LAND EXPROPRIATION @KASIBCNEWS

LAND EXPROPRIATION @KASIBCNEWS

The Economic Freedom Fighters (EFF) notes the decision by President Cyril Ramaphosa today to assent to the Expropriation Bill, thereby passing it into law. The EFF opposed the Expropriation Bill in Parliament, citing that it provides no radical departure from the past, and that it merely aligns the country’s expropriation laws with the 1996 Constitution. 

Previously, expropriation was governed in terms of the Expropriation Act of 1976. Primarily, we opposed the Act because it provides a legislative mechanism for the implementation of Section 25 subsections 2 and 3 of the Constitution, which provide that property (land) may be expropriated in terms of a law of general application for a public purpose or in the public interest. 

More importantly, Section 25 (2)(b) of the Constitution provides that expropriation can only be done subject to compensation, the amount of which must be decided by the parties concerned or by courts. Section 25 (3) of the Constitution sets out factors which must be taken into consideration when calculating compensation for expropriation. 

Those who conceptualised the Expropriation Act are of the view that the factors listed in Section 25(3) of the Constitution can be creatively interpreted to mean that in some instances, compensation for expropriation could be nil. This is a very wild hypothesis, rooted in some utopian understanding of the Constitution. 

In at least one instance where this judicial adventurism was attempted by the Land Claims Court in the matter of Uys & another v Msiza & others (1222/2016) [2017] ZASCA, in terms of which the Land Claim Court reduced an amount that was to be payable to the owner from R1.8 million to R1.5 million, the Supreme Court of Appeals (SCA) upheld an appeal against that judgement.

 The SCA relied heavily on the provisions of Section 25(3) of the Constitution, and found that there was no justifiable reasons for the decision taken by the Land Claims Court. 

The Constitutional framework remains the same, expropriation in South Africa is compensation-centric, and this is rooted in the Constitution. The new Expropriation Act seeks to legislate the legal absurdity that was rejected by the Supreme Court of Appeals.

 It provides that there are instances in which compensation for expropriated property could be calculated to nil, which in their view equals expropriation without compensation. 

 The Act then provides a closed list of instances in which compensation for expropriation could be calculated to mean nil compensation. These instances include cases where land is held for speculation purposes, abandoned land, land that poses health hazards, and so forth. Even if it were true that these categories of land could be expropriated at nil compensation, this would not change the structure and nature of landholding in South Africa, because it would basically mean that only land that is of little value could be expropriated without compensation. 

Those who own the categories of land listed in the Act as subject to nil compensation still enjoy constitutional protections as outlined in Section 25 of the Constitution, and they would be able to challenge this sort of expropriation in court, and win. The Expropriation Act is, therefore, a legislative cop-out by the African National Congress (ANC), and only used to fool our people into believing that the party is doing something to address the almost tyrannical neglect of the land question in this country. 

It will not assist in resolving the tragedy of land restitution in this country, which has hollowed out State coffers for compensation to white settlers who illegitimately own our land. The only democratic mechanism through which the land question can be resolved is in amending the entirety of Section 25 of the Constitution. 

This must include provisions for State custodianship of the land, a mere Act of Parliament cannot override the constitution. 

We, therefore reject this Act, and we will soon table a new set of legislative proposals in Parliament to resolve the land crisis in this country.