South Africa’s controversial expropriation bill is making its way through public consultation processes – and religious organisation Freedom of Religion South Africa (FOR SA) says that the new laws could be a veiled threat to churches in the country.
FOR SA is a non-profit, legal advocacy organisation that focuses on upholding the rights to religious freedom in the country.
The Expropriation Bill was adopted by the National Assembly in September 2022 and passed on to the National Council of Provinces (NCOP) for concurrence. The proposed laws are currently going through a public participation process across the various provinces in South Africa.
If signed into law, the bill will allow for the expropriation of land in South Africa, with the caveat that such expropriation is for “public purpose” and in the “public interest”, as stipulated in section 25 of the Constitution.
One of the more controversial aspects of the law is that it introduces instances where “nil compensation” can be offered for expropriated land, where previously only “just and equitable compensation” could be considered.
The government has stated that nil compensation – dubbed expropriation without compensation or EWC – would only be considered in specified instances, such as abandoned land, state land, or land held for speculative purposes.
The bill is a result of the ANC’s failed bid to change South Africa’s Constitution to make expropriation without compensation a reality. The party needed a two-thirds majority in parliament to make that change – however, passing new laws like the Expropriation Bill requires only a simple majority.
Threat to religion
FOR SA has raised concerns that the proposed laws and definitions in the bill are too broad – and may be used by the state to come after land held by churches or other religious groups.
While much of the focus has been on the expropriation of “land”, FOR SA highlighted that the proposed laws specify the expropriation of “property” – and the bill itself explicitly states that “property is not limited to land”.
This, the group said, opens the laws to be interpreted in a multitude of ways, and could see almost anything expropriated by the state.
“If the definition of property is not explicitly limited to land and land-related rights, ‘property’ could mean anything from land to intellectual property or even the clothes on your back,” FOR SA said.
“The bill lists criteria that must be considered before expropriation without compensation can occur, but it is an ‘open’ list, which precludes legal certainty and is potentially open to abuse.”
The group said that the bill does not provide for judicial oversight in scenarios where property is expropriated on an urgent basis, and there are also no exceptions for certain types of land.
FOR SA’s objections to the bill focus solely on potentially expropriating “church” land and/or land used for religious purposes, warning that faith communities can potentially see their land and other property being expropriated or taken away against their will and without any compensation.
However, more generally, the group said that it is concerned that the bill is potentially in conflict with Section 25 of the Constitution, which specifically protects property rights and also requires just and equitable payment for property.
The group said it would join the voices pushing back against the bill in the provinces, and would make the appropriate submissions where necessary.
It is pushing for the definition of “property” to be limited to land and land-related property rights, while also “closing” the list of situations where EWC would be possible – if not eliminating it from the laws entirely.
It also wants explicit exemptions to be added to the laws, protecting churches and land for religious use from potential state takeover.
Other groups are also pushing against the laws, including Afriforum, the Western Cape Government and various agriculture groups. The laws enjoy full support by others, however, particularly labour unions and political parties.