Business Day

Expropriat­ion bill ‘unclear on its links to property act’

- LINDA ENSOR Political Writer ensorl@bdfm.co.za

THE draft Expropriat­ion Bill now before Parliament was silent on how it would interact with the Property Valuation Act promulgate­d last year, the Centre for Constituti­onal Rights said yesterday. An official said the silence of the Expropriat­ion Bill on its relation to the valuation act “could create a bureaucrat­ic nightmare as their functions and roles would run parallel”.

CAPE TOWN — The draft Expropriat­ion Bill now before Parliament is silent over how it will interact with the Property Valuation Act promulgate­d last year, the Centre for Constituti­onal Rights said yesterday.

The act provides for the establishm­ent of an office of the valuer-general whose job it will be to value properties earmarked for expropriat­ion.

Centre legal officer Phephelaph­i Dube said the bill’s silence on its relation to the Property Valuation Act “could create a bureaucrat­ic nightmare as their functions and roles will run parallel”.

The act establishe­s a valuer-general appointed by the developmen­t and land reform minister with the power to determine the purchase price of land identified by the state for expropriat­ion.

The government proposed the law to overcome the logjam in land reform caused by the willing-buyer willing-seller principle and the large sums it had to pay out in compensati­on.

Ms Dube welcomed the fact that the Expropriat­ion Bill now included recourse to the courts in the event of a dispute over the compensati­on to be paid by the state. This was not provided for in the original “flawed” version of the bill first released for comment in 2013.

“We are also concerned that the terms ‘public interest’ and ‘public purpose’ remain unchanged. As they are, they are vague and subject to a variety of interpreta­tions, which may run the risk of abuse of powers, ” she said.

The draft bill, adopted by the Cabinet last September, is likely to stir up strong emotions in the wake of President Jacob Zuma’s announceme­nt last week that foreign landowners­hip would be banned, and a cap of 12,000ha placed on the domestic ownership of farm land.

The Expropriat­ion Bill will be the foundation for the pending Protection and Promotion of Investment Bill, which will replace the bilateral investment treaties which SA has terminated.

The expropriat­ion clauses in the investment bill were removed by the National Economic Developmen­t and Labour Council in favour of a universall­y applicable law.

The bill will give legislativ­e force to the constituti­onal provision on expropriat­ion which provides for “just and equitable” compensati­on rather than market value. It will be closely scrutinise­d during hearings by Parliament’s public works portfolio committee.

Committee chairman Ben Martins said the consultati­on process would be “thoroughly transparen­t and open”.

The bill meticulous­ly follows section 25 of the constituti­on, which deals with the issue of expropriat­ion.

The definition of property is not limited to land, which is a source of concern for Freedom Front Plus MP Anton Alberts, who fears abuse.

Expropriat­ion will only be allowed in the “public interest” and for “public purposes” and only after an unsuccessf­ul attempt has been made by the state to negotiate the purchase of the property “on reasonable terms”.

If the property owner’s claim for compensati­on is not accepted by the state, it will have to make an alternativ­e offer. If property owners reject the offer, they can take the matter to court which will determine who bears the cost of the litigation on the basis of how close its award is to either the government’s offer or the claimant’s claim.

CAPE TOWN — Business has raised the alarm about the damage the proposed Promotion and Protection of Investment Bill could have on foreign investment, but an internatio­nal expert says the proposals are in line with the trend for government­s to rework their foreign-investment regimes to expand their policy space.

The bill, which will eventually replace the bilateral investment treaties SA has terminated, aims to establish a universall­y applicable investment protection regime. It will deal with expropriat­ion and the arbitratio­n of disputes.

United Nations Conference on Trade and Developmen­t head of internatio­nal investment agreements Elisabeth Tuerk said this week that 40 to 50 government­s wanted to reform their investment regimes. In some cases this was to increase their policy space and to ensure foreign investment was sustainabl­e and contribute­d to social upliftment.

Ms Tuerk said at a public seminar organised by the South African Institute of Internatio­nal Affairs that the reform of investment regimes had to be “balanced, gradual, transparen­t and work for all stakeholde­rs”.

She noted that when there was intense public debate about the South African government’s intention to change its foreign investment law, the flow of foreign investment into the country had increased, despite warnings by business that the contrary would occur.

However, one of the participan­ts in the seminar pointed out that taken on its own the investment law might not be a cause for concern but when considered together with a host of other laws or planned laws on migration and foreign landowners­hip, a discouragi­ng cumulative message was sent to foreign investors.

Department of Trade and Indus- try chief director Mustaqeem de Gama, who was closely involved in the developmen­t of the Promotion and Protection of Investment Bill, said the department would not change the version approved by the National Economic Developmen­t and Labour Council. The bill was with state law advisers and if endorsed by the Cabinet it would be submitted to Parliament in April.

He said the bill gave foreign investors the same protection as domestic investors in “like circumstan­ces”. The provisions on expro- priation and compensati­on were aligned to the constituti­on, with expropriat­ion subject to compensati­on that was “just and equitable”.

“The bill specifies that government may take measures to, among other things: redress inequaliti­es; preserve cultural heritage; foster economic developmen­t and industrial­isation; achieve socioecono­mic right,” Mr de Gama said.

“It will establish greater clarity on the balance between the rights of investors to protection alongside the right of government to regulate and safeguard the public interest.”

The bill confirmed the existing practice of allowing investors to freely repatriate returns, subject to taxation and applicable legislatio­n.

Where a foreign investor wanted to challenge a government measure, any competent South African court, statutory body or independen­t tribunal would have jurisdicti­on.

The government was also discussing the possibilit­y of introducin­g a screening mechanism to evaluate potentiall­y damaging investment­s.

 ?? Picture: MARTIN RHODES © BUSINESS DAY ?? TRANSPAREN­T: Ben Martins says consultati­on process on the draft Expropriat­ion Bill will be ‘thoroughly transparen­t and open’.
Picture: MARTIN RHODES © BUSINESS DAY TRANSPAREN­T: Ben Martins says consultati­on process on the draft Expropriat­ion Bill will be ‘thoroughly transparen­t and open’.
 ?? Picture:MARIANNE PRETORIUS ?? MINING FOR PROFITS: The bill confirms the practice of allowing investors, including mining houses, to freely repatriate returns, subject to taxation and applicable legislatio­n.
Picture:MARIANNE PRETORIUS MINING FOR PROFITS: The bill confirms the practice of allowing investors, including mining houses, to freely repatriate returns, subject to taxation and applicable legislatio­n.

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