The headline ‘Clarity at last on land expropriation’ (15 October 2020) suggests that the recently published Expropriation Bill will provide South Africa with the elusive certainty that is so important to economic take-off.
Actually, it does not. While it does list conditions under which expropriation may be undertaken at ‘nil’ compensation, these are prefaced by the words ‘including but not limited to’. This is not a closed list and much else could ultimately be invoked to deny compensation.
While it does promise ‘just and equitable’ compensation, the procedures involved are not reassuring. Powers to expropriate are widely distributed, including to our highly problematic municipalities. Attempts must be made to negotiate on a price; if this fails, a notice of expropriation will be issued, and representations invited on the expropriation itself or the compensation offered; the ‘authority’ must consider these, but nothing more – no explanation is required if it rejects them.
Thereafter, it can take the property by issuing a notice specifying the date on which it will take possession. This could be within days. Yes, this may be challenged in court, but this may only be possible after the property has been taken – and at considerable cost.
Be aware too that this Bill defines expropriation as the ‘compulsory acquisition’ of property by the state. On this basis, a mass taking of land into the custodianship, rather than the ownership, of the government is unlikely to count as an expropriation or to qualify for the payment of any compensation at all. This is what has already happened with mineral and water rights.
The editorial is correct that the broader context is important. The amendment of Section 25 of the Constitution may overtake and force changes to this Bill – to the further detriment of property rights. The ANC and the EFF have invested greatly in this policy, and so has President Ramaphosa personally.
In other words, certainty remains elusive – and it is quite possible that when that certainty arrives, it may not be congenial to growth and investment.
Terence Corrigan
Project Manager, Institute of Race Relations
