Anthea Jeffery
The three legal experts cited in the report 'Should you be afraid of the new Expropriation Bill? We ask 3 legal experts' (22 October) are wrong in saying the 2020 Expropriation Bill "gives clarity", "is an important check on state power", applies solely to land needed for public projects and is necessary for successful land reform.
One of the three experts, Professor Sue-Mari Viljoen of the University of the Western Cape, goes so far as to say that the bill's provisions for the preliminary stages of the expropriation process "incorporate a great deal of accountability, responsible governance, openness and honesty".
This is astonishingly naïve in relation to a government mired in corruption and other abuses of power. And which has failed to account for the Marikana and Life Esidimeni deaths, the Eskom debacle, major daily sewage spills into dams and rivers, collapsing rail and other infrastructure, spiralling crime – and the serial failure of almost all land reform projects over 26 years.
Municipalities
Even if a municipality (or other expropriating authority) which wants to expropriate land for a housing project acts "openly" and "honestly" in the preliminary phases – when it must try to negotiate a reasonable agreement with the owner and explain the basis for the compensation it proposes, among other things – this will do little to help the owner once the actual expropriation process begins.
Both Viljoen and Professor Elmien du Plessis of North-West University assume the bill will ensure "just administrative action" throughout. However, once the municipality has ticked the right boxes on the preliminary steps, it can proceed with the expropriation with little regard for either administrative fairness or the requirements for a valid expropriation in Section 25 of the Constitution.
The key problem is that the municipality may then expropriate the property by the simple expedient of serving a notice of expropriation on the owner. Under this notice, both ownership and the right to possess the property will automatically pass to the municipality on the dates specified in the notice – which could be very soon. A week, say, for the transfer of ownership, and a scant few days thereafter for the right to possess the property.
These short periods are possible because the only relevant time limit included in the bill is that ownership cannot pass before "the date of service" of the expropriation notice. Yet, just administrative action requires a reasonable period – at least 180 days – so people can look for alternative homes or business premises before their key assets are taken from them.
These provisions in the bill allow an expropriating authority to act as judge and jury in its own cause. A municipality's real objective may be to help replenish its depleted coffers, but it will nevertheless have the power to decide that the expropriation is "in the public interest" and that a paltry amount of compensation is "just and equitable".
An owner with sufficiently deep pockets will be able to seek a court order setting aside the expropriation or increasing the compensation to a more appropriate amount. But most owners will lack the means to go to court – and will find it particularly difficult to do so if they have already lost ownership and possession of their key assets.
To ensure compliance with the Constitution, the bill should require the municipality to prove the validity of a proposed expropriation before a notice of expropriation may be served. The bill should also stipulate that just and equitable compensation must be paid before the transfer of ownership takes place.
Municipalities (and other state entities) that routinely push BEE and other firms into bankruptcy by failing to pay their bills on time simply cannot be trusted to make payment only after they have already taken ownership.
Far from incorporating these essential safeguards, the bill makes it clear that both ownership and possession will indeed pass to the expropriating authority on the specified dates, irrespective of whether or not compensation has been decided or paid.
Provisions of this kind greatly increase the likelihood of abuse by venal and often corrupt municipalities and other organs of state. Du Plessis nevertheless claims "the bill is an important check on state power" and "people should welcome it".
Public projects
Like Viljoen and Ropafadzo Maphosa, a legal researcher at the University of Johannesburg, Du Plessis also pretends the bill will apply to land alone. She further claims that the only land likely to be expropriated is that required for "public projects", such as the building of roads and schools.
On this flawed basis, she asserts that the bill "should not really affect most South Africans, unless your land is needed for such a project". But the bill in fact defines the "property" subject to its provisions as "not limited to land". It also authorises expropriation both for "public purposes" – the building of roads – and "in the public interest".
The public interest includes the land reform rationale. And this rationale can, of course, extend from agricultural land to residential, commercial, mining and industrial land, along with any improvements on such land and perhaps also accompanying movables.
All three of the legal experts cited seem to think that expropriation, whether for nil or some higher quantum of compensation, is vital to "prioritise" land reform. But most South Africans have little interest in this issue: the ANC's own internal research identifies land reform as their 13th highest priority.
The High Level Panel of Parliament has also made it clear that persistent land reform failures have little to do with land acquisition costs. Said the panel's 2017 report: "Experts advise that the need to pay compensation has not been the most serious constraint on land reform in South Africa to date – other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity, have proved more serious stumbling blocks to land reform."
The government has refused to acknowledge this inconvenient truth. Instead, it simply brushes the report aside while continuing to assert that expropriation is vital to the success of land reform.
And legal experts who ought to know better acquiesce in the lie by putting out false platitudes about the bill and pretending that the expropriation process – unlike the state's performance elsewhere – will be a model of administrative justice and of "accountability,… openness and honesty".
Dr Anthea Jeffery is head of policy at the Institute of Race Relations.
