Gabriel Crouse
The Institute of Race Relations (IRR) has long warned that, if property rights are undermined, the consequences will be dire, but a new threat is emerging.
To understand what lies in store it is necessary to detail and then connect a few dots. Section 12(3) of the Expropriation Bill is a good place to start.
This states that private property can be subject to expropriation without compensation (EWC) in circumstances where – even if one presents one’s title deed – “an owner has abandoned the land by failing to exercise control over it”.
The key to this channel for EWC is defining “abandoned” as a loss of “control over” the property. On this definition, if an owner is outside their own property, looking in but unable to get any further because of harassment by illegal land invaders, then the owner has lost control over the property.
The Expropriation Bill would then trigger EWC. The Bill will be voted on by a parliamentary committee on 14 September.
Technically a motion to remove Section 12(3) could be made, but the ANC/EFF-dominated committee is expected to keep this clause in.
The second dot to connect is the Western Cape High Court’s recent ruling in the eviction of Bulelani Qolani, the man who was evicted while undressed in 2020.
The court determined that if someone gets onto a property and they build their own shack, then if they have got beyond “merely putting pegs in the ground” then the occupation may be considered as “perfected”.
That means the owner cannot evict this person without going through a court process that could last years and which must involve providing alternative accommodation to the illegal occupiers.
In other words, once someone has gained access to a property for as little as a few hours, neither you nor the police can get them out; a judge’s order is required.
This means that the law will soon make it as easy as possible for people to invade land, effectively seizing control of the property from the rightful owner.
Once the owner’s land has been taken, the state can finish the job by taking away their title deed through a Section 12(3) exercise of EWC.
It would be easy for officials to argue that such expropriations serve the “public interest”, because the state could then provide “alternative” accommodation to the illegal invaders by nationalising the private property and telling the occupiers they can stay where they are, because that is now government land.
The transport costs for getting the illegal invaders to their new “alternative”, “legitimate” accommodation would be R0.
But if the ANC’s mission was to incentivise land invasions, then these two dots would still leave the invaders exposed.
They could get in and stay in and cause the property to undergo EWC, but since their original entry was illegal, they would still be guilty of a crime and therefore run the risk of prison.
Enter the Unlawful Entering on Premises Bill, which is open for public comment until 16 September. Section 3(4) states that “it is a defence” against the charge of trespassing if “the person charged reasonably believed that they had title to or an interest in the premises that entitled them to enter the premises”.
This language is very vague. Under certain disambiguations it would never be reasonable to suppose that someone can come into your property to set up their new home without asking your permission first.
However, there have been many calls for land grabs from the EFF and with the ANC driving through the Expropriation Bill to seize land from people that have had control ripped away, it would not be difficult to see courts feel the pressure to interpret the following “defence” to be acceptable: “That person has extra space that I need, so I occupied it.”
The fourth dot is the Land Courts Bill, which will make that pressure even greater.
If this Bill becomes a law it would change the rules of evidence in Land Courts to give more weight to hearsay and undo established procedural protections.
Perhaps most alarmingly, it will allow partisan assessors to overrule presiding judges in deciding all questions of fact.
This means ideologues who push for EWC would have a direct route to forcing the courts to believe that someone reasonably thought they deserved to take another person’s property So let’s connect the four dots.
EFF politicians call for land invasion. Then a court says that owners may not evict people once they have got past the “pegs” stage of construction and they cannot be removed for months, or years, and only if alternative accommodation is supplied.
Then the ANC’s Expropriation Bill says that once invaders take control of the land the state can take control of the title deed.
Then the Land Courts Bill allows the original crime of illegal occupation to go unpunished. Since the ANC began its open push for EWC with the elevation of President Cyril Ramaphosa, it has promised the mistakes of Zimbabwe will not be repeated. Here, it seems, land invasions will be done “by the book”, with laws to legitimise theft every step of the way. Venezuela tried the same thing and it ruined the lives of millions there, too.
Gabriel Crouse head of campaigns at the IRR
