Expropriation without compensation law destined for years of litigation
The recently released draft amendment to section 25 of the constitution is much ado about nothing.
Drafted to allow for the expropriation of land without compensation, the amendment has been met with a lot of anxiety and fear in business and political circles. Debate around it has damaged the economy, scaring local and foreign investors and helping to put paid to the Ramaphoria that came with Cyril Ramaphosa’s election as president of the country.
The draft begins with a deeply emotive preamble about the “need for urgent and accelerated land reform in order to address the injustices of the past that were inflicted on the majority of South Africans”.
But it says nothing to clarify how this “urgent” process will work.
“It will be a long time before ‘expropriation without compensation’ firmly becomes part of SA’s legal landscape,” independent legal analyst Phephelaphi Dube says.
As has arguably been the case in the vast number of land reform projects initiated in democratic SA, the process of finalising the draft constitutional amendment for expropriation without compensation will almost certainly be defined by uncertainty and, as a consequence, inevitable delay.
That is particularly ironic given that the draft bill’s preamble specifically notes that “the hunger for land amongst the dispossessed is palpable and the dispossessed are of the view that very little is being done to redress the skewed land ownership pattern”.
The six-page bill, which will be open to public comment and input from early 2020, states that “national legislation must ... set out specific circumstances where a court may determine that the amount of compensation is nil”. In other words, the proposed constitutional amendment speaks to the expropriation of land without compensation without it actually having been established exactly what land would qualify for such expropriation.
“The draft bill really doesn’t tell us much as it simply defers to the Expropriation Act for the finer detail,” Dube says.
“There already is the Expropriation Bill from early 2019, which will likely have to be amended to mirror the amended section 25 in the constitution.”
It is a clear case of putting the cart before the horse. Dube points out that the expropriation bill is not yet before any committee in parliament, meaning there is no attempt yet to reconcile the bill with the still to be amended section 25 of the constitution.
While the expropriation bill identifies five categories of land that would qualify for expropriation without compensation, these categories are themselves ambiguously worded and thus ripe for vehement and prolonged debate — and, inevitably, legal challenge.
“Clarity is needed in every single one of the categories. So where the expropriation bill makes reference to land that is held solely for speculative purposes, what exactly does this mean? If it’s the only piece of land an individual owns, can it still be expropriated?” she asks.
“The expropriation bill speaks about land that has been abandoned by the owner qualifying for expropriation without compensation. Again: what does this mean? Do buildings that have been hijacked in inner-city Joburg qualify as having been abandoned? The owner may have lost effective control over the building but has he or she really abandoned the building?”
The expropriation bill also earmarks land owned by stateowned enterprises (SOEs) — almost all of which are teetering on the edge of financial collapse
— as qualifying for expropriation without compensation. But, as
Dube points out, this is “no big deal because the state has always had the power to take land from SOEs”.
Dube stresses that in terms of the current draft constitutional amendment, it is “important to note that expropriation without compensation will be limited to land reform”.
“That said, there is a need to properly define land reform. For example, can the state apply expropriation without compensation in acquiring land that’s lying fallow, after black land reform recipients have failed to make productive use of it?”
Ultimately, the courts will be charged with determining whether land — and any “improvements” on it, for example houses
— qualifies for expropriation without compensation.
At present, land claims take on average 20 years to finalise, and the ambiguity that defines expropriation without compensation will only prolong and intensify such litigation.
For all its fine words about the need for “urgent and accelerated land reform” that redresses the “injustices of the past”, this draft amendment promises anything but that.
IT WILL BE A LONG TIME BEFORE EXPROPRIATION FIRMLY BECOMES PART OF SA ’ S LEGAL LANDSCAPE
CATEGORIES ARE AMBIGUOUSLY WORDED AND THUS RIPE FOR PROLONGED LEGAL CHALLENGE. CLARITY IS NEEDED