Financial Mail - Investors Monthly
Grounds for contention
Strong views are expressed as the finalisation of land expropriation legislation draws near, writes Donwald Pressly
The draft expropriation without compensation bill is innocuous and simply intended to fast-track much overdue land justice, post-apartheid redress and reform. It is also the governing party’s view that it is not a bill to be feared and that valid concerns raised by the public will be assessed and, where sensible, that grievances will be redressed.
The draft bill’s opponents describe it as a thicket of inconsistencies and legal lacunae — which will lead to an endless swamp of litigation — and a watering down of the separation of powers and court oversight. This tends to be the view shared by the country’s business lobbies, all of whom, however, say expropriation is necessary but not under the wide ambit of the draft bill.
Public hearings and submissions from the minority constituencies signal there is an undercurrent of fear, in particular, among the business and agricultural sectors that it is all about land — and asset — confiscation or, in layman’s terms, “land grabbling” by the state.
Business lobby group Sakeliga CEO Piet le Roux believes the draft bill is simply anticonstitutional: “The current bill is an attempt to insert into the constitution a provision that is at odds with the principles of constitutionalism itself. Should confiscational powers for the state, as contemplated, be inserted into the constitution it will render the document unconstitutional and illegitimate in so far as, and so long as, that amendment taints it.”
ANC public works committee chair Noli Ntobongwana, is emphatic: “There is no place [in the draft bill where] I can identify the owner [of land] as white or black or whatever.” The race of an owner is “not targeted”, she says — though she acknowledges that certain land — identified by a municipality, the agriculture department or the public works department — that has not been used for a period of 25 years or more could get “nil” compensation from expropriation.
Public works & infrastructure minister Patricia de Lille says: “The land reform programme is not aimed at any group of people’s land, especially not based on race. The constitution and the [draft] bill are very clear about the reasons for expropriation [as one mechanism of land reform]... land would only be expropriated for public purposes or in the public interest.”
De Lille, who is also Good party leader and the only nonANC minister, says: “Enemies of land reform who are tone deaf whiners want us to forget that for centuries people of colour have been denied the right to own property. The constitution obliges the state to take ‘reasonable’ legislative and other measures to enable citizens to gain access to land.”
She says the land audit of 2013 showed that private land — outside of the former homelands — was still about 70% white owned.
She points out that the land audit found 79% of SA land was in private ownership and 14% was owned by the state; the ownership of 7% was not stated. Individuals, companies and trusts had combined ownership of 90% of total land audited. Whites owned 72%, coloureds 15%, Indians 5% and black people 4%.
The Expropriation Bill, No 23 of December 10 2020, which provides for nil compensation, is now the subject of roving public hearings by the national assembly public works & infrastructure committee. The measure is expected to come before parliament at the end of the year.
The Banking Association SA has already warned about the possible impact on banks if no, or limited, compensation is paid on mortgaged properties, robbing owners of the leverage of the property as collateral. It told committee members in March: “The possibility of expropriation at below market value or without compensation has already started discouraging essential investment by farmers into their property, increasing food insecurity as well as investment into the general economy. It must be made clear as soon as possible what land may be subject to
“There is no place [in the draft bill where] I can identify the owner [of land] as white or black or whatever