Terence Corrigan: Land expropriation bill weighted in state's favour, open to abuse - News24

12 October 2022 - For over a decade, the Institute of Race Relations has sounded warnings about the threat to property rights in South Africa.

Terence Corrigan

For over a decade, the Institute of Race Relations has sounded warnings about the threat to property rights in South Africa. 

Our concerns were often met with scepticism. The most common accusation was that we were being 'alarmist'. Of course, our detractors might say there is a need to be vigilant, but overall this was a minor concern whose significance we were inflating beyond all good sense.

It was inconceivable, their argument went, that the African National Congress or the government would recklessly imperil the economy and South Africa's future. 

Corruption and misgovernance aside, a deliberate policy choice that would make the country uninvestable was too much to believe. President Cyril Ramaphosa, it was confidently assumed, was intent on a comprehensive reform agenda. He understood just how destructive a degradation of property rights would be. The drive for Expropriation without Compensation (EWC) was merely political posturing on his part to satisfy the ideological impulses of his opponents, but he would ultimately defang it as it unfolded.

For optimists, EWC would deliver renewed impetus for land reform. It would be a vehicle for justice and might even produce 'better' property rights, as it would provide 'clarity' on the circumstances under which one's property could be taken. 

There were others who insisted (out of assumption or out of self-interest) that nothing of importance was happening, that whatever fallout occurred would land on someone else.

Some argued that it was necessary to push these measures through as it would vindicate Ramaphosa, fortify his position and underwrite his reform agenda.    

With the failure of the proposed amendment of Section 25 of the Constitution in December last year, it might have seemed that the issue had passed. Some might even have seen this as the Machiavellian culmination of the 'long game' that the President was playing. 

This was mistaken. A Constitutional amendment was no small thing, but as a means to confiscate property, it was never strictly necessary. 

The recent passage of two bills in the National Assembly – the Expropriation Bill and the Land Court Bill – shows that the danger remains very much alive. Passing with nothing like the fanfare attached to the Constitutional Amendment, they provide the state with formidable tools to take property.

System weighted in state's favour

The Expropriation Bill responded to a need to replace the 1970s-era legislation currently on the books. However, we at the IRR have argued that it establishes an expropriation system weighted in favour of the state, which would be ripe for abuse. The Bill, for example, allows a property to be taken before payment is made, and even where it is being contested – producing a powerful incentive for the owner of a property targeted for seizure to take what is offered. 

The Expropriation Bill sets out a list (open-ended) of circumstances in which 'nil' compensation would be permissible, specifically with respect to land. These include 'unused' land and land over which the owner 'fails to exercise control.'

There might be some justification for the latter – failing to exercise control – if this was purely about properties whose owners had disappeared and relinquished control over their assets. This is a factor in the collapse of urban environments.

But the Bill could be rather more wide-ranging in its remit. A property that has been invaded and occupied, for example, might be regarded as one over which the owner has failed to exercise control. When faced with land invasions, property owners are often pretty helpless to assert their interests. The authorities have often, time and again shown little interest in assisting them. Indeed, there are political forces that view land invasions as a positive good and others that regard it as politically expedient to accommodate them. 

It's not inconceivable that once an invasion had been accomplished, EWC might provide the state with a politically convenient and cost-free resolution. 

Perhaps most importantly, the Expropriation Bill defines the operative concept – expropriation – in such a way that it would facilitate the seizure of whole swathes of land on a 'custodial' basis without recognising this as expropriation. When this is done, such takings would be immune from any demands for compensation at all. This has been the case with water and mineral rights, and the prospect of doing so with land has been raised repeatedly.

The second piece of legislation is the Land Court Bill. This would establish a parallel court system to deal with land issues, including disputes around EWC. It is billed as a vehicle to 'promote land reform as a means of redressing the results of past discrimination and facilitate land justice'.

Particularly concerning is that it provides for lay assessors empowered to overrule the judge on matters of fact. With no guidance as to how they will be appointed, the risk exists that they may be selected on the basis of an activist pedigree. This will not be an inviting prospect when the court must adjudicate, for example, whether an owner has failed to 'exercise control' of his or her land, or whether other conditions for EWC have been met.

Listen to the warnings

These tools are now within the grasp of the state. Their implications stand to be profound. The state that exists is no model of rectitude. Those who might have bet on the reformist and pro-business instincts of President Ramaphosa as a brake on EWC might do well to note that he has shown at most an uneven inclination towards either. A few months ago, he told a party audience that EWC is a tool that 'we must utilise.'

Besides, the ANC is finding itself under growing pressure, and the prospect of its electoral demise raises questions of what it might do to sustain itself. Following the cooperation between the ANC and Economic Freedom Fighters to depose the Democratic Alliance and its coalition partners in Johannesburg, there is growing speculation about a national-level agreement. The IRR warned years ago that EWC would be a natural condition for a unity agreement between the two parties.

Whether it manifests itself as a populist last gasp, or an ideological lurch, the consequences would be very damaging indeed. But the legal means to do so are now fast approaching the statute books. For the sake of South Africa’s future, we might do well to listen to the warnings.

Terence Corrigan is the Project Manager at the Institute of Race Relations.