Submission to the Department of Public Work on Expropriation Bill
From Tshintsha Amakhaya
As published in the Government Gazette on 21 December 2018
22 February 2019
266 Lower Main Road
Tel: 021 447 5096
1.1. Tshintsha Amakhaya is an alliance of ten civil society organizations that support local community struggles in land and agrarian reform in rural South Africa. Our constituencies are farm workers, farm dwellers, former labour tenants, land restitution beneficiaries, small-scale farmers in communal areas and those farming on commonage land. The alliance focuses on three strategic areas; (i) building critical consciousness, (ii) movement building and campaigns and (iii) policy advocacy and litigation.
1.2. We welcome the opportunity to make a submission per an invitation by Thulas Waltermade Nxesi, the Minister of Public Works, for public comment.
1.3. We further express our request to make a verbal submission or participate in any meaningful engagements with the department when an opportunity arises.
1.4. Tshintsha Amakhaya has read and considered the implications of the Expropriation Bill of 2019, and submits the following comments and recommendations to the Department of Public Works.
2. Background and the purpose of the Bill
2.1. The Bill brings legislation in line with the requirements of the Constitution of the Republic of South Africa, 108 of 1996. To date, despite the efforts of progressive movements to ensure that expropriation would be provided for in our Bill of Rights, in support of land reform and the redistribution of access to land and other natural resources, our legal framework is still set by the Expropriation Act of 1975. The current Expropriation Act is in contradiction to the requirements and entitlements contained in:
– Section 25(2) of the Constitution, on expropriation in the public interest,
– Section 25(3) on the amount of compensation and the time and manner of its payment.
2.2. And Section 25(4) on the definition of public interest, property and the nation’s commitments.
3. Submission by Tshintsha Amakhaya
At the outset, it should be noted that Tshintsha Amakhaya notices that the draft Bill closely resembles the previous version of the Expropriation Bill that passed both houses of Parliament in 2016, but was sent back to Parliament by then President Jacob Zuma, because of qualms that the public consultation process was defective. Thus, Tshintsha Amakhaya will be monitoring public participation on this law-making process as embedded in the Constitution.
The draft law spells out in detail how expropriation – mostly with compensation – will work, detailing how valuation should be done, how disputes should be settled, and how money should be paid. No property, including land, may be expropriated arbitrarily or for any reason other than the public interest, the law holds.The points that Tshintsha Amakhaya would like to raise with the Department of Public Works, elaborated in further detail below, can be summarised as follows:
- The draft Bill strives, in its own words, to create “uniformity across the nation…to deal effectively with these matters”. In doing so, the Bill must create a balance between the government’s need to expropriate land to fulfil a public purpose (like building a road) or in the public interest (like facilitating land reform), and the property rights of those being expropriated. The problem with creating uniform legislation in South Africa is that the majority of people don’t own land or rights in land in a uniform way. Private property rights are registered in the deeds office and ownership is easy to prove.
- “Just and equitable” gives immense discretion to courts. Avoiding costly legal battles “decided by a court” should be read conjunctively or disjunctively, noting that Chapter 6(21) confirms that, in the absence of agreement on compensation, the court must adjudicate the dispute between the expropriation authority and the expropriated owner. Key to avoiding costly legal battles is to develop policy and procedures for determining and calculating the level of compensation in cases of expropriation.
- The Bill recognises both property owners with title deeds and what it calls “holders of unregistered rights”. However, the Bill gives no guidance as to how the expropriating authority must identify unregistered rights holders, or how to deal with communally held land and the persistent problem of some traditional leaders claiming ownership over all the land under their jurisdiction. Or, farm dwellers and labour tenants with the context that dates back to colonial labour system that forced black landowners to become tenants on their own land. In parts of the former Cape Colony and the old Boer republics, blacks were also subsumed within systems of slave labour. Individuals and families had to earn their tenure, by their labour, on land that was handed to whites. Today, in Western Cape, 20 000 are threatened with farm evictions. Which rights should be both expropriated and compensated? The Bill fails to discuss in particular secondary and other rights, other than private owners, who may be affected by an expropriation. If not clarified, this will effectively privileges the property rights of current owners over the property rights of the dispossessed, which is contrary to the letter and spirit land reform.
