Why Expropriation Bill will only make SA's woes worse

17 October 2020 - South Africans have been told to feel calm-to-positive about the Expropriation Bill gazette last Friday. Among other things, the bill lays out five circumstances in which private property may be expropriated without compensation (EWC).

Gabriel Crouse

South Africans have been told to feel calm-to-positive about the Expropriation Bill gazette last Friday. Among other things, the bill lays out five circumstances in which private property may be expropriated without compensation (EWC).

A recent News24 report, Expropriation without compensation not ‘silver bullet’, says De Lille as bill submitted to Parliament, warned against over-enthusiasm about the bill, with Minister of Public Works and Infrastructure Patricia de Lille rightly noting that it will not solve all problems.

But will it solve any problems at all, or only make the country’s woes worse?

The news report states that De Lille “said the bill brought certainty to South Africans and investors as it clearly outlined how expropriation could be done and on what basis”.

Yet, in setting out the circumstances under which EWC will be applicable, the crucial phrase in the bill is “including but not limited to”. Thus, certainty is exactly what the proposed law does not provide vis-a-vis EWC.

Nor is the bill generally limited to expropriation of land; it does, however, define “property” as that which is “contemplated in section 25 of the Constitution”, which states that “property is not limited to land”.

Thus, far from introducing clarity on EWC, it escalates uncertainty. But even that is not where its problems end.

De Lille said the bill “provides that the amount of compensation will be determined by the courts”. This may be a welcome relief in light of pre-pandemic calls from the ANC to wrest that power from the courts and place it in the hands of the executive branch of government.

However, what is overlooked, here, is that going to court costs, while the bill ensures that targets of expropriation would be in the least viable position when it comes to bearing those costs.

As the bill makes clear, the court’s role in dispute resolution will begin only after notice of expropriation has been delivered – and likely only after dispossession has occurred, just when expropriation targets are least likely to be able to mount a costly legal defence.

De Lille further avers that the government should be trusted to refrain from pursuing EWC, even where the bill allows it. She says: “The bill outlines circumstances when it may be just and equitable for nil compensation to be paid. It does not prescribe that nil compensation will be paid.”

The implication that, in the absence of “prescription”, executive branches of government can be trusted to demand EWC only on rare occasions and not whenever it suits self-interested ends is at odds with past experience of power abuse.

Consider the Auditor General’s findings that municipalities take an average 180 days to pay creditors, and that more than R60 billion of past irregular expenditure “has not been dealt with”.

The temptation to seize more wealth will be especially great for those 30% of municipalities in dire financial straits who may observe that Eskom and other debts could be settled via land handovers.

Furthermore – to use a specific land reform example, covered by News24 – consider the case of farmer David Rakgase, who had to struggle for 18 years to get the government to honour a 2002 agreement to sell him a plot of state land for R621 000. Even after a 2019 court order saying that the initial price must be accepted, the state insisted he pay R5.5 million instead.

Or consider the Mpumalanga farmers who recently accused the Department of Agriculture, Land Reform and Rural Development (DALRRD) of threatening them with eviction from state land for refusing to pay bribes to executive officials.

Trusting the bill’s nominated “expropriating authorities” to play straight and fair with a new set of unlimited conditions for EWC on a national scale, and with the deck stacked against expropriation targets in court proceedings, is hope stretched to fantasy.

Deputy President David Mabuza has said the bill recognises the “urgency required to address injustices of the past and restore land rights in a responsible manner”.

Indeed, completing the programme of land restitution is an urgent demand of justice. Yet the broader programme of land redistribution does not, according to the ANC’s own polling, even come within the top 12 priorities of ordinary South Africans.

The Institute of Race Relations’ polling found that only 2% of black respondents prioritised “speeding up land reform”.

The most urgent national demands are indeed for security, stability, jobs, better education, and service delivery. The bill is most assuredly not a “silver bullet” that will deliver on promises to meet these demands – it is an artillery shell that will explode them.

Gabriel Crouse is a writer and analyst at the Institute of Race Relations.