EXPROPRIATION BILL (REVISED)
THE PARLIAMENTARY PROCESS FROM NOVEMBER 2021
(brief summaries in reverse date order)
Detailed Legalbrief Policy Watch reports on the following processes can be accessed by Legalbrief Todaysubscribers here:
the revised Expropriation Bill (pre-November 2021), and
the development of amendments to section 25 of the Constitution to provide expressly for expropriation with nil compensation as a land reform mechanism in circumstances deemed just and equitable.
PLEASE NOTE: A Bill amending the Constitution requires the support of two-thirds of the National Assembly to be passed and sent to the NCOP. Not having met this requirement, the Constitution 18th Amendment Bill was rejected in December 2021.
7 December 2023
The NCOP Committee on Transport, Public Service & Administration,
and Public Works & Infrastructure has issued a media statement announcing its decision to allow the Department of Public Works & Infrastructure time for ‘further consultations’ on the Bill’s clause 20, which ‘deals with matters around urgent expropriation’. Given that Parliament could rise as early as the end of March 2024 for the elections, the committee will be under considerable pressure to complete its work on the Bill. Any changes made will need to be sent to the provincial legislatures, which will then be required to prepare their final mandates. Should at least five provinces agree to the revised Bill, it will then need to be sent to the National Assembly for concurrence.
4 December 2023
Time has been provisionally set aside at the end of the NCOP plenary scheduled for 7 December 2023 to consider a yet-to-be-tabled report on the Bill from the NCOP Committee on Transport, Public Service & Administration, and Public Works & Infrastructure. This is according to the latest updated programme for the remainder of Parliament's fourth term. However, a reference to provincial negotiating mandates in the most recent parliamentary meetings schedule tends to suggest that the Bill's finalisation will be put on hold until next year. A Parliamentary Monitoring Group report on the committee's 24 November 2023 meeting points to concerns about some changes proposed by the provinces. This means that a draft revised Bill incorporating any further amendments the committee deems appropriate will need to be adopted and sent to the provincial legislatures for consideration during the process of preparing and submitting their final mandates. Given the controversy surrounding this Bill, the provinces are unlikely to rush this final step.
16 November 2023
The NCOP Committee is in the process of considering all input received during its broader public participation process. Ongoing deliberations will be informed by a document summarising perspectives on stakeholder submissions shared during a briefing from the Department of Public Works & Infrastructure in October 2023.
27 July 2023
According to a parliamentary website page on the status of section 76 Bills now before the NCOP, public hearings have been conducted by all provincial legislatures except KwaZulu-Natal's. Having been granted more time to attend to its own public participation process on the Bill, the Eastern Cape Legislature began holding hearings on 12 July 2023 in Matatiele.
12 April 2023
On 4 April 2023, the Western Cape Legislature's Infrastructure Committee was briefed on the revised Expropriation Bill in anticipation of planning a public hearings programme for the province. Documents circulated in advance of that meeting included an ex parte memorandum prepared by Advocate Uday Naidoo for the Department of Public Works & Infrastructure.
It is not clear if the NCOP Committee on Transport, Public Service & Administration and Public Works & Infrastructure intends holding hearings in Parliament. The committee has not met to discuss the Bill since its 22 February 2023 workshop. According to a Parliamentary Monitoring Group report on that meeting, members were informed that provincial legislature committee briefings were scheduled to take place from 15 March 2023.
24 February 2023
On 22 February, the NCOP Committee on Transport, Public Service & Administration and Public Works & Infrastructure held a workshop on the Bill, informed by a presentation from a UCT-based 'expert group in expropriation law'. Also attended by members of some provincial legislature committees responsible for conducting hearings in their respective areas when the time comes, as is normally the case the workshop included an opportunity for questions from committee members.
Numerous issues were raised, most of which related to the process of determining when nil compensation for expropriated land might be deemed justifiable. Among other things, they drew attention to stark differences in party-political positions on the matter.
