South Africa’s Expropriation Bill poses a threat to property rights – Terence Corrigan - BizNews

Bigger problems
By Terence Corrigan

And it’s not surprising. The power’s off, over a third of the country is out of work, the cost of living is biting into even the most essential purchases. Worries are not just for the grocery bill or the next bond payment, but for the children’s future. Ons kry almal swaar.

Yet the doings of Parliament, however obscure they may seem, exercise a profound influence on our everyday lives, and not always for the good. Bad legislation and deficient oversight have played no small role in bringing us to this point. The Zondo Commission indicted the institution for having failed to stand effectively against state capture.

Bear this in mind.

Currently, the Expropriation Bill is before the National Council of Provinces (a part of Parliament whose activities are doubly obscure to the public). Public comment on the matter closed last week, and it now remains for the bill to be processed through in this forum.

The Institute of Race Relations has long warned of the dangers of this proposed piece of legislation. The Expropriation Bill is a central element of the Expropriation without Compensation agenda, an issue that has subsided in the public mind after the drama of the Constitutional Amendment being defeated.

The constitutional matter was an important one, and its defeat an important victory for those valuing property rights and sensible land reform – and, of course, for those concerned with constitutionalism and the rule of law. After all, very few commentators, even sympathetic ones, viewed a constitutional amendment as necessary (even where no-compensation takings might be contemplated), and scapegoating South Africa’s supreme law would set a dreadful precedent for the future.

A new law, though, that empowered the state more freely to confiscate property would be most necessary. This is what the Expropriation Bill does.

As the IRR has noted previously, a key concern is that the bill defines expropriation in a manner that requires the state actively to take over the property as an owner. Simply depriving an existing owner of his or her ownership does not amount to expropriation. This appears (consciously) to mirror the 2013 Constitutional Court judgement in Agri South Africa v Minister for Minerals and Energy, which declared this view of the deprivation of a mineral deposit. The judgement specified that it was limited to the set of circumstances of the case, but the logic has been appealing to many in the ruling party. The Bill would make it a general principle of law.

Mass ‘custodial’ seizure

Essentially, it would legitimate a mass ‘custodial’ seizure of a particular resource on behalf of ‘the people of South Africa’ without any obligation for compensation. This is an objective that numerous political figures have expressed sympathy with. Indeed, in 2019 a senior official from the Department of Rural Development and Land Reform told an audience at the World Economic Forum that this was part of the objective.

Even if such a taking is not undertaken, the bill explicitly makes EWC – expropriation with ‘nil’ compensation – possible. Notably, it lists a number of conditions under which this can be done. The list is, however, not limited to these and it is quite conceivable that a determined government could use this legislation to push the envelope on its powers.

As we have said previously, one of these conditions is that ‘nil’ compensation might be payable if ‘an owner has abandoned the land by failing to exercise control over it’. What this will mean in practice is a matter of interpretation, but ‘failing to exercise control over it’ could mean something beyond lack of interest and wilful neglect.

A significant problem for property owners in South Africa has been ‘invasions’ or (in more genteel terms) ‘occupations’: the freelance taking of land by private individuals or interests. This is a practice that is often organised (Karl Kemp’s Promised Land gives insight into this), and is at times egged on by politicians.

It’s not beyond the realm of the possible that a land invasion might be interpreted as the ‘failure to exercise control’ that the Bill contemplates. Indeed, taking this position would absolve the state of the politically messy responsibility of acting against invaders, something that it has often shown scant interest in doing or capacity to do.

Meanwhile, other measures are also at various stages of their legislative journeys. The Unlawful Entry on Premises Bill, for example, is intended to replace the Trespass Act. It requires that as soon as an owner becomes aware of an invasion, he or she should report this to the police, who must act to remove the invaders.

Little interest

Well and good, but in practice the police have frequently shown little interest in enforcing trespass violations. There is also the matter of another court case – this time in the Western Cape High Court – last year in the matter of the widely publicised eviction of Bulelani Qolani during the recent Covid lockdown. The court ruled that because significant constitutional rights are at stake, court orders would be required before evicting illegal occupiers who had established some sort of shelter. Would the police then even have the right to take such action before a court had been approached?

Moreover, the Unlawful Entry Bill has an intriguing provision that justifies entering onto someone else’s property when ‘the person charged reasonably believed that they had title to or an interest in the premises that entitled them to enter the premises.’ Once again, the impact of this remains to be seen, but it’s hardly inconceivable here that once an invasion happens, once people have erected their structures and have been in residence for months as the wheels of justice grind slowly away (not to mention the influence that populist politics might play) such a belief might well have been inculcated. 

And then of course, there is the Land Court Bill. This is meant to adjudicate (as is obvious from its name) matters relating to land. We have previously pointed out that a concerning feature is that cases would be presided over by a judge and two lay assessors. The assessor would have the power to override the judge in matters of fact.

Natural choice

With no clear requirements for assessors’ expertise, the prospect exists that people within the ‘land activism’ orbit could be a natural choice. Their ideological and political orientation – rather than the demands of the law or of trained legal minds – would then have great influence over such questions as whether a tract of land has been ‘abandoned’ or whether an owner has not appropriately exercised control.

The potential for mistakes and abuse in all this is clear.  

Yes indeed, for the moment it may well seem that we have bigger problems. But if what has been described above begins to unfold, we’ll be seeing a new crop of problems of a similar magnitude. The protection of property rights is a key part of any growth-orientated strategy. Within our legislative system, something else is being produced.