Expropriation Bill communists’ blow against property rights – Business Day, 18 May 2015

All three of the leading supporters of the Expropriation Bill — Radebe, Nxesi and Cronin — are leading members of the South African Communist Party. Getting this bill through Parliament will be one of their greatest coups yet.

MUCH of organised business and agriculture seem to have been too easily satisfied by the government’s redrafted Expropriation Bill.

Either that, or they have chosen to continue the appeasement that has characterised many of their dealings with the African National Congress (ANC) government since it came to power.

Deputy Public Works Minister Jeremy Cronin says the bill has been extensively discussed at the National Economic Development and Labour Council and that "all constituencies signed off on it".

Among those consulted were organised agriculture, commerce, industry, mining, finance, property and the legal fraternity. "In the main," he is reported to have said, "the comments were positive."

Like Brutus, Cronin is surely an honourable man who wouldn’t have said this if it weren’t true.

Moreover, apart from the Transvaal Agricultural Union, there has been little public objection to the bill from business.

Certainly, no one has contradicted Cronin’s claims that there are now "relatively few areas of disagreement".

Public Works Minister Thulas Nxesi says his bill has received support from all social partners.

This, he says, is a major milestone. So it is, for the bill is a major assault on property rights.

Cronin and Minister in the Presidency Jeff Radebe have made much of the fact that it provides for disputes over compensation to be decided by the courts.

What they fail to mention is that this is the only aspect of expropriation they envisage for adjudication by a court.

The bill traces its origins to the property rights clause (section 25) of the Constitution. It further claims to give effect to the constitutional requirement that administrative action must be "lawful, reasonable and procedurally fair" (section 33). But it omits any reference to section 34, in terms of which everyone has the right to go to court to have any dispute resolved there.

This is a strange omission from a piece of legislation whose explanatory memorandum claims to "ensure consistency with the spirit and provisions of the Constitution".

Even the right to seek compensation in the courts will for most people be unaffordable. The state is thus empowered to reject any amount sought by the property owner by way of compensation.

The owner can then litigate to seek a larger amount, but in the meantime the state is entitled to take ownership and possession of his property. To do this without the express prior authorisation of the courts is the sort of thing that dictatorships do, not democracies.

Even if the dispossessed property owner can afford to go to court to claim larger compensation, and wins first time around, the state, true to form, will appeal because it seldom accepts an adverse judgment without appealing higher and higher.

Very few individuals will have the resources to keep on fighting in the courts, least of all when they have lost ownership and possession of their property.

Expropriation is frequently seen as a means of expediting land reform, but the bill goes beyond what the Constitution permits.

The Constitution speaks of expropriation to bring about "equitable access" to "all SA’s natural resources", but the bill also authorises expropriation to "redress the results of past racial discriminatory laws or practices".

This is open ended.

Moreover, all organs of state are given these powers.

This amounts to giving carte blanche to corrupt and/or bankrupt municipalities and others to declare open season on urban and rural property all over the country.

All three of the leading supporters of the bill — Radebe, Nxesi and Cronin — are leading members of the South African Communist Party. Getting this bill through Parliament will be one of their greatest coups yet.

• Kane-Berman is a consultant at the South African Institute of Race Relations.

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