Unfortunately, Parliament's video of the workshop is incomplete - and the sound quality of a Parliamentary Monitoring Group (PMG) clip of the first leg of its proceedings is poor. However, PMG's audio clip of the workshop's second leg is much clearer and includes input from Public Works & Infrastructure Minister Patricia de Lille, along with Advocate Uday Naidoo, who works with Senior Counsel Geoff Budlender. When the Bill was being processed by the National Assembly's Public Works & Infrastructure Committee, the department sought Budlender's opinion on several matters of concern at the time.
You are encouraged to listen to the clip, which provides useful insight into differing perceptions of the Bill. It also draws attention to recommendations made by Budlender and Naidoo during the National Assembly committee process and still requiring attention.
6 February 2023
Nearly five months after the Bill's 'B' version was passed by the National Assembly and sent to the NCOP for concurrence, the committee now responsible for the final leg of the Bill's passage through Parliament has issued a notice calling for written submissions. As a Constitution section 76 piece of legislation, the Bill is also expected to be the focus of public hearings organised by each provincial legislature.
10 January 2023
Among many other things, this year's 8 January ANC anniversary statement urged Parliament's NCOP to finalise 'this important legislation' during 2023. The Bill's 'B' version was passed by the National Assembly in September 2022, since when there have been no further developments.
As a Constitution section 76 piece of legislation with obvious implications for the provinces, the Bill will be the focus of a robust public participation process involving hearings in each provincial legislature.
While the official version of the ANC's anniversary statement refers to the Bill in the context of a 54th national conference resolution on land expropriation without compensation, when delivering it re-elected ANC president Cyril Ramaphosa added a caveat: that the measure would be used to accelerate land reform 'where appropriate' (live broadcast,1:33:02 onwards). According to Ramaphosa, 'the passage of the Expropriation Bill during the course of this year will, amongst other things, add to the measures that we need to take to give effect to our 54th national conference resolution to enable expropriation of land without compensation where appropriate. That is what we will be seeking to proceed with because there is still land hunger in our country'.
His comments on a yet-to-be-tabled 'Land Redistribution Bill' do not feature in the official version of the statement. In delivering it Ramaphosa nevertheless urged 'public representatives' to 'accelerate' whatever processes are possibly already under way that will eventually 'enable the state to acquire agricultural land to distribute to our previously disadvantaged people'.
In December 2021, the ANC's parliamentary caucus issued a media statement on the National Assembly's failure to pass a Constitution 18th Amendment Bill seeking to insert a clause in section 25 expressly providing for land expropriation with nil compensation when deemed just and equitable. At the time, as one of several measures intended to accelerate land reform, a 'Land Redistribution Bill' was expected to be tabled in Parliament during 2022.
Presumably, it will be released in draft form for public comment ...
29 September 2022
The revised Expropriation Bill's 'B' version has been passed by the National Assembly and sent to the NCOP for concurrence. As a section 76 piece of legislation with implications for the provinces, it will be subjected to a robust public participation process in each provincial legislature before the NCOP Committee on Transport, Public Service & Administration, and Public Works & Infrastructure makes recommendations to the House - informed by provincial mandates. For the Bill to be passed by the NCOP, at least five provincial legislatures must vote in its favour. However, given all the controversy surrounding some of its provisions - and noting that, in the National Assembly yesterday, it was rejected by the DA, EFF, IFP, FF Plus and ACDP - it is quite possible that some provinces will recommend amendments underpinned by input during their respective public hearings. So, the parliamentary process is far from over. It may even entail mediation if the NCOP recommends changes with which the National Assembly does not agree.
The Bill's purpose is unpacked in a speech delivered by Public Works & Infrastructure Minister Patricia de Lille's during the Bill's second reading.
