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LAND EXPROPRIATION: IN THE INTERESTS OF TRANSPARENCY ...


With the permission of Juta Law (Legalbrief Today's publisher and Policy Watch copyright holder) the following summaries are made available in the hope that they will dispel any misinformation being circulated on Twitter about the revised Expropriation Bill. On Wednesday and Thursday 24 and 25 March, members of the National Assembly's Public Works & Infrastructure Committee will hear oral evidence from all stakeholders who requested an opportunity to appear before the committee to elaborate on their written submissions. These will be held virtually and will probably be live streamed.


Although the Bill was opened in December 2020 for public comment, the notice was issued prematurely. This was never officially stated. However, in February the deadline for input was extended.


The summaries below are provided in reverse date order, with the most recent appearing first. Please be aware that the latest summary will only be posted here several days after appearing in Legalbrief Today, allowing subscribers to benefit from receiving the information within 24 hours of each committee meeting. The Parliamentary Monitoring Group (PMG) usually provides reports of each meeting within five-to-seven days, depending on its complexity. Audio clips of proceedings are generally posted on the PMG website within 24 hours.


The revised Expropriation Bill gives practical effect to provisions in the upcoming Constitution 18th Amendment Bill, which is still being finalised. The entire parliamentary process followed in developing this Bill is summarised here.


The ad hoc committee responsible for preparing the Constitution 18th Amendment Bill was recently given more time to complete its work. It is now required to table the Bill in the National Assembly by 31 May. A final round of oral submissions on the draft Bill was expected to take place between 21 and 25 March but has since been postponed - possibly to avoid clashing with hearings on the revised Expropriation Bill.


16 March 2021

Oral submissions on the revised Expropriation Bill are scheduled to take place on 24 and 25 March, according to the latest parliamentary committee meetings programme, notes Pam Saxby. They will be held virtually by the National Assembly’s Public Works & Infrastructure Committee, which was briefed on the Bill in November 2020. Since then, the deadline for written submissions has been extended and concerns raised about a parliamentary media services decision not to provide the additional funding needed to facilitate input on the Bill from stakeholders without Internet access. It is not clear from Parliamentary Monitoring Group records of recent meetings if committee chair Nolitha Ntobongwana ever provided members with feedback on the funding issue – and the extended deadline expired on 28 February.

The revised Bill ‘retains unchanged’ the ‘substantive content’ of a version returned to Parliament in 2018 by former President Jacob Zuma for a more robust public participation process. This is according to a media statement issued by the inter-ministerial committee on land reform shortly before the Bill was tabled in October 2020. Sub-clause 12(3) proposes a list of circumstances in which ‘it may be just and equitable to pay nil compensation’ for the expropriation of land ‘in the public interest’ for land reform purposes. These are ‘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’.

Last week, during a question-and-answer session in the NCOP, Deputy President David Mabuza described expropriation without compensation as ‘necessary’ in the context of advancing land reform objectives, promoting restorative justice and solidifying social cohesion. Assuring the House that it will be pursued ‘with a sense of urgency’, the Deputy President said the purpose of the ‘unfolding parliamentary process’ is to ‘accelerate and give effect to land and spatial justice while ensuring that … constitutional injunctions are respected’. This was noting that the ‘cost of land reform’ as it was previously undertaken has become ‘unaffordable and unsustainable in the context of fiscal constraints’. Mabuza also alluded to concerns about mounting frustration over the time taken to finalise land restitution claims.


5 February 2021

Parliamentary and provincial public hearings on the revised Expropriation Bill will not take place until SA moves back to Covid-19 State of Disaster lockdown level one. This was agreed during Wednesday’s meeting of the National Assembly Committee on Public Works & Infrastructure, when it was also decided to extend the deadline for written submissions on the Bill to 28 February, reports Pam Saxby. This followed a presentation among other things analysing the source of public input received thus far; the communication mode used in making submissions; and the gist of views expressed. Unfortunately, despite having allowed members of the public 60 days to make written representations in the context of the festive season break, the committee’s call for input was not advertised on social media and therefore may not have come to the attention of younger South Africans. This may have adversely affected the process – hence the committee’s decision to extend the deadline. However, at the time of writing a statement communicating the new date had yet to be published on Parliament’s website.

According to Wednesday’s presentation document, most of the approximately 41 000 responses received at the time were submitted by e-mail; are aligned with the views of one of four organisations/lobby groups, as published on their websites; and oppose the Bill for various reasons. However, in unpacking statistics included in the presentation, the committee’s content adviser made a point of emphasising the important role played by these organisations in facilitating the democratic public consultation process – in some cases by making submission forms electronically available to people who might otherwise have found it difficult to express their views. A similar approach is now being used by Parliament in making a form available via WhatsApp.

