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Land Expropriation without Compensation: The Draft Bill and How to Have Your Say

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 

Pretoria 0001

Or deliver by hand at: 

Central Government Offices (CGO) Building 

256 Madiba Street 

Pretoria 

0002

Send a Fax or Email to:

Fax: 0861 272 4554 

E-mail: livhuwani.ndou@dpw.gov.za / johannes.lekala@dpw.gov.za 

 

 

DISCLAIMER 

 

 

Knowing Your Rights When Facing an Eviction

Cape Town mother Inganathi Mafenuka gave birth to quadruplets earlier this year. However, the joy of being becoming a mother was somewhat marred by the worry of not having a home to return to. Speaking to media, Mafenuka explained that the owner of the house in Khayelitsha had informed her that she and her mother would have to vacate the premises or face eviction.

Evictions happen in cities and rural areas across South Africa every year. And the unfortunate reality is that many disgruntled or unreasonable landlords evict occupants illegally, and often in violent ways. Whether these landlords are not in the know or have little regard for the law, it doesn’t change the fact that to evict someone, a legal procedure must be followed.

Everyone has the right to adequate housing

According to our Constitution, all South Africans have the right to access to adequate housing. The government also has a responsibility to take reasonable measures to in time provide decent housing to everyone.

The law protects the rights of property owners as well as the rights of occupants. And when faced with eviction, inhabitants can defend themselves.

Standing up to illegal evictions: know the law and your rights

It’s important to remember, that you cannot be legally evicted from your home without a court considering all the circumstances and the effect that the eviction will have on you and your family. These circumstances include whether there are vulnerable people (such as the elderly, people living with disabilities, children and women-headed households) involved; how long you have resided at the premises; and whether you will be left homeless.

If you are renting a property, it’s important to keep in mind that the property owner as Landlord can go to court and seek an eviction against you (remember, they cannot physically evict you) for one or more of the following reasons:

  • your rental agreement has expired;
  • you haven’t paid rent;
  • you’ve intentionally damaged the property;
  • you cause trouble with the neighbours;
  • you haven’t followed to all of the terms and conditions of the lease.

Some Landlords disregard the law and rights of tenants and employ tactics to remove tenants from the property forcefully. It’s important to know that:

  • your landlord isn’t allowed to lock you out;
  • your landlord cannot sell your possessions to compensate for unpaid rent (only a court can enforce this);
  • you must be served with an eviction notice from the court, which is dated and signed by the landlord and agent;
  • if you believe the eviction is unfair, you can approach the Rental Housing Tribunal or the court for assistance
  • when the day you are supposed to leave the premises arrives, and you refuse to go, you cannot be forced to leave the premises, unless there is a court order.

The legal process for eviction

If you are in breach of your rental agreement, the landlord’s first step must be to send you a letter making you aware of the violation and giving you time to remedy the situation. If you don’t find a solution by a specific date, the contract will be cancelled, and the landlord can ask you to leave. If you don’t vacate the property, the landlord can go ahead and apply for an eviction.

The Sheriff of the Court will serve a Notice on you and indicate when you will have to appear in court. On the day you appear in court, the Magistrate could postpone the proceedings for arguments. If you don’t oppose the application the court will consider all the facts, determine if you are an unlawful occupant and give you reasonable time to find other accommodation and leave the property the court has made an order, and you still don’t leave the premises, the Sheriff can remove your belongings.

There is usually enough time for you to gather all your facts on the matter so that you can present a counter-argument. Courts are known to side with tenants if you can prove that the landlord is claiming that you haven’t paid rent, but you have statements to back up that fact that you have. Or if you the landlord has failed to carry out maintenance on the house and you deducted the costs from your rental amount.

Using the law to protect yourself against an illegal eviction

Since a forced removal from the property without a court order is unlawful, it is well within your rights to approach to police and make a case. The police should then warn the landlord or others involved that they are breaking the law and that they could face being arrested if they persist.  Alternatively, you could also approach a lawyer for assistance.  If you don’t have legal cover and cannot afford a high-profile lawyer, you can contact the Legal Aid Board or a university’s legal clinic, which does pro bono (free) work.

We’ve Got Your Back!

The eviction process can be complicated and frustrating, so it is always best to seek legal guidance. LAW FOR ALL offers expert legal advice, and its caring lawyers will assist you to the best of their abilities. Take a look at the affordable LAW FOR ALL policies.

DISCLAIMER

A President’s Power: ZUMA vs TRUMP

Ever wondered how South Africa’s Head of State influences the law?

Many would’ve given anything to be a fly on the wall during the Donald Trump/ Jacob Zuma phone call earlier this week, and while they both share the title “President”, the ways in which they can implement policy in their respective countries differs rather significantly.

In South Africa, the national government comprises interrelated branches:

  • Executive: The President, who is both Head of State and Head of Government
  • Legislative: Parliament, which consists of the National Assembly and the National Council of Provinces
  • Judicial: The Constitutional Court, the Supreme Court of Appeal and the High Court

Of course, all of the above must respect and govern in line with the South African Constitution, which is the country’s supreme law. Similarly, the US government is also made up of three branches, namely the executive ( the President), legislative (Congress – the House of Representatives and the Senate) and judicial (Courts).

As Head of State and the national executive, President Zuma exercises executive authority together with other members of the Cabinet, namely the Deputy President and Ministers. The executive develops policy, for example, by preparing and initiating legislation, which it submits to Parliament for approval. It then implements that policy by running the administration of the country through the different government departments. The executive must account for its actions and policies to Parliament.  The President also has the powers to sign bills into laws or veto it, refers bills back to Parliament or to the Constitutional Court or can call for a referendum.

However, while Zuma can only formulate a policy together with his Cabinet, which must then be approved by Parliament, Trump has an Executive Order (a presidential decree with the force of law) power.  An example of which would be his controversial “travel” ban.  These orders can be challenged in the US Supreme Court if it violates the Constitution.

Furthermore, there’s a good reason why whoever is elected as the President of the United States is considered “the most powerful person in the world.”  He/ she is Commander-in-Chief of, arguably, the most powerful military in the world and has the launch codes for America’s nuclear missiles!

So while a head-to-head in the global power game seems overwhelmingly in Donald Trump’s favour, Jacob Zuma is still an incredibly powerful figure in South Africa.

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