Anthea Jeffery
South Africa's 1 million white and 8 million black homeowners, and the roughly 17 million black people with informal rights to plots held in customary tenure, will be vulnerable to expropriation by cash-strapped municipalities and umpteen other state entities under the government's new Expropriation Bill of 2019.
The bill, which is essentially the same as its 2015 predecessor, was tabled for public comment late in December, and is intended to supplement the expropriation without compensation amendment soon to be made to the Constitution. The draft law sets out some of the circumstances in which "nil" compensation will be paid. It also deals with the procedures to be followed in carrying out all expropriations, whether for nil compensation or more.
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According to the bill, "it may be just and equitable for nil compensation to be paid" for expropriated land which:
• is used by a labour tenant;
• has been "abandoned" by its owner;
• is held "for purely speculative purposes";
• is worth less than the state subsidies from which it has benefitted; or
• is owned by a state-owned entity which consents to the expropriation.
This list, with its five examples, is intended to reassure South Africans that expropriation without compensation will be sparingly used and justifiably applied. However, the circumstances in which expropriation without compensation may be deployed are expressly "not limited" to those set out in the bill. They may thus extend far beyond this short list.
The bill also empowers municipalities – along with a host of other state entities – to expropriate land or other property by following a set of specified procedures. These are heavily skewed against the owner and in favour of the government. A municipality which wants to expropriate residential or other land – say, to reduce spatial apartheid and build RDP houses – must begin by investigating the property and negotiating for its purchase with the owner. If no agreement is reached, the municipality may issue a notice of its intention to expropriate.
In this document, it must invite representations on the proposed expropriation and the compensation offered. The municipality is obliged to consider any representations received, but it need not respond to them or give reasons for rejecting them. Once it has taken these simple preliminary steps, the municipality may issue a notice of expropriation.
Under this notice, both ownership and the right to possess the property will automatically pass to it on the dates set out in the notice. The date for the transfer of ownership could be a mere week after the service of the notice (the only time limit in the bill is that this date "must not be earlier than the date of service" of the notice). The right to possess the property could pass to the municipality within another week.
The owner may seek mediation or apply directly to the courts to challenge the validity of the expropriation (whether it is really "in the public interest") and the amount of compensation offered (if this is truly "just and equitable"). In cases falling outside the "nil" compensation categories earlier described, this compensation is likely to be set – under a valuation formula now governing all property needed for "land reform" – at half of market value and sometimes at zero. However, most people will lack the means for such legal challenges and will find them particularly difficult to mount if they have already lost ownership and possession of their homes or other key assets.
Owners will also be able to seek relief in the courts if the compensation remains unpaid for months (or years) after ownership and possession have passed to the municipality. They will also be able to raise administrative justice objections if the time between the service of the expropriation notice and the passing of ownership and possession is unreasonably short. In practice, however, most people will again lack the means for such litigation.
Fewer rights than criminals
Under the bill, law-abiding home owners will have fewer rights than criminals illegally using a warehouse they own to store heroin and other drugs. Though the warehouse may be seized by the state, this can be done only after its use for criminal purposes has been proved and a court order for its confiscation has been obtained. But a home can be expropriated by a municipality by following the simple steps set out above – and without ever having to prove to a court that the expropriation is really in the public interest or that the compensation is truly just and equitable.
Perversely, the bill acknowledges the need for a prior court order before a municipality can enter a property it wants to investigate with a view to subsequently expropriating it. It also says that a temporary expropriation cannot be extended without a prior court order. But when it comes to the far more serious matter of a permanent expropriation, the bill denies that a prior court order is required. Allowing organs of state to expropriate property in this way is clearly unconstitutional.
By excluding the need for a prior court order confirming the constitutionality of a proposed permanent expropriation, the bill contradicts:
• Section 25 of the Constitution, which lays down the criteria expropriations must fulfil;
• Section 34, which gives everyone a right of access to court; and
• Section 33, which guarantees the right to administrative justice.
Where the property expropriated includes a person's home, the bill also contradicts Section 26 of the Constitution, which requires a prior court order before eviction can occur. The bill has enormous ramifications for millions of people who own houses, and the millions more with informal rights to plots held in customary tenure. All these individuals will be vulnerable to expropriation by cash-strapped municipalities and a host of other state entities. Most will be unable to resist these takings, irrespective of whether they are constitutional or not.
Often, moreover, even the limited procedural safeguards set out in the bill may not be fulfilled in practice. In the Stanger area of KwaZulu-Natal, for instance, Bhekie Dlamini is currently fighting for the return of the 31 350 hectares of land the KwaDukuza Local Municipality expropriated from him without his knowledge.
In Mpumalanga, the owner of the Akkerland Boerdery, which is under competing claims from different communities, was given seven days (most of them over the 2018 Easter weekend) to "hand over the farm's keys to the state".
Both these expropriations are being contested in the courts with the help of civil society organisations (CSOs). However, the more expropriations accelerate under the bill, the harder it will be for CSOs to help all affected owners to resist unlawful takings.
Public works minister Thulas Nxesi and his deputy, Jeremy Cronin – both senior leaders in the SACP – claim that the bill is "a very good piece of legislation". In fact, it is a draconian measure that can be used to strip millions of South Africans of their homes and other assets without the prior court orders, fair procedures, or equitable compensation which the Constitution requires.
- Dr Anthea Jeffery is head of policy research at the Institute of Race Relations (IRR), a think tank promoting political and economic freedom. Readers are invited to take a stand with the IRR by SMSing their names to 32823 (SMSes cost R1, Ts and Cs apply).
