The big problem with South Africa’s new land expropriation law

Government’s new draft bill on land expropriation without compensation is ‘highly problematic’ and may cause a number of legal issues, says the Democratic Alliance (DA).

The draft bill was published for public comment on 6 December. It aims to amend the Constitution to provide that, where land and any improvements on it are expropriated for the purposes of land reform, the amount of compensation payable may be nil.

However, the bill itself does not specify the circumstances when no compensation may be given.

Instead, it states that a separate piece of national legislation must set out the specific circumstances where a court may determine that the amount of compensation is nil.

Problematic

In an analysis of the bill, the Democratic Alliance said that it is ‘extremely problematic and concerning’ on two grounds.

The first issue centres around the issue of what is defined as ‘land’ and what is defined as ‘property’, it said.

“Although the amendments refer to land, it must be understood that land is not confined to agricultural land. It includes any land, ranging from farms to communal land, small holdings to urban property. The concept land is not defined in the amendment.”

The DA added that the Constitution in Section 25 (4)(b) stipulates that property is not limited to land, meaning any property.

“There should thus be no doubt that land in the amendment includes any form of land,” it said.

Secondly, the proposed amendment in a new Section 3(A) proposes that the circumstances to determine whether the compensation for land should be nil, should be left to legislation, the DA said.

“This is highly problematic as the threshold required for passing legislation is a simple majority in Parliament, whereas passing a constitutional amendment is much higher as two-thirds majority plus six of the nine provinces in the NCOP are required.

“It also makes it possible for extremely arbitrary circumstances to be proposed through legislation.”

Rushed comment period

The DA also accused the government of rushing the bill through, meaning that the public comment period has been severely curtailed by the limited period of mid-December, the festive season and then January.

“At the first meeting of the committee, the chairperson was quite adamant that the process should not be rushed and that there could even be a request for an extension.

“Since then there has been a sudden change and urgency. There is now a tremendous rush and the reply to my question in the committee regarding this, was met with a reply that can only be described as desperate, i.e. that the people of the country cannot wait any longer than 31 March,” it said.

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