When process is the enemy of progress
Last week I argued the Expropriation Bill would not achieve land reform. I proposed instead a forward-looking land redistribution law for people who need land but cannot afford to pay for it, as contemplated by section 25(5) of the constitution.
Today, I turn into the procedural aspects of the bill, which not only blunt its effectiveness, but also might render it unworkable altogether.
Section 25 is one of the constitution’s most important provisions because it seeks to transform property relations in SA — not for its own sake, but to undo the tragic legacies of colonialism and apartheid.
Good laws are designed to strike the right balance. Bad laws, on the other hand, tend to manifest the biases and fears of their drafters. The Expropriation Bill should have come earlier than it did — a lot earlier. But it didn’t. It missed the euphoria of freedom. Those were the Mandela years.
The last decade of freedom has been characterised by kleptocracy, inequality and deepening poverty. It is easy for the political class to shift the blame for its own failures to the propertied classes.
However, the rich also have a lot to answer for. The apartheid and the post-apartheid economy worked for them. According to the political class, with the Expropriation Bill we will finally be able to resolve apartheid property relations.
However, the bill contains convoluted and cumbersome procedures that undermine its transformational intent.
The starting point for the expropriation process is an investigation to identify whether land is suitable for expropriation, as well as whether there are registered or unregistered rights in respect of the land. This is required by section 5.
In this process, state officials may not have access to the land without the owner’s consent, failing which a court can grant an order for such access. Valuations of the identified land are also contemplated at this point. The process of investigating the suitability of the land for expropriation should establish whether there are registered rights in respect of the land.
If there are no such rights, a notice must nevertheless still be published inviting anyone with unregistered rights to identify them.
The investigative procedure in section 5 can take years to be finalised, and a reluctant property owner can use litigation to block the investigation and delay the expropriation.
Section 6 provides for a second process of consultation to be carried out with a municipality within which the land is situated to determine the impact of the expropriation on municipal planning. Though the legislation envisages that this process will take 20 days, municipal inefficiencies render this unrealistic. However, the state’s failure to obtain the required input from municipalities could scupper an expropriation.
It is only once municipal representations have been obtained that the expropriation itself can begin, and this is the third stage of the process.
Under section 7, once the state intends to expropriate land, notice must be given to the owner of the land, holders of unregistered rights in the land, the municipality and the department of land affairs. This notice must identify the property, the purpose of the expropriation, and the date on which it is proposed the expropriation will take effect.
The section 7 notice triggers rights to make objections and enter into negotiations. Where there is no objection to the expropriation, the parties can negotiate over the amount of compensation to be paid. Both the owners and holders of unregistered rights in respect of the land (for example, tenants, occupiers and customary law occupiers) are entitled to compensation.
They may each claim compensation, but are required to justify it. Once the compensation claim has been made, the state must decide whether to accept it. If the claim is accepted, the expropriation will proceed. However, if it is not accepted, the expropriation will not proceed and a new procedure will commence.
The fourth stage begins when the state has decided to expropriate the property, and is regulated by section 8.
The state must give notice of its decision to expropriate the property to the owners and holders of unregistered rights in the property. The notice should identify the property and set out the amount of compensation. The expropriated owners and holders of rights in the property are entitled to challenge the amount in court within six months of the issuance of the notice.
The notice of expropriation must also provide for the date of the expropriation. This date is crucial. Notwithstanding any challenge to the amount of compensation, section 9 provides that “the ownership of the property described in the notice of expropriation vests in the expropriating authority ... on the date of expropriation”. This means the land may be taken by the state on the date specified in the notice of expropriation.
Plainly, the process outlined above is complicated enough but with the inevitable delays that arise in litigation, it will become even more daunting and exhausting. However, this is not the end of the road. There is another process in the bill related to compensation decisions.
Under the bill, compensation is in the first instance determined by the state. And the state is entitled to determine that nil compensation should be paid for the land, taking into account specific factors, such as whether the land had been
The Expropriation Bill should have come earlier than it did — a lot earlier. But it didn’t. It missed the euphoria of freedom. Those were the Mandela years
acquired for speculation purposes, whether the land has been abandoned and whether the condition of the land poses a health risk to those who use it.
However, any determination of compensation by the state is not final. In terms of section 8, if the compensation is disputed, the expropriated owner may bring judicial proceedings for a final decision about compensation.
While the bill contains strong transformative language, its core aims will be undone by its processes. While courts are central to upholding the rule of law, the legal process may in fact be used to constrain the transformational impulses of the bill. A less cumbersome bill could easily have been designed, but we are captives of our past: some of the procedures contained in the 2020 Expropriation Bill have been lifted directly from the Expropriation Act of 1975 — the very same piece of legislation the bill is intended to repeal.
It is too late now to do what we should have done many years ago, which is to design a law that will be true to the constitution — a law that is truly transformative. Everyone, it seems, simply wants a new bill.
Whether the new bill will live up to the transformational promise behind section 25 of the constitution perhaps does not matter to our political class. Their achievement, it seems, lies simply in having a new law — at all costs. In this new bill, process will be the enemy of progress.
✼ Ngcukaitobi is the author of Land Matters: South Africa’s
Failed Land Reforms and the Road Ahead (2021 Penguin). This is the second of two articles on the Expropriation Bill