Against that backdrop (and given the committee’s constitutional obligation to ensure that all South Africans have an opportunity to participate in the process of finetuning the Bill), moves already afoot to ‘maximise’ the advertising campaign and upscale media attention ‘substantially’ will draw on the expertise of the parliamentary media unit in developing a comprehensive plan; and on that of the public education unit in identifying ways of raising awareness of the Bill’s purpose and relevance. The committee section will be approached for additional funding.

The committee’s content adviser also used the opportunity to remind members that the Bill seeks to provide for ‘a uniform administrative system to expropriate in the common and public good’. This was noting that submissions received thus far have tended to focus on clauses dealing with expropriation for nil compensation – possibly blurring the line between the Bill and one being developed separately to amend section 25 of the Constitution. In that regard, members were assured that the revised Expropriation Bill does not seek to ‘diminish and threaten property rights’, as one organisation’s submission is understood to have claimed.

According to the committee content adviser, the process of finalising the Bill will take account of every submission, regardless of the views expressed, how they are communicated and by whom. This was emphatically stated several times during Wednesday’s meeting and by committee chair Nolitha Ntobongwana – who nevertheless made it clear that to interpret submissions received thus far as representing the views of all South Africans would mean ‘not being honest to ourselves’. At no point did anyone dismiss the relevance of these submissions – at least according to a Parliamentary Monitoring Group audio recording of the proceedings concerned.

The parliamentary public hearings process will give every organisation and individual wishing to elaborate on their written submissions an opportunity to do so. The provincial public hearings that follow will allow any South Africans unable for, whatever reason, to express their views on the Bill in writing the opportunity to have their voices heard. In that regard, in responding to questions raised by committee members at Wednesday’s meeting, the presenters nevertheless appeared to overlook the significance of a comment from the ACDP’s Wayne Thring. Having attended several provincial public hearings on the draft Constitution 18th Amendment Bill, he was apparently subjected to ‘hours and hours of the same refrain’ from the members of ‘particular political parties’ – who were allegedly reading from flyers circulated at each meeting. It is not clear from the audio clip if this is understood to facilitate the democratic, public participation process in the same way as lobby groups with websites and written submission templates featuring their views.


11 December 2020

The call for written submissions on the revised Expropriation Bill was re-issued yesterday – a notice published on 1st December having been withdrawn shortly afterwards, as Legalbrief Today reported at the time. The deadline for input nevertheless remains 10 February 2021, notes Pam Saxby. The Bill’s sub-clauses 12(3) and (4) respectively propose a list of circumstances in which land expropriation for nil compensation could be justifiable; and that, when a court or arbitrator determines the amount of compensation in terms of section 23 of the 1996 Land Reform (Labour Tenants) Act, ‘it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances’. Otherwise, according to a media statement issued by the inter-ministerial committee on land reform shortly before the revised Bill was tabled in October, it ‘retains unchanged’ the ‘substantive content’ of a remitted and eventually withdrawn 2015 ‘D’ version. As Legalbrief Today has also reported, the National Assembly recently extended to 31 March 2021 the date by which a Constitution 18th Amendment Bill should be tabled, expressly allowing expropriation without compensation for land reform purposes.


2 December 2020

In anticipation of parliamentary hearings on the revised Expropriation Bill, the National Assembly’s Public Works & Infrastructure Committee has called for written submissions by 10 February 2021, reports Pam Saxby. More than twice the length of time normally provided, the 10-week public commentary period takes account of festive season holiday commitments. This despite only one clause in the Bill differing from a ‘D’ version of the 2015 Bill eventually withdrawn from Parliament in 2018. Although that version was informed by a robust public participation process in the National Assembly during 2015 and 2016, former President Jacob Zuma’s decision to return it to Parliament in 2017 was based on concerns about the NCOP public consultation process. In his view, the Bill should also have been considered by the National House of Traditional Leaders given its possible implications for communal land.

Against that backdrop, the revised Bill has been reopened in its entirety for stakeholder input, as Legalbrief Today has already reported. Sub-clauses 12(3) and (4) respectively propose a list of circumstances in which land expropriation for nil compensation could be justifiable; and that, when a court or arbitrator determines the amount of compensation in terms of section 23 of the 1996 Land Reform (Labour Tenants) Act, ‘it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances’. Otherwise, according to a statement issued by the inter-ministerial committee on land reform shortly before the revised Bill was tabled in October, it ‘retains unchanged’ the remitted and eventually withdrawn version’s ‘substantive content’.

