Expropriation bill hearing in Makhanda

Public hearings on the Expropriation Bill are scheduled in the Eastern Cape for July 11-14, 2023. The Makhanda hearing is set down for July 14 from 10am to 1pm in the Makhanda Town Hall.

The purpose of the Expropriation Bill [B23B-2020] is to clearly outline how expropriation can be done and on what basis. The Presidential Advisory Panel Report determined that the 1975 Expropriation Act was inconsistent with the Constitution, and that it “undermines the constitutionally enshrined principles of lawful, procedurally fair and reasonable administrative justice”.

The Bill was rejected in 2021 and reprised in 2022, starting with Parliament’s Portfolio Committee on Public Works and Infrastructure. That committee’s task was to consider all public inputs on the amendments of the Act for the National Assembly to pass the Bill.

The National Assembly passed the bill in September 2022. From there, the bill was passed on to the National Council of Provinces, which has reopened the proposed laws for public comment.

It is this process which is taking place in the Eastern Cape from 11-14 July 2023.

After this, the bill will be sent to the President for assent and signing into an Act (i.e. it will become law).

The introduction of the Expropriation Bill should not be confused with the amendment of section 25 of the Constitution. The amendment of section 25 of the Constitution seeks to allow expropriation without compensation whereas the Expropriation Bill seeks to outline how expropriation must be done i.e. guide the processes and procedures for expropriation of property by organs of state.

The Bill is a review of the Expropriation Act 63 of 1975 emanating from a Cabinet approval of 15 September 2004.

Parliament says that local, provincial and national authorities will use this legislation to expropriate land in the public interest for varied reasons that seek to amongst others, promote inclusivity and access to natural resources. It says the Bill will assist all organs of State, including the local municipalities who provide services to vulnerable groups including women, children, youth, LGBTQI+ and people with disabilities.

Who may expropriate?

Expropriation can be done by an expropriating authority as stipulated in Chapter 1 of the Bill i.e. “an organ of state or a person empowered by this Act or any other legislation to acquire property through expropriation”. For example, state departments in the three spheres of government (national, provincial and local). Courts also have the authority to rule over matters involving expropriation. Ministers may expropriate property for a public purpose or in the public interest (Chapter 2 of the Bill). The powers of expropriating authorities are stipulated in the Bill as well as certain limitations to expropriation.

What may be expropriated?
                                                                                                     
According to the Constitution of South Africa Section 25 (4)(b), “property is not limited to land” thus any property including movable property and immovable property may be expropriated.

Why may expropriation be done?

Expropriation can be done for two purposes:

  • a public purpose
  • in the public interest.

Public purpose

Public purpose can be defined as “any purposes connected with the administration of the provisions of any law by any organ of state”. An expropriating authority may only expropriate for a valid reason or purpose e.g. land expropriated for building a school or hospital.

Public interest 

In terms of section 25(4)(a) of the Constitution “public interest includes the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”. Section 25 (8) further states that the state may take “legislative steps and other measures … in order to redress the results of past racial discrimination…

Expropriation and land reform should be done in accordance with these two clauses.
In the event of disputes, courts will determine compensation for expropriation.

What does urgent expropriation mean?

Chapter 7 of the Bill focuses on urgent expropriation. This section states, “An expropriating authority may, if a property is required on an urgent basis, exercise a right to use property temporarily for so long as it is urgently required for a period not exceeding 12 months”.

Urgent expropriation cannot be done if the property:

  • belonging to national, provincial or local government is available;
  • is needed in terms of the Disaster Management Act; or
  • is protected by a court order.

 

Concerns and objections

The DA, EFF and Freedom Front Plus (click on each for their statements) opposed the Bill for various reasons. The DA argued that the law should apply only to state owned land and not private land; the EFF said the bill didn’t go far enough and that all land should be nationalised.

Civil society groups and some parties say private land ownership is threatened by the bill and that investor confidence will plummet should it be passed into law. Some warn that it could spark land grabs, and the state could seize property.

During a debate on the Expropriation Bill in a Parliamentary Session on September 28, 2022, Minister of Public Works Patricia de Lille said, ”It envisions restitution of land to victims of dispossession but does not permit arbitrary deprivation of property. It permits expropriation and redistribution of land for public good provided that it is against just and equitable compensation.

“The Expropriation Bill brings certainty to South Africans and investors because it clearly outlines how expropriation can be done and on what basis. It is extremely dangerous to suggest that government will arbitrarily take people’s property such as their homes.”

Here is the bill

Here is an article from The Conversation about the bill

Sources:
https://www.parliament.gov.za/project-event-details/1670

https://pmg.org.za/committee-meeting/36656/