The government has recently released a draft of controversial Expropriation Bill and calling for the public to have their say by submitting written submissions. If passed into law, the draft Bill would allow the government to take land without paying for it where it is fair and appropriate.
It’s important to note that the draft law stands apart from the process to amend the Constitution, and does not rely on it; with or without a change to the Constitution, the new Bill would allow expropriation. The draft law spells out how expropriation – mostly with compensation – will work, detailing how valuation should be done, how disputes should be settled, and how money should be paid.
A motion was put forward by EFF leader Julius Malema to have an ad hoc committee review and, ultimately, amend the Constitution, but the ANC proposed an amendment, which was adopted, to have a Constitutional Review Committee make the decision. At a conference, the ANC decided that “Land expropriation should be pursued without destabilising the agricultural sector, without endangering food security in our country and without undermining economic growth and job creation”. Thus, the consensus is that a Constitutional amendment is necessary to accelerate transformation in South Africa and rectify ownership patterns dating back to apartheid and white minority rule, but it cannot be at the expense of the country’s economy and foreign investment.
Key takeaways from the draft Bill:
- Land can be taken without paying for it if it’s occupied or used by a labour tenant, held for purely speculative purposes, belongs to a state-owned company, or where the owner has abandoned it.
- An expropriating authority may have a right to use property temporarily if it’s urgently required for no more than 12 months.
- The public has 60 days (from 21 December 2018) to submit written comments on the Bill to the Department of Public Works.
- Only the Minister of Public Works can expropriate property, with or without compensation. The Minister can also seize property on behalf of other organs of state (upon their application) if it is in the public interest or to serve a public purpose.
- Part of a farm could be expropriated, but if the remainder is so impaired that it would be fair to extend the expropriation, the owner can ask that the entire farm be taken.
- The value of the property must always be determined even if compensation is not payable.
- If a bank has any rights vested in the property, the owner must inform the state.
- Valuations of property must include market value, current use, historical use, previous state input and the purpose of the
- The owner must maintain the property until it is handed over – but can claim money spent on maintenance back from the state. If an owner fails to do so, an amount could be subtracted from the compensation.
- The state must give a detailed notice of intent to expropriates setting out reasons for expropriation, details for the property and how to object to the confiscation.
- The state must make an offer to compensate – and a fair one. Except in cases of urgent expropriation – which require the property to be handed back within 12 months – confiscation can only come after unsuccessful negotiations. The draft law specifies that the power to expropriate may not be used before the state has “attempted to reach an agreement with the owner” or someone with a right to the property “for the acquisition thereof on reasonable terms.”
- The owner must object to the expropriation within a month and indicate a figure regarded as just and equitable compensation.
- It may be just and equitable for no compensation to be paid where land is expropriated in the public interest.
- No property, including land, may be expropriated arbitrarily or for any reason other than the public interest
The entire draft bill can be view here.
How the public can comment on the Bill
As mentioned, the public has 60 days (from 21 December 2018) to submit written comments on the Bill to the Department of Public Works. It’s essential for citizens to know that they have some power when it comes to influencing the passing of legislation in South Africa.
Send written submissions to the Director-General of Public Works:
Private Bag X65
Or deliver by hand at:
Central Government Offices (CGO) Building
256 Madiba Street
Send a Fax or Email to:
Fax: 0861 272 4554
E-mail: email@example.com / firstname.lastname@example.org