Land ownership in South Africa a poisoned chalice?
ON THE face of it, land ownership in South Africa is a worthwhile investment. Typically, property is an appreciating asset which, in various ways, can generate income.
This “worthwhile” investment, however, must be carefully considered, taking into account
South Africa’s political, legal and social environment.
The call for “expropriation without compensation”, as well as a number of public comments made by politicians, is cause for concern for certain land owners. The impending expropriation bill is at the comment phase of the statutory process and it is unclear what will be included in the final version of the act that is ultimately passed into law.
It is, however, understood that vacant land will be the subject of expropriation without compensation. Suffice it to say there exists a degree of uncertainty regarding the future of land and property rights in South Africa.
The government has the unenviable task of endeavouring to balance the protection of our economy and private ownership rights with the need to protect the scores of people who do not have the means to compete in the private ownership sector and who are without the basic housing rights promised to them under section 25 of the constitution.
Many people are interpreting the phrase “expropriation without compensation” to mean that they are at liberty to take occupation of land that does not belong to them without resort to any legal process. The result of this misinterpretation is that there has been a significant increase in land invasion incidents, particularly in respect of agricultural land.
A land invasion is essentially the trespassing by people, en masse, on land that does not belong to them. In circumstances where a land invasion occurs, land owners are not permitted to take the law into their own hands and accordingly a number of them have been forced to approach the courts, at significant cost, for the necessary interdictory relief.
Private security is often also necessary in these circumstances – meaning further costs for the land owner.
Matters become more difficult for land owners when individuals erect structures in which they are able to reside on the land. Once this occurs, the land owner will probably be forced to follow the provisions of the Prevention of Illegal Evictions Act to remove those people from their land.
This entails a separate time-consuming application to court, again at significant expense.
This expense can often be avoided if legal assistance is sought at an early stage of the invasion.
It is likely, as matters remain unclear, that many people will continue to be let down by not being given adequate housing, and that these land invasion incidents will continue to occur.
Land owners need to recognise these risks and, should their land be the subject of any land invasion, act swiftly.
Goodison is a partner at Cox Yeats Attorneys practising in the corporate and natural resources law team. He specialises in general commercial law, commercial litigation, land claims and is experienced in mining law. He can be contacted on 031 536 8500 or via e-mail : jgoodison@coxyeats.co.za