21 September 2022
The National Assembly's Public Works & Infrastructure Committee adopted its report on the revised Expropriation Bill's 'B' version yesterday (20 September 2022), when both the Bill and the report were tabled in the House for a second reading. The report (which can be found on page four of parliamentary papers circulated that evening) includes input from the DA on clauses either rejected by the party or on which it believes improvements could have been made. Reasons for the IFP's rejection of the Bill are provided as a minority view on pages 43 and 44 of the report. It is not clear when the House will consider the Bill, which is on today's order paper under further business - along with the Land Court Bill, which was processed by the National Assembly's Justice & Correctional Services Committee. That committee's report on the Bill can be found on page forty-six of the same
parliamentary papers. Changes made to the version tabled last year are reflected in an 'A' list agreed by the committee at its meeting on 14 September. Once publicly available, the Bill's 'B' version is therefore expected to include:
a new Chapter 5 dealing with appeals against a judgment or court order
a replacement schedule of legislation to be repealed by the Bill once enacted
provisions on the appointment of mediators and the mediation process, and
matters on which the Minister may make regulations.
15 September 2022
A 'B' version of the revised Expropriation Bill, 2020, was adopted by the National Assembly's Public Works & Infrastructure Committee on 7 September 2022 by majority vote - without the support of any opposition parties represented in the committee. Their views will be reflected in a committee report on the Bill, which will accompany it to the House for a second reading. Despite plans to adopt the report on 14 September, the committee discussed its contents at length - noting the need for several changes. The intention is to meet on Tuesday 20 September to adopt the revised report. However, this date has yet to be confirmed in the official parliamentary meetings schedule.
29 August 2022
According to the latest parliamentary meetings schedule, the Bill's adoption by the National Assembly's Public Works & Infrastructure Committee has been postponed to 14 September.
23 August 2022
Members of the National Assembly's Public Works & Infrastructure Committee were briefed this morning on proposed changes to the revised Expropriation Bill. There having been no discussion on what is envisaged or any objections raised, these changes will now be incorporated in a 'B' version of the Bill, which is expected to be adopted by the committee when it next meets. It will then be tabled in the House for a second reading. The changes proposed are reflected in an 'A' list, the development of which was informed by committee deliberations following last year's public hearings, oral representations from stakeholders and all written submissions received when the Bill was opened for public comment. The adoption of the Bill's 'B' version will be preceded by a clause-by-clause reading of its contents - at which point opposition party representatives in the committee opposed to the Bill or any of its clauses will express party positions on the issues concerned. Any dissenting views will form part of a
committee report to be tabled in the House with the Bill's 'B' version.
Please note that a full understanding of what is being proposed and how it will affect property owners requires a line-by-line comparison by a legal expert.
At this stage, the committee is expected to meet on 14 September to adopt the Bill's 'B' version.
16 August 2022
According to the latest parliamentary meetings list, 'A' list deliberations will now take place over two days, beginning on 23 August and continuing a week later in anticipation of adopting an amended Bill on 14 September reflecting what was agreed. At this stage, no 'A' list publicly available.
30 June 2022
There has been no further progress. According to the most recent parliamentary committee meetings schedule, the National Assembly's Public Works & Infrastructure Committee will meet on 17 August (after the winter recess) to consider a revised 'A' list, briefed by representatives of the Office of the State Law Adviser and parliamentary legal services. The 'cleaned up' list is expected to include options for resolving areas of disagreement (Parliamentary Monitoring Group).
1 June 2022
The National Assembly's Public Works & Infrastructure Committee met this morning to consider amendments to the Bill proposed during committee deliberations on its contents - in some instances informed by submissions received during the public participation process. These were presented in what has come to be known as an 'A' list. According to parliamentary legal adviser Phumelele Ngema, the 'A' list step is taken in terms of the National Assembly Rules, sub-rules 286(4) and (6). This notwithstanding, the rules do not expressly refer to an 'A' list.
Committee discussions on the Bll's 'A' list ended with recommendations for a new clause 23 to be entitled, 'Repurchase of property' - and dealing with circumstances in which an expropriated owner may reacquire a property not being used as originally anticipated and/or no longer necessary for the purpose envisaged.
Work on the 'A' list is expected to resume next Tuesday.
