Expropriation debate | Bill skewed towards state: Anthea Jeffery responds to Elmien du Plessis - News24

12 February 2021 - Elmien du Plessis writes that the Expropriation Bill of 2020 is "a good piece of legislation" for which "we have been waiting for 26 years" (Expropriation Bill: Making law is a political process, but it mustn’t be misread, 4 February). But the Bill is just as unconstitutional as the 1975 Expropriation Act it is intended to replace – so its adoption will hardly be a step forward.

Anthea Jeffery 

Elmien du Plessis writes that the Expropriation Bill of 2020 is "a good piece of legislation" for which "we have been waiting for 26 years" (Expropriation Bill: Making law is a political process, but it mustn’t be misread, 4 February). But the Bill is just as unconstitutional as the 1975 Expropriation Act it is intended to replace – so its adoption will hardly be a step forward.

According to Du Plessis, "perhaps the most important contribution" the Bill makes is that "it sets out the procedure" for expropriation. Owners will thus "know what their rights are and what they can do". She seems to assume that owners will have strong and certain rights which the state will be obliged to respect. But this turns the truth on its head, for the procedures set out in the Bill are heavily skewed in favour of the government and are anything but "fair".

One of the key problems in the Bill is that it allows an expropriating authority – once it has completed certain preliminary steps – to expropriate property by the simple expedient of serving a notice of expropriation on the owner.

Under this notice, both ownership and possession of the property will pass to the expropriating authority on the specified dates, which could be very soon. The only relevant time limit in the Bill is that ownership cannot pass before the notice of expropriation has been served.

The transfer of ownership and possession will happen automatically on the stated dates. This will occur irrespective of any dispute or the adequacy of the "nil" or other compensation being offered. Often, moreover, the transfer will take place well before any compensation has been paid.

Court battles 

An owner with sufficiently deep pockets will be able to seek a court order setting aside the expropriation or increasing the compensation to a more appropriate amount. In practice, however, most owners will lack the means to go to court – and especially so if they have already lost ownership or possession of their key assets and have not yet received a single cent in compensation.

Particularly important too is a provision in the Bill that seeks to put the onus of proof in any such court challenge on the expropriated owner. This will greatly increase the risks of litigation, as owners who fail to convince presiding magistrates or judges that the compensation should be higher, for example, will have to pay much of the state’s legal costs in addition to their own substantial expenses.

This is a daunting burden. It also undermines the Bill of Rights and the protections it is supposed to offer the puny citizen against the enormous power of the government. If fundamental freedoms are to be meaningful in practice, it is the state that must bear the onus of proving its compliance with guaranteed rights. Putting the burden on the citizen instead makes a mockery of the protections the Constitution is supposed to provide.

Du Plessis obscures these vital issues. She also suggests that owners will be able to protect themselves by going to court to contest the amounts of compensation likely to be offered "at various moments in the process" and even before expropriation notices have been served on them.

But how many owners can afford to go to court against a threat of expropriation that might not in fact materialise? And especially when they know that they will have to pay most of the legal costs if the court, as is likely, decides that the issues are not yet ripe for adjudication?

Du Plessis also says that "to reduce the Bill to an instrument of expropriating land at nil compensation is an oversimplification of what it seeks to do". But this is a "straw man" argument that misrepresents what critics of the Bill are saying.

Part of the problem, as Du Plessis acknowledges, is that the clause allowing for "nil" compensation on expropriation is so vague and open-ended that no one knows how widely zero compensation may in time extend.

There is also a major risk (ignored by Du Plessis) that the ANC will use the narrow definition of "expropriation" in the Bill to pass further legislation vesting all land in the custodianship of the state without compensation being paid.

The Bill’s definition would help achieve this, as it draws a technical and artificial distinction between the state’s acquisition of ownership – which would qualify as an expropriation for which compensation would be payable – and the state’s "assumption of custodianship", which would be a mere deprivation of property not meriting compensation at all.

Nil compensation for all land would thus be achieved, not via expropriation, but rather under the rubric of custodianship. There is also a precedent for this, as all privately owned water and mineral resources have already been vested in the trusteeship or custodianship of the state without compensation being paid.

Particularly striking is Du Plessis’s unwarranted assumption that, "once the state becomes the owner, it transfers the property to the land reform beneficiary", while "the two processes can happen simultaneously in the Deeds Office".

Access to land

This suggests an extraordinarily naïve belief that the purpose of the Bill is truly to "return" the land to "the people". But even ANC propaganda in support of the Bill does not pretend that land expropriation will be followed by the transfer of ownership to black South Africans. Instead, the ANC speaks solely of providing "access" to land via either leases or land use rights.

This emphasis on "access" rather than ownership is already evident in the State Land Lease and Disposal Policy (SLLDP) of 2013. Under this policy, black farmers must generally lease their farms from the government for 30 years, and then for another 20 years, before they may have an option to buy.

So great is the government’s determination to avoid any transfer of ownership that it refused for 17 years to honour its 2002 agreement (made before the SLLDP was adopted) to sell David Rakgase the Limpopo farm he had successfully been working since 1991.

Though Rakgase was 78 years old by the time the matter came to court, the land department still demanded that he lease the land for at least another 30 years before ownership could be transferred to him. By which time he would most probably have died, of course.

The Gauteng High Court in Pretoria rejected the government’s perspective and ruled that the 2002 contract must be upheld. However, if that agreement had not been in place, the SLLDP would have robbed Rakgase of any prospect of ever gaining ownership.

Du Plessis ignores not only the SLLDP but also the ideological purpose of the Bill. This is not to provide redress for past injustice, but rather to help advance the National Democratic Revolution (NDR) to which the ANC has been committed since at least the 1960s.

The NDR is a Soviet-inspired strategy aimed at gradually moving the country from capitalism to socialism (and finally to communism). Socialism demands pervasive state control, which cannot be achieved when the ownership of land and other assets is dispersed among millions of individuals and enterprises. In addition, private property rights are crucial to free markets, which cannot function without them.

No analysis of the Bill can be complete without acknowledging the salience of the NDR, yet Du Plessis ignores this. Instead, she continues to describe the Bill as a "good" statute, which "does not want to limit land ownership".

But the Bill is in fact a draconian measure that can and will be used to strip South Africans of their homes, land, pension rights, businesses, and other assets. This will be done in incremental steps by a self-serving political elite determined to pursue its destructive socialist ideology – and indifferent to how much suffering this causes.

- Dr Anthea Jeffery is Head of Policy Research at the Institute of Race Relations.