Government looks to finalise expropriation laws ahead of 2024 elections

One of the first items on parliament’s agenda for 2024 is to bring the widely-debated Expropriation Bill into law ahead of this year’s general elections.

Parliament’s Select Committee on Transport, Public Service and Administration, Public Works and Infrastructure said it aims to conclude consultations and present its final mandates for the bill in the first week of February when parliament reconvenes.

After numerous revised versions, the bill was rejected in 2021 but found new life in 2022 and passed by the National Assembly in September 2022.

It was expected to edge closer to being signed into law back in December 2023, with the adoption of proposed amendments (C-list) to clauses 1, 2, 5, 7, 8, 9, 10, 12, 13 15, 19 and 22 (an important area of which is the proposed negotiating mandates from the provinces).

However, the committee did not proceed as the Department of Public Works and Infrastructure (DPWI) requested further consultation on Clause 20, which deals with the matter of “urgent expropriation“.

Committee chairperson Mosomanegare Mmoiemang said, “it makes sense for the committee to grant the department more time to finalise Clause 20 to strengthen the bill and to ensure that it is constitutional.”

The DPWI said that it wants to ensure that the expropriation process remains non-arbitrary, even in urgent circumstances where a state of disaster had been declared under the Disaster Management Act.

The DPWI was worried that the requirement of a court approval for expropriation during a state of disaster could be overly judicial. Additionally, it was concerned that exempting expropriating authorities from conducting proper investigations and considering owner or holder representations could violate the non-arbitrariness requirement in the Constitution.

DPWI’s proposal is to require the expropriating authority to comply with the investigation and consultation requirements but to do so on a truncated timetable.

The department said that this would mean that the expropriating authority would still need to do its homework to determine the suitability of the property, engage with the municipality, and, importantly, give prior notification of the intended expropriation to an owner or holder who stands to lose their property and to elicit comments from them before actually taking the property.

However, the authority is urged to do so by the department in a streamlined and shortened way.

The Expropriation Bill seeks to, among other things:

• Provide for the expropriation of property for a public purpose or in the public interest;
• Regulate the procedure for such expropriation of property, including payment of compensation;
• Identify certain instances where the provision of no compensation may be just and equitable for expropriation in the public interest;
• Repeal the Expropriation Act of 1975.

Currently, the bill allows the expropriation of land only for public purposes and in the interest of the public, as stipulated in Section 25 of the Constitution.

While Section 25(3) requires the amount of compensation for land to be “just and equitable” – reflecting an equitable balance between the public interest and the interests of those affected – the bill makes it possible for expropriation of land to be “be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to all relevant circumstances.”

These circumstances include abandoned land, state land, or land held for speculative purposes.

The ANC government has been relying on this bill to pursue its policy of land expropriation without compensation, after failing to get a two-thirds majority needed to change the constitution to accomplish such.

“[The ANC] have not had sufficient support to amend the constitution to allow for land expropriation without compensation in certain circumstances, although there has been progress with the passing of expropriation legislation and strengthening of land redistribution processes”, said the ruling party in its most recent national policy conference.

Opposition parties like the DA and the Freedom Front Plus have tried to limit the bill’s reach, such as making the regulations only apply to state-owned land – however, these have been defeated in votes. Contrastingly, the EFF has objected to the laws for not going far enough, instead pushing for nationalisation of all land.

Read: New land expropriation laws for South Africa are coming