19 May 2022
On 1 June, the National Assembly's Public Works & Infrastructure Committee is scheduled to consider an 'A' list on the amendments now being considered. This means that the committee could be about to complete its work on the Bill, which could therefore be tabled in the House for a second reading before the winter recess begins on 20 June. The committee has not met to consider the Bill since 19 April.
26 April 2022
Ex parte advice from Advocates Geoff Budlender and Uday Naidoo presented to the National
Assembly's Public Works & Infrastructure Committee on 30 March and 19 April (with a fortnight's constituency period in between) has draw attention to several shortcomings in the Bill. It was sought by the Department of Public Works & Infrastructure with the aim of responding to queries raised by committee members during a first round of clause-by-clause deliberations. Among other things, the advice (a supplementary version of which is now available) includes recommendations that, if adopted, could go some way toward addressing concerns about the implications for lenders of expropriating mortgaged property for nil compensation.
When Advocate Naidoo presented the original version of this advice on 30 March, he mentioned that there were other aspects of the Bill on which he and Advocate Budlender would welcome an opportunity to comment. Committee chair Nolitha Ntobongwana than asked him to prepare supplementary advice on those issues - and the extra time provided by the constituency break facilitated that process.
22 March 2022 (as posted on LinkedIn)
During this morning’s meeting of the National Assembly’s Public Works & Infrastructure Committee, clause 12 was discussed at length. It proposes circumstances in which it might be deemed just, equitable and in the public interest to expropriate landed property with nil compensation.
According to the DA’s Samantha Graham-Mare, her party’s position is that the entire clause is unconstitutional and should be removed. This is given that, in the DA’s view, it builds on an amendment to section 25 of the Constitution (property rights) proposed in the Constitution 18th Amendment Bill, which the House rejected in December.
The Constitution 18th Amendment Bill sought to provide explicitly for land expropriation with nil compensation for land reform purposes in circumstances deemed just and equitable.
The Bill was rejected by the House because it did not receive the support of two-thirds of its members. The ANC holds 57.5% of National Assembly seats and required the support of EFF members to pass the Bill - which the EFF withheld, being of the view that the amended section 25 proposed in the Bill did not reflect the party’s February 2018 motion, which was adopted by the House at the time.
Throughout the entire Constitution 18th Amendment Bill parliamentary process, the DA’s position was that section 25 of the Constitution already provides implicitly for land expropriation with nil compensation.
During this morning’s meeting, the Office of the State Law Adviser’s Shaun van Breda attempted to allay concerns about the Expropriation Bill’s implications for banks in the context of mortgaged landed property. These concerns are apparently unfounded given provisions in the Bill on the role of the courts; and provisions in the Constitution and the Bill mitigating against the arbitrary deprivation of property.
23 February 2022
'The Constitution requires an Act to ... put right what went wrong' – and 'it is clear from the people and government what is expected'. National Assembly Public Works & Infrastructure Committee chair Nolitha Ntobongwana and parliamentary legal adviser Phumelela Ngema (respectively) made these remarks this morning during a meeting at which members were briefed on the merits or otherwise of concerns expressed about the constitutionality of certain provisions in the revised Expropriation Bill. The concerns were repeatedly articulated during the first leg of last year's public participation process, which included nationwide and parliamentary hearings.
In anticipation of briefing the committee on its response to the issues raised, the Department of Public Works & Infrastructure sought ex parte advice from Advocate Geoff Budlender, whose presentation on 24 November was cut short – mainly because the department and committee secretariat had not followed the necessary procedures, or so it seemed at the time. Nearly three months later to the day, Budlender's presentation confirmed, among other things, that 'the Constitution and the Bill do not provide for expropriation “without” compensation' but instead 'provide for just and equitable compensation, which in some cases will be nil'. His input was followed by a presentation from Ngema and another from the Office of the State Law Adviser's Shaun van Breda.