- The next step after identifying the relevant owners or rights holders is for the expropriating authority to “ascertain the value of the property”. This raises the second red flag for owners of land rights in communal land. The value of land depends on what the land means to different people. For a member of Tshintsha Amakhaya residing in Qoboqobo community in Keiskamahoek in the Eastern Cape, for example, the value of the land may have less to do with its sale value than with its value as an expression of the history and identity of a people. In determining compensation payable, Tshintsha Amakhaya understands that compensation must be just and equitable, reflecting an equitable balance between the public interests and the interests of those affected – including requirement set out in section 25(3) of the constitution. Therefore, expropriation must recompose – in the Bill, to determine compensation is the market value of the property that is taken into account as an important circumstance. The approach of the Bill entails starting with the consideration of market value and then determining whether this amount is just and equitable by considering other factors in section 25(3). Tshinthsa Amakhaya rebukes the assumption that incorporating all of the Section 25(3) factors will shift the calculation of compensation away from the market value. There Bill reads to distort the value of other factors in Section 25(3).
- However, a market value is not necessarily a guideline for the determination of compensation – it is necessary for the Bill to further articulate an approach to section 25(3) that does not enshrine it such as such a guideline. Given the Constitution’s aim to recognise and undo the divisions of South Africa’s past, Section 25(3)’s express incorporation of land reform as a factor in determining compensation should be considered seriously in any discussion of compensation of expropriation.
- The salient point is accepting market value as a factor, but its weight should not be overstated. Until a policy is established, the difficulty that all participants face – claimants, landowners and the state – is the absence of a clear policy, guideline or formula to determine what constitutes, just and equitable‟ compensation in any particular case. In each case the participants either start with market value and then add or subtract estimated amounts based on other Section 25(3) factors. Or, as in this case, there is a debate about other possible methods for determining the value of property in a particular case.
- Consideration of the history of the acquisition should be approached with a reference to the broader context of colonization and apartheid. The effect of this approach will deemphasise individual land owner’s rights over the rights of historically disadvantaged persons and communities without access to land or livelihood. The consideration of the history of acquisition do not relate only to a landowner’s direct participation in an unjust removal. Considering history of acquisition within the context of a grid of racially discriminatory laws, however, necessitates a different approach. Tshintsha Amakhaya considers this approach together with the purpose of expropriation factor.
The result is that there is – and will increasingly be if the Bill does not establish or is unable to provide a clear policy approach – a bottleneck of court cases raising again and again the same issue: How do we determine just and equitable compensation? The problem could be solved if the Commission was required or encouraged to develop a policy to guide the determination of “just and equitable” compensation. This would operationalize the criteria, demonstrating how these will be treated in different types of circumstances. Such policy would make land restitution (and other forms of land reform) more efficient, more transparent, more equitable and more predictable.
The Bill makes the process for expropriation too cumbersome and there are too many decisions along the way that can be reviewed in a court of law. Such a long process will not speed up land reform – or save the state money. The compensation money saved may well be spent on court cases against land owners. But making expropriation simpler, quicker and cheaper may also deny vulnerable land rights holders the opportunity to stop the state from expropriating their land for mining or other projects. Rural black communities have been by far the most vulnerable to losing their land to the state and mining companies in the last decade or so. Weak expropriation legislation will only worsen their situation.
The Department of Public Works needs to work with other spheres of government, including Rural Development and Land Reform, Housing and the Commission on Restitution of Land Rights. The updates of this Bill should be widely debated and widely publicised. The more predictable this process, the fewer court challenges are likely in the future, which is in the interests of everyone: claimants, landowners and the state.