The Expropriation Bill, which was tackled by Parliament and later withdrawn by the Minister of Public Works in 2008, is back.  Questions once again arise as to the motivation for the Bill, its constitutionality, how it interacts with existing legislation dealing with expropriation, how the fiscus will afford its consequences and how the Bill fits into the government’s National Development Plan: Vision for 2030 (NDP).

Though the Expropriation Bill goes some way towards streamlining the process of land reform and seeks to aid the necessary development of infrastructure, concerns linger regarding its propensity to dissuade foreign investment particularly because the proposed process pre-empts the right to payment and to challenge the fairness of the amount offered.  As long as these concerns remain, rather than stimulating growth, the Bill will constrain it, retarding the NDP’s attempts to meaningfully address unemployment, inequality and poverty.

The current version of the Expropriation Act predates the Constitution.  The motivation for the Bill is to ensure the consistency of the Act with the spirit and provisions of the Constitution, especially in relation to constitutional rights such as equality and the right to property.

The Bill acknowledges the constitutional framework within which just and equitable expropriation ought to take place. Within this framework, the Bill recognises land reform and transformation which aim to bring about equitable access to natural resources as integral parts of the public interest.  It also recognises administrative action that is lawful, reasonable and procedurally fair as being a cornerstone of South Africa’s democracy. 

The first drafts of the Bill were considered unconstitutional because they empowered government officials to fix the amount of compensation for expropriated property.  The latest draft of the Bill is an improvement on its predecessor as it gives a party to an expropriation the option to approach a court to decide or approve the amount, the time or the manner of payment of compensation, or on any other matter relating to the application of the Bill.  Nevertheless, many remain concerned that in its current form the Bill extends to all kinds of property and allows the state to take up ownership and possession of property before paying any form of compensation, which undermines secure property rights.  Although there is recourse to the courts, this is a slow and expensive option.

There is a plethora of legislation, both national and provincial, that deals with expropriation. All laws already dealing with the expropriation of property will continue to apply to the extent that they are consistent with the Bill and the Constitution. If there is a conflict between any existing legislation and the Bill in relation to matters dealt with by the Bill, the Bill will prevail.

The National Development Plan acknowledges that the Constitution provides a legal, political and moral basis for redress measures such as land reform.  However, central to the NDP’s broad framework is the recognition that the Constitution prevents confiscation of property without compensation and emphasises the economic importance of secure land tenure.   

While expropriation is an extreme measure, it is arguably a necessary tool for the state where circumstances dictate its necessity. Some unions have argued that promulgating new legislation is unlikely to speed up the sluggish evolution of land distribution in South Africa.  They have called for the more drastic measure of amending the Constitution to facilitate an acceleration of land redistribution.  Promulgating the Bill rather than amending the Constitution reaffirms Government’s commitment to secure property rights. 

By: Paul Hedderwick, associate and Matt Hacking, candidate attorney