Once operationalised, the proposed new piece of legislation will become the law of general application required to enable framework legislation envisaged in the draft Constitution 18th Amendment Bill. As Legalbrief Today has regularly reported, seeking to amend section 25 of the Constitution (property) to expressly allow for expropriation without compensation when this is deemed appropriate for land reform purposes, the draft Bill is still being finalised. Unlikely to complete the necessary work by the end of the year, as mandated, the National Assembly ad hoc committee concerned is expected to approach the House this week for more time.


25 November 2020

The revised Expropriation Bill will be reopened in its entirety on 10 December for a 60-day public commentary period – twice the amount of time normally allowed, to accommodate the festive season. This was agreed yesterday during a meeting of the National Assembly’s Public Works & Infrastructure Committee (Parliamentary Monitoring Group), when members were briefed on the Bill’s contents, reports Pam Saxby. According to Advocate Uday Naidoo, who appears to have attended the meeting expressly to advise members on their obligations in terms of section 59(1)(a) of the Constitution, the committee is obliged to facilitate a public consultation process ‘at least in so far as the new clauses 12(3) and (4) are concerned’.

As Legalbrief Today has regularly reported, sub-clause 12(3) proposes a list of circumstances in which land expropriation for nil compensation could be justifiable. Sub-clause 12(4) provides that, when a court or arbitrator determines the amount of compensation in terms of section 23 of the 1996 Land Reform (Labour Tenants) Act, ‘it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances’. Otherwise, according to a media statement issued by the inter-ministerial committee on land reform shortly before the revised Bill was tabled last month, it ‘retains unchanged’ the ‘substantive content’ of a version returned to Parliament in 2017 by former President Jacob Zuma for a more robust public participation process. That version was withdrawn the following year, shortly after government’s intentions regarding amendments to section 25 of the Constitution were announced.

The committee is planning to hold parliamentary hearings during February 2021, followed by public hearings in all nine provinces. Its work on the Bill is expected to have completed by the end of next June, at which point the proposed new piece of legislation will be tabled in the House for a second reading and sent to the NCOP, where more public hearings are likely to be held at committee level and in the provincial legislatures. The Bill has already been sent to the National House of Traditional Leaders, which was given until 6 December to comment on its contents.


11 November 2020

The importance of ‘creating (a) clear framework’ for undertaking land expropriation ‘for public purposes and in the public interest’ was emphasised yesterday by Agriculture, Land Reform & Rural Development Minister Thoko Didiza, who is ‘pleased’ that the revised Expropriation Bill ‘has finally been tabled in Parliament’, reports Pam Saxby. Addressing the media on progress made to date in releasing and allocating state-owned agricultural land, the Minister called on all South Africans to ‘familiarise’ themselves with the Bill and ‘make inputs to the parliamentary process’. However, at the time of writing the National Assembly’s Public Works & Infrastructure Committee had yet to call for written submissions. Having been familiarised last month with the procedures to be followed in processing new legislation (as well as the passage of the Bill’s 2015 version through Parliament, its remittal and withdrawal), members are not expected to be briefed on the revised Bill’s contents until 24 November – as Legalbrief Today has already reported. Meanwhile, it is being considered by the National House of Traditional Leaders, which has been given until 6 December to comment.

Regarding the release of state-owned agricultural land to qualifying beneficiaries, Didiza confirmed that a land rights inquiry is now under way with the aim of determining the ‘status’ of existing occupants and how the land concerned is being used. This is noting that some communities had already begun the process of applying for 30-year leases, but that ‘their applications were never finalised’. According to the Minister, the state-owned land identified for release was ‘earmarked’ by the apartheid regime for ‘the consolidation of homelands’ and held at the time by the former South African Development Trust. Before 1994, parts of this land had already been allocated to farmers in plots of different sizes – apparently ‘depending on ... (its) agricultural viability’. Other parts were being ‘used by communities for grazing’. ‘After 1994, an attempt was made to transfer some of the land to farmers … (but) this process was not concluded’. Against that backdrop, the land rights inquiry will continue until ‘all state-owned land has been recorded and accounted for’. It is not clear from Didiza’s speaking notes if affected farmers, farm dwellers and communities are expected to submit applications for the portions they already use. This notwithstanding, thus far nearly 6 000 online and ‘a number’ of ‘physical’ applications have been received – with the closing date remaining 15 November.


