Expropriation without Compensation: Ins, Outs, Doubts, and Importance in the COVID Context

Land expropriation is arguably one of the most hotly contested, politicised topics dominating current news cycles. In fact, it has been making headlines since 2017, when Deputy President David Mabuza announced the ANC’s intention to amend section 25 of the Constitution to allow for expropriation without compensation. The post-apartheid Legislature has come a long way in repealing and replacing unfairly discriminatory land laws, but many argue that it has not substantively changed the dire inequality in South Africa.

According to the 2017 Land Audit Report, 72 per cent of farms and agricultural holdings owned by individuals are White-owned, 14 per cent are Coloured-owned, and 4 per cent are Africanowned. The rest is either co-owned, Indianowned, or unaccounted for. It was in response to this context of inequality and the concomitant pressures on the ruling party that the amendment has gained so much traction in South African politics. Speaking of context, it is worth noting the differences between our social welfare system and those of other countries. Owing to the injustices of our past, the Government seeks to redistribute the land and provide previously dispossessed landowners with real property rights of ownership instead of renters’ rights. Renters’ rights are personal rights that do not hold the same weight as they are enforceable only in contract and will not benefit dispossessed families to the same extent.

Section 25 of the Constitution already provides for the expropriation of property in line with its principles of redistributive justice. This is slow, however, as it is subject to a willing-buyer-willingseller principle, in which negotiations must take place before the transfer of ownership. The new process will be as follows: The municipality may survey a piece of land and begin negotiations with the owner regarding price. If these negotiations fail, it may issue a notice of its intention to expropriate. It is then time for the official notice of expropriation. Ownership of the property will pass without the interference of the courts at a date to be determined by the document.

Section 12(3) of the Bill states the circumstances under which land may be expropriated for nil compensation. It stipulates that circumstances include but are not limited to: When the land is vacant and exists solely to appreciate in value; where it is held by an organ of state and it is not

‘Considering the exponential increase in human suffering as a result of the pandemic, it is imperative that the disadvantaged acquire land rights.’

required to perform its main functions; where the land has been abandoned by an owner through their failure 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 the acquisition and beneficial capital improvement of the land; and when the property poses health or safety risks to other persons or properties.

In a statement by the Inter-ministerial Committee on Land Reform, it argued that it is not uncommon to grant governments the power to expropriate land if it is in the public interest. They cited ‘eminent domain’ in the United States of America, ‘land acquisition’ in India and ‘compulsory purchase’ in the United Kingdom, to name a few. This new Bill is set to replace the 1975 Expropriation Act, which has been declared inconsistent with the constitution as it conflicts with the principles of lawful and procedurally fair administrative justice. The use of peremptory language in the bill, (‘may’) when referring to expropriation without compensation, is important as it denotes that nil compensation will not always be necessary in the aforementioned scenarios; however, it is possible.

As we live in a democratic country with a healthy commitment to public participation in the law-making process, any article on this subject would be incomplete without mentioning public opinion. In the opposition, many fear that this action threatens the security of property rights for all people, not simply white farm owners. This is because the Bill stipulates that the ‘property’ it refers to is not limited to land. In fact, the Banking Association of South Africa (BASA) has expressed concerns that expropriation without compensation will not only discourage foreign investment but threaten food security and fuel an economic crisis – something which the South African economy can ill afford after the effects of COVID-19. While supporting land reform, their suggestion is to allow for the involvement of the Judiciary in such a way that it becomes the “final arbiter” on the expropriation of land as opposed On the other hand, some say that the Bill does not go far enough to transform the racialised, skewed land ownership and resulting inequality in South Africa. Criticisms of the current debate surrounding expropriation note that exclusive coverage has been given to property owners, yet none has been given to the thousands of claimants who have not received land since submitting their claims before 1999. Furthermore, Professor Ruth Hall argues that disputes over compensation drastically slow down the already prolonged process of expropriation and serve mainly to preserve said racialised ownership patterns. There is hope that streamlining the negotiation process will provide speedier outcomes for families still awaiting claims to their rightful land. This is especially important under the contemporary COVID-induced economic uncertainty, disproportionately affecting the disenfranchised. Other arguments hold that the “hogging” of land by the white minority is a clear ethical issue. Its premise is clear – that the previously dispossessed deserve their land back.

The shrinking of the economy, with its concomitant unemployment rates, saw a growing population of homeless people. Those who were unable to afford their previous living conditions were forced onto the streets in search of food and shelter. It is no surprise then, that we saw an increase in illegal land occupations last year. The progress of the Expropriation Bill saw another setback while Parliament adjusted to the “new normal”. Considering the exponential increase in human suffering as a result of the pandemic, it is imperative that the disadvantaged acquire land rights. While there is dissent on whether the Executive should have the power to expropriate without compensating, there is one thing that we can all agree on: This Bill is integral to the COVIDinduced lived realities of the South African people, present and future.