The only committee member to comment on this morning's presentations was the DA's Samantha Graham-Maré, supported by her colleague Madeleine Hicklin. Graham-Maré's input focused on the powers of the court; who would be expected to meet the costs entailed in any 'legal battle' that might ensue, following a land owner's receipt of an expropriation notice; and the contents of a socio-economic impact assessment that, in her view, lacks input on the Bill's implications for the broader economy and investment. However, Graham-Maré's reference to the value of all three presentations in 'taking the emotion out of the Bill' and adding a 'more balanced perspective' to the process was not endorsed by Ntobongwana. She may have interpreted these remarks as a criticism of the way the Bill has been handled by the committee thus far. Ntobongwana nevertheless agreed that the presentations had 'clarified a lot of things about expropriation and property'.
Clause-by-clause deliberations on the Bill are scheduled to begin on 9 March.
22 December 2021
The National Assembly intends prioritising this Bill next year, according to Parliament's media statement on its work during 2021. This is noting that, among other things, the Bill's revised version provides for 'certain instances where expropriation with nil compensation may be done in the public interest'.
7 December 2021
Although there was not sufficient support from National Assembly members to pass the Constitution 18th Amendment Bill, during Tuesday's debate Justice & Correctional Service Minster Ronald Lamola referred to several pieces of proposed new legislation that will be used to give practical effect to ANC policy on accelerated land reform. Those yet to be tabled include a Land Restoration Bill. According to the party's parliamentary caucus, a ‘new way’ will be found to use land expropriation with no compensation as an instrument of land reform, using existing provisions in the Constitution. Meanwhile, Parliament will proceed next year with its work on the revised Expropriation Bill.
27 November 2021
The National Assembly is scheduled to debate the Constitution 18th Amendment Bill on Tuesday 7 December. Seeking to amend the section 25 of the Constitution (property rights) to expressly provide for expropriation with nil compensation when deemed just, equitable and in the public interest for land reform purposes, the Bill will require the support of two-thirds of the House to be passed.
25 November 2021
The Department of Public Works & Infrastructure has received ex parte advice from Advocates Geoff Budlender and Uday Naidoo on whether to include a definition of 'property' in the Expropriation Bill. This advice was circulated during yesterday's meeting of the National Assembly's Public Works & Infrastructure Committee and underscores the pitfalls of attempting a comprehensive definition of the term.
As a result, the committee is unlikely to heed widespread calls in written submission on the Bill for property to be defined. They appear to have been made in the context of concerns about the negative implications of expropriation with nil compensation for private property ownership and economic development. A Constitution 18th Amendment Bill providing the framework for land expropriation with nil compensation is waiting to be debated in the House.
17 November 2021
Having been briefed on input during the public participation process, the National Assembly's Public Works & Infrastructure Committee has finally come to terms with the magnitude of its task in attempting to ensure the revised Bill passes constitutional muster. Deliberations will begin in earnest next year.
There are many misconceptions about its purpose in the context of the Constitution 18th Amendment Bill, which is now waiting to be debated in the House. Concerns about the Expropriation Bill's negative implications for private property ownership and the broader economy appear to have underpinned most written submissions opposing it.
By contrast, at grassroots level the Bill is widely perceived to be pivotal to facilitating access to land in the context of redress for past injustices.
Key issues raised in written and oral submissions that may result in amendments include:
redefining the terms 'property' and 'expropriation'
clarifying what is meant by 'nil compensation', and
dealing with the Bill's perceived implications for water and mineral rights.
On Wednesday 24 November, the committee is scheduled to receive:
a response from the Department of Public Works & Infrastructure to input during the public participation process
recommendations from parliamentary legal services on the way forward, and
a view from the Office of the State Law Adviser.
22 September 2021
'Tip-toeing through the South African legal minefield of land expropriation
without compensation' (Daily Maverick)
13 September 2021
'Constitution 18th Amendment Bill: Is Parliament putting the cart before the horse during expropriation without compensation process?' (Daily Maverick)
27 January 2020
'EWC: There may be more to the parliamentary process than meets the eye' (Daily Maverick)