7 November 2020

The revised Expropriation Bill has been sent to the National House of Traditional Leaders (NTHL) for comment, reports Pam Saxby. This was confirmed on Friday in a parliamentary announcements, tablings and committee reports document also setting 6 December as the deadline for NHTL input on the contents of the proposed new statute. The National Assembly Committee on Public Works & Infrastructure is scheduled to meet on 24 November for a departmental briefing on the Bill but has yet to formally consider when to call for written submissions in anticipation of public hearings.

As Legalbrief Today has regularly reported, the Bill’s sub-clause 12(3) proposes circumstances in which land expropriation for nil compensation could be justifiable. Meanwhile, the ad hoc committee responsible for preparing an amendment to section 25 of the Constitution as the necessary framework legislation was expected to hold the final public hearing on its draft Constitution 18th Amendment Bill this weekend in Polokwane. Originally scheduled for 25 October, the hearing was cancelled after a ‘scuffle’ between groups of ANC and EFF supporters, according to a committee media statement announcing the rescheduled event.


28 October 2020

The revised Expropriation Bill looks set to be processed from scratch by the National Assembly’s Public Works & Infrastructure Committee – at least, that was the gist of a Parliamentary Monitoring Group sound recording of yesterday’s meeting, when support staff briefed members on the procedures followed in dealing with legislation with implications for the provinces and the National House of Traditional Leaders. Yet, notes Pam Saxby, as Legalbrief Today has already reported, the revised Bill ‘retains unchanged’ the ‘substantive content’ of a version returned to Parliament in 2018 by former President Jacob Zuma for a more robust public participation process. This was confirmed in a media statement issued by the inter-ministerial committee on land reform shortly before the revised Bill was tabled. It introduces one new clause ‘dealing with instances where it may be just and equitable to pay nil compensation for (the) expropriation of property in the public interest’.

A departmental briefing on the Bill’s contents has been scheduled for 24 November – just 10 days before Parliament’s festive season recess begins. It remains to be seen if the committee chooses to issue a call this year for written submissions in anticipation of public hearings, and if the entire Bill will be re-opened for comment. Meanwhile, yesterday’s meeting revealed how little most committee members know about processing legislation. Most worryingly, SA’s second largest opposition party may be unaware of the link between the draft Constitution 18th Amendment Bill as a proposed new piece of framework legislation and the revised Expropriation Bill as the required law of general application. Input from the EFF’s Annacleta Siwisa pointed to the possibility of a widespread perception among land-hungry citizens that, once section 25 of the Constitution has been amended, expropriation without compensation will proceed. It is not clear what, if anything, has been done to explain these matters and their implications at grassroots level.


10 October 2020

An explanatory summary of the revised Expropriation Bill was gazetted on Friday in anticipation of the formal introduction of this long-awaited piece of proposed new legislation in Parliament. When first published, the notice concerned referred to the Bill’s availability on the Department of Public Works & Infrastructure website. However, yesterday the inter-ministerial committee on land reform issued a media statement among other things drawing attention to a new Government Gazette notice serving as an explanatory summary with the draft Bill attached. Posted on the department’s website, it confirms that – once passed by Parliament and enacted, the proposed new piece of legislation will replace the 1975 Expropriation Act of 1975. The statement also unpacks the process followed in developing the Bill and its relationship to a draft Constitution 18th Amendment Bill now in the final leg of nationwide public hearings, reports Legalbrief's Pam Saxby.

Legalbrief Today has already reported on both these matters. According to the statement, ‘the Bill retains unchanged the substantive content of the earlier Bill’. Tabled in 2015, its ‘D’ version was eventually withdrawn in 2018, having been passed by both Houses, sent to former President Jacob Zuma for assent and returned to Parliament for a more robust public participation process. 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. Against that backdrop, on 4 December, 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’.

As Legalbrief Today has regularly reported, the draft Constitution 18th Amendment Bill simply seeks to provide for expropriation with nil compensation for land reform purposes in circumstances to be specified in national legislation. When the ad hoc committee met last December to discuss and eventually finalise it for release into the public domain, the ANC position was that the Bill 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. The DA and the FF Plus nevertheless expressed concern at the time that this could open the door to the further erosion of property rights. This is noting that legislation amending the Constitution requires the support of two-thirds of the House, whereas only 50% is required to support an amendment to national legislation.

Against that backdrop, according to yesterday’s statement the replacement Bill introduces one new clause ‘dealing with instances where it may be just and equitable to pay nil compensation for expropriation of property in the public interest’. This is noting 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 be ‘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’.

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, having regard to all relevant circumstances nil compensation may be deemed just and equitable.



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