NCOP backs Expropriation Bill despite constitutional concerns

The National Council of Provinces (NCOP) has endorsed the Expropriation Bill, with seven provinces voting in favour. The North West did not submit a mandate and the Western Cape voted against the Bill.

The Bill will be tabled again in the National Assembly (NA) for the adoption of amendments proposed by the NCOP before President Cyril Ramaphosa signs it into law.

However, the controversial Bill’s constitutionality has once again been raised by political parties, including the Democratic Alliance (DA) and Freedom Front Plus (FF+), and civil society groups.

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The current version was adopted in the National Assembly in 2020. It will allow for the expropriation of land and property in the interest of the public or public purpose.

It includes a provision to allow for expropriation with “nil compensation” for state or abandoned land. According to a director at Werksmans Attorneys, Refilwe Moitse, it was imperative constitutional amendments be considered.

“A constitutional amendment that clearly regulates and limits circumstances that may lead to instances where expropriation without compensation may be justified is one such a measure,” she said.

“This will also ameliorate the constitutional challenges which the Bill will be subject to, if assented to by the president, in an already litigious political landscape.”

‘Expropriation Bill risks weakening property rights’

Moitse said immense challenges lay in balancing the imperative for land reform with constitutional principles. The true realisation of land reform would be made possible only if the administrative impediments were resolved from the grassroots.

“The lack of a proper and uniform land reform administration and repository system unfortunately make the commitment to land reform as envisaged in the constitution an elusive concept,” she said.

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“By way of example, there is no uniform legislation that governs beneficiary selection of access to land for land distribution purposes.

“Furthermore, the lack of post-settlement support by the government to land claimants … undermines the very access and meaningful utilisation of land by the majority who need it the most.”

The South African Institute of Race Relations (IRR) said it was opposed to the Bill, citing it was a major hindrance to the country’s chances of economic recovery.

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“The Expropriation Bill risks weakening property rights, which are paramount for the rule of law,” said IRR campaign manager Makone Maja.

“The Bill allows the government to encroach on individual property rights by creating room for government to expropriate property without compensation in circumstances where the owner of the property loses control of the property, a scenario already rampant in the country, particularly in Gauteng and the Western Cape.”

She said the Bill would dampen South Africa’s already waning investment prospects.

“Investors tend to refrain from wilfully [investing] in a country that has granted government the ability to seize their property without duly compensating them.

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“The institute will be petitioning President Ramaphosa to not sign this Bill that will be corrosive to the public interest and public benefit – which is the exact opposite of its stated intentions,” Maja said.

The process began in 2008. The initial draft was withdrawn due to constitutional concerns. A revised Bill in 2015 was tabled before parliament and passed in 2016, but former president Jacob Zuma returned it to parliament for further review in 2017.

Efforts to amend section 25 of the constitution, including public hearings, to allow expropriation without compensation failed and the law was officially withdrawn. DA MP Sello Seitlholo said the Bill was marred by procedural and constitutional flaws.

He accused the ANC of trying to “put wool over faces” with the inclusion of the “nil compensation” clause.

“The DA has raised the alarm on this Bill many times before,” he said.

“The legislation and the legislative processes of the ANC are fundamentally flawed on the part of the constitution.

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“The clause in question is reverting to the very section that was disputed in 2021, and essentially what they’re doing is they want to second question our constitution – specifically its interpretation by our courts, which provides that property can only be expropriated subject to compensation,” Seitlholo said.

The party was also concerned about what it described as “free reign” given to the minister of public works to decide what constitutes public interest. FF+ leader Dr Pieter Groenewald strongly opposed the Bill in 2022, and maintained it would destroy SA’s ailing economy and reduce stability.

“This Bill is no different from expropriation without compensation and will jeopardise all property ownership,” said Groenewald.

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“This means no-one in South Africa will be able to claim sole ownership of his or her possessions, as government can dictatorially expropriate any possession at will.”

– thandon@citizen.co.za