Unconstitutional Expropriation Bill must be rejected, IRR tells NCOP

South Africa needs a new expropriation law, but the present Expropriation Bill is unconstitutional, undermines property rights, and poses enormous risks to the country’s already struggling economy.

So said the Institute of Race Relations in its oral submission on the draft legislation to the National Council of Provinces today.

The IRR agrees that South Africa needs new expropriation legislation – but what it really needs is a better expropriation bill that is fully in line with the Constitution.

Said IRR Head of Policy Research Dr Anthea Jeffery, who made the presentation: “The Bill still allows the expropriating authority, after completing some preliminary steps, to take ownership and possession of land and other property by serving a notice of expropriation on the owner or other rights holder. However, the Constitution requires a prior court order confirming that the proposed expropriation is valid and deciding on just and equitable compensation.”

The Bill recognises that a prior court order is needed for most temporary expropriations (except where a disaster has occurred) and also to extend a temporary expropriation from 12 to 18 months. But it declines to acknowledge that a prior court order is also needed for a permanent expropriation – which is a far more serious incursion into property rights.

Added Dr Jeffery: “In allowing a disputed expropriation to proceed without a prior court order, the Bill contradicts a number of sections in the Constitution. These include Section 25, the property clause; Section 33, the right to administrative justice; and Section 34, dealing with the right of access to court. In addition, its ‘nil’ compensation clauses conflict with core constitutional rights and are so vaguely worded as to undermine the rule of law. Finally, the Bill’s definition of ‘expropriation’ is too narrow – and is intended to allow the state, in time, to take custodianship of potentially large swathes of land without paying any compensation for this land at all.”

Dr Jeffery concluded: “The Expropriation Bill should be brought in line with the Constitution by replacing the definition of ‘expropriation’ and removing all ‘nil’ compensation provisions. A prior court order should also be required for all disputed permanent expropriations, as the Bill already demands for most temporary expropriations.

“The expropriating authority must start by satisfying a court that its proposed expropriation is truly in the public interest and that the amount of compensation it plans to offer is just and equitable in all the circumstances. Only after it has obtained a court order confirming these (and any other relevant) points should it be able to issue a notice of expropriation, to which the court’s order should be attached.

“In addition, appropriate time periods for the passing of ownership and possession must be inserted. As regards ownership, for example, this should be 180 days from the service of the notice of expropriation, rather than the single day the Bill currently allows. The compensation due must be paid in full before ownership passes to the expropriating authority – failing which the notice of expropriation should become invalid and fall away. (This would be a significant sanction for late payment and would promote compliance.) In addition, relevant factors in computing just and equitable compensation must expressly include damages for direct losses, such as lost income and moving costs.”

The IRR will continue to monitor the progress of the Expropriation Bill through the NCOP. It will keep fighting for a better expropriation bill by far – and to ensure that the property rights of all South Africans are not further weakened by the current measure.