The FW de Klerk Foundation has raised concern following President Cyril Ramaphosa signing the Expropriation bill on Thursday. The foundation said that the Expropriation Act, 2020, allows organs of state such as local, provincial, and national authorities to expropriate property in the public interest.
Christo van der Rheede, Executive Director of the FW de Klerk Foundation, said that President Cyril Ramaphosa has signed the Expropriation Bill into law after five years of extensive public participation – whether such participation was meaningful is another question. “Now known as the Expropriation Act, 2020, this law allows organs of state such as local, provincial, and national authorities to expropriate property in the public interest. What is noteworthy is that the Act specifically states that it “may be just and equitable for nil compensation to be paid where land is expropriated in the public interest.”
Van der Rheede added that colloquially called "expropriation without compensation”, or “EWC”, this is reiterated elsewhere in the Act. “The Expropriation Act, 2020 repeals the apartheid-era Expropriation Act, 1975. According to the Presidency, this law is aligned with section 25 of the Constitution, which states that no law may permit arbitrary deprivation of property, while recognising that expropriation is a necessary mechanism that allows the state to acquire someone’s property for a public purpose or in the public interest.”
Van der Rheede said that the constitution explicitly states that such expropriation is subject to just and equitable compensation being paid by the state to the person whose property is being expropriated. “Sections 25(5) and 25(8) of the constitution require the state to take reasonable legislative and other measures within its available resources to promote conditions that allow citizens to access land on an equitable basis. No provision of section 25 prevents the state from taking legislative and other measures to effect land, water, and related reform.”
Van der Rheede added that the Expropriation Act, 2020 should not be confused with previous attempts to amend section 25 of the Constitution, which guarantees fair and equitable compensation in cases of land expropriation. “The Constitution is the highest law in South Africa and takes precedence, which means that any law that contradicts the Constitution is null and void. It was previously attempted to change the Constitution to expressly allow for EWC (see the Constitution Eighteenth Amendment Bill (B18-2021) that was rejected by Parliament on 7 December 2021).”
Van der Rheede said that because the Constitution has specifically not been amended to allow for EWC, the Expropriation Act, 2020 is immediately open to a constitutional challenge for being inconsistent with the Constitution. “In addition, cases of zero compensation in the Act are limited to land held for speculative purposes, abandoned property (both land and buildings), indebted land, and land that poses a risk to public health and safety. Section 12(3) is, however, not a closed list. It simply states some factors that may be considered, but these are not all the factors that can be considered.”
Van der Rheede said that whilst it is legally argued that “nil” compensation, one of the big concerns, does not mean that land can be expropriated without compensation as it purports not to be the same as compensation, it in fact boils down to zero compensation. “Section 12 of the new Act allows the courts to determine whether “nil compensation” is just and equitable in specific circumstances. This also means that the courts can determine when nil compensation is neither fair nor equitable under the Act. Infringement of property rights in the near future is, therefore, unlikely.”
Van der Rheede added that the real test, however, lies in the manner in which the Act will be implemented. “Either in accordance with the Constitution or in a manner whose outcome is not just and equitable and therefore out of step with the requirements of the Constitution. In cases of large-scale land occupation, especially near or even in towns and cities, the courts offer virtually no protection to landowners and court orders are ignored.”
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