This article draws on and adds to a Legalbrief Policy Watch article published on 12 October 2020

The revised Expropriation Bill tabled recently in Parliament includes a new clause among other things proposing the circumstances in which land expropriation for nil compensation could be justified in the public interest. These have been widely reported but are nevertheless listed below in paragraph 9.

2) What has not been adequately reported in the mainstream media is the Bill’s relevance to a draft Constitution 18th Amendment Bill about to be the focus of a final round of public consultations. These are expected to take place soon in the Northern Cape, Western Cape and Limpopo provinces. Once passed by Parliament, signed into law by the President, enacted and proclaimed, the amendment Bill will explicitly provide for expropriation with nil compensation for land reform purposes in circumstances to be specified in national legislation - the Expropriation Bill.

3) When the ad hoc committee responsible for preparing the Constitution 18th Amendment Bill met last December to discuss the release of a draft into the public domain for comment, the ANC position was that it should not specify the circumstances in which land expropriation for nil compensation might be justifiable. This position was in line with a recommendation from parliamentary legal adviser Charmaine van der Merwe, that – as framework legislation – the Constitution should leave the specifics to enabling national legislation.

4) The DA and the FF Plus expressed concern at the time that this could open the door to the further erosion of property rights. This was noting that legislation amending the Constitution requires the support of two-thirds of the National Assembly, whereas only 50% is required to support an amendment to national legislation.

5) As a media statement on the Expropriation Bill explains, once signed into law and proclaimed it will replace the 1975 Expropriation Act. The statement also unpacks the process followed in developing the legislation, confirming that it ‘retains unchanged the substantive content of the earlier Bill’.

6) Tabled in 2015, its ‘D’ version was eventually withdrawn in 2018, having been passed by Parliament, sent to former President Jacob Zuma for signature and returned to the National Assembly for a more robust public participation process.

7) That process was overtaken by events following a resolution taken at the ANC’s 54th national conference, in terms of which (according to the conference report) it was agreed that the expropriation of land without compensation ‘should be among the key mechanisms available to government to give effect to land reform and redistribution’. However, in ‘determining the mechanisms of implementation’, it was resolved that government should ‘ensure’ that future investment in the economy is not ‘undermined’ and that no ‘damage’ is inflicted upon ‘agricultural production and food security’ or any other economic sector.

8) Against that backdrop, on 4 December 2018, according to a media statement released that day, the National Assembly ‘agreed that section 25 of the Constitution be amended to make (the) expropriation of land without compensation more explicit’. That process is now reaching its final stages.

9) Noting that the Expropriation Bill deals with ‘instances where it may be just and equitable to pay nil compensation for expropriation of property in the public interest’, the statement on the Expropriation Bill reminds readers that ‘the Constitution provides that compensation for expropriation must be “just and equitable” having regard to all relevant circumstances’. According to the proposed the new clause, these circumstances would include but would not be limited to:

  • ‘where the land is not being used and the owner’s main purpose is not to develop … or use it to generate income, but to benefit from (the) appreciation of its market value’;

  • where land being held by ‘an organ of state’ is not being used for that entity’s core functions and is not ‘reasonably likely’ to be;

  • ‘where an owner has abandoned the land by failing to exercise control over it’;

  • ‘where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in … (its) acquisition and beneficial capital improvement’; and

  • ‘when the nature or condition of the property poses a health, safety or physical risk to persons or other property’.

10) The Bill ‘does not prescribe that nil compensation will be paid in these circumstances’ but ‘provides that the amount of compensation will be determined by the courts’. It is envisaged that, should a court or arbitrator see fit to determine the amount of compensation in terms of section 23 of the 1996 Land Reform (Labour Tenants) Act (owner’s right to compensation), having regard to all relevant circumstances nil compensation may be deemed just and equitable.

11) As is the case with all Constitution section 76 legislation with national and provincial implications, the Expropriation Bill will be subjected to a public participation process hosted by the National Assembly’s Public Works & Infrastructure Committee; then by the NCOP’s Transport, Public Service & Administration and Public Works & Infrastructure Committee; then by each provincial legislature. Committee deliberations following each set of public hearings will be informed by the contents of written submissions and oral representations on the Bill and could result in amendments. The Bill will also be considered by the National House of Traditional Leaders. This is a lengthy, time-consuming process and is unpacked in an article by the Parliamentary Monitoring Group.

12) The draft Constitution 18th Amendment Bill is a committee Bill and is expected to be finalised and tabled in the National Assembly before the end of this year. As a Constitution section 74 Bill, it must be debated and passed by both Houses of Parliament.

13) Once passed by Parliament, each Bill will be sent to the President for signature and proclamation.

14) Proclamation is not necessarily immediate. In the past, lobby groups have used the possibility of a constitutional challenge to persuade the President at the time to return a Bill to Parliament.