as it currently stands. The chief state law advisor has certified that it is consistent,” said De Lille.

Section 25 of the Constitution deals with property rights. The Presidential Advisory Panel recognised that the current framing of Section 25 of the Constitution was “compensation centric”.

For example, Section 25(2) reads:

“Property may be expropriated only in terms of law of general application:

(a) For a public purpose or in the public interest.

(b) Subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”

Cornerstones of the new expropriation bill

“One of the cornerstones of the proposed legislation is that the holders of unregistered rights in the property must be treated on an equal and procedurally fair basis in the expropriation of such property,” said De Lille.

Deputy President David Mabuza is the chairperson of the IMC, which comprises the departments of Agriculture, Land Reform and Rural Development, Public Works and Infrastructure, and Justice and Correctional Services. – Daily Maverick