Given that the Section 25 amendment was resoundingly rejected in Parliament, the Expropriation Bill, as the law of general application giving effect to the Property Clause, should not be used as a backstop measure to illegally change the Constitution through ordinary legislation, writes the DA's Samantha Graham-Mare.
Following the failure by the African National Congress (ANC) to obtain the required majority to pass the Constitution 18th Amendment Bill, which sought to amend Section 25 of the Constitution to allow for expropriation of land without compensation, there is increased concern that the ANC may be trying to use the Expropriation Bill, currently before the Public Works and Infrastructure Committee, to try and achieve what they could not with the Section 25 Bill.
The ongoing clause by clause review of the Expropriation Bill by the Committee, of which I am part, has exposed a dogged determination by the ANC to bulldoze "nil compensation" into Section 12 of the Bill which deals with the issue of compensation for expropriated property.
In addition, the vague proposals and opposition to any amendments that seek to protect private property rights from the abuse, reveal that the ANC have absolutely no understanding of the potential impact this Bill could have on people's inviolable property and ownership rights.
All indications are that the ANC wants to frame the Bill as a land reform instrument, of which there are many. This Bill is not one of them. Earlier this year, Sports Minister, Nathi Mthethwa, made a misleading claim to the effect that Parliament needed to pass the Expropriation Bill in order to "give effect to land reform and distribution". It's a false claim that was repeated often during public hearings to mislead members of the public.
Unlimited powers
As a law of general application, the Expropriation Bill's explanatory summary states that the Bill is designed "... to guide the processes and procedures for expropriation of property by organs of state and to provide for instances where expropriation with nil compensation may be just and equitable". Desperate for relevance and control, the ANC is using the Bill's stated objective as a basis to justify broadening state authority over property ownership.
Nowhere is this statist approach to property rights more apparent than in the persistent inclusion of section 12(3) of the Expropriation Bill, which gives government wide ranging and unlimited powers to expropriate land or property without compensation. The clause provides for specific circumstances under which expropriation can take place without compensation.
These four specific provisions create the impression that this is a closed list, however the caveat "but not limited to...", opens the door for any other circumstances that can be justified by the expropriating authority.
By identifying specific circumstances where nil compensation is applicable, this Bill is already making a determination of nil compensation as being "just and equitable", which denies a property owner his or her rights to a proper assessment of the value of their property earmarked for expropriation.
Section 25(2)(b) of the Constitution makes it clear that the amount of compensation, as well as the time and manner of the payment thereof, must have been agreed to by those affected or approved by a court.
The Expropriation Bill's Section 12(3) eliminates consensus and usurps the authority of the judiciary by predetermining the amount of compensation to be nil in defined circumstances.
This is a clear contravention of the doctrine of separation of powers. A recent judgment in the Land Claims Court found that in determining "just and equitable" compensation, the full market value must be the starting point when no other factors such as those covered by Section 25(3) of the Constitution apply. That being said, the argument against section 12(3) should be a moot point.
Unconstitutional
The 18th Constitutional Amendment Bill sought to entrench expropriation without compensation in the Constitution. This Bill failed to pass in Parliament. Retention of the nil compensation clause in the Expropriation Bill is, thus, unconstitutional to the extent that it becomes part of a wider mechanism to amend the Constitution via ordinary legislation.
In addition to the constitutional infringement that the Bill's "nil compensation" provision elicits, some clauses are vague and open to subjective interpretation by an expropriating authority – which places a property owner at a disadvantage:
- Clause 3(1) gives the Minister of Public Works the power to expropriate property "... in the public interest". The public interest is not clearly defined, but the reference to land reform as part of the definition further underscores the idea that the ANC wish to package this Bill as a land reform instrument. An additional concern is that the minister is given free rein to decide what constitutes "public interest".
- It is our contention that the initial offer of compensation should be made by the expropriating authority. They would have already done the due diligence on the property prior to determining the desirability of the expropriation and during these investigations, they would have established an idea of the value of the property. This was proposed by the DA during the clause by clause deliberations and was included in the revised version of the Bill as presented to the Committee. The concept of the expropriating authority making the first offer led to a new process being proposed in the amended Bill which allowed for a counter offer mechanism from the property owner. The ANC have unilaterally opposed both amendments in the Portfolio Committee - a clear indication that they do not understand the impact of this Bill in its current form, on private property rights.
- Clause 17(3) is unnecessarily prejudicial to the property owner in favour of the expropriating authority. The clause states that "Any delay in payment of compensation to the expropriated owner or expropriated holder... will not prevent the passing of the right to possession to the expropriating authority..." This means that an expropriating authority can take possession of a property, irrespective of whether or not there has been consensus reached on the amount of compensation. Once an expropriating authority is in possession of the property, the owner is heavily disadvantaged in terms of their bargaining power.
The Expropriation Bill, if left unamended, represents a material dilution of property rights and must then be rejected in its entirety. While the 18th Constitutional Amendment Bill was still on the table, the Expropriation Bill was mooted as the law of general application that gave effect to the Property Clause in the Constitution.
As Section 12(3) was incorporated verbatim from the proposed constitutional amendment, had the Amendment Bill carried, it would have been difficult to argue against its inclusion in the Expropriation Bill. However, given that the Section 25 amendment was resoundingly rejected in Parliament, the Expropriation Bill, as the law of general application giving effect to the Property Clause, should not be used as a backstop measure to illegally change the Constitution through ordinary legislation.
- Samantha Graham-Mare is the DA Shadow Minister of Public Works and Infrastructure.
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