Constitutional concerns over controversial expropriation bills in South Africa
06 Feb 2024
Government departments and parliamentary committees might duly invite members of the public to lodge written comments and representations on legislative Bills proposed by the government, but comments and representations received from the public risk being brushed aside.
The national Constitution stipulates that government administration should conform to the democratic fundamental that the public must be encouraged to participate in policymaking. Everyone has the right to reasonable administrative action.
The Constitution requires the Houses of Parliament to facilitate public involvement in their legislative processes. Each House must make rules concerning its business which have due regard to public involvement.
Despite all these lofty principles, and although government departments and parliamentary committees might invite public comments on Bills, departments or committees frequently do not give due and proper regard to comments received.
Take, for example, the contentious 2018 draft Expropriation Bill and the consequent 2020 Expropriation Bill itself. As of late 2023, this 2020 Bill is still wending its way through Parliament.
The Bill is aimed at replacing the 1975 statute that currently governs expropriation. The Bill will, so it claims, authorise the State to expropriate private property in accordance “with the Constitution”.
Yet neither the 2018 draft Expropriation Bill, nor the 2020 Expropriation Bill now before Parliament, accord with the Constitution.
The Constitution stipulates that property may by statute be expropriated for a public purpose or in the public interest, but “subject to compensation”.
The Constitution lays down that the amount of compensation must “be just and equitable”, reflecting an “equitable balance” between the public interest “and the interests of those affected,” having regard to the property’s market value (and other relevant circumstances including the history of its acquisition and its current use and the purpose of the expropriation).
Neither the preceding 2018 draft Bill, gazetted in late 2018 for comment, nor the 2020 Bill itself now before Parliament, accord with this constitutional requirement, that the amount of compensation must reflect an equitable balance with the interests of the affected owner of the property having regard to its market value.
Indeed, the 2018 draft Bill sought (the italics are mine) to lay down that it “may be just and equitable for nil compensation to be paid” where land is expropriated in the public interest, having regard to all relevant circumstances including “where the land is occupied or used by a labour tenant”, or where the land is held “for purely speculative purposes”, or where “the owner of the land has abandoned the land”.
These subclauses of the 2018 draft Bill attempted to determine limits or boundaries to the constitutional mandate that compensation must be just and equitable and reflect an equitable balance with the interests of the landowner of the property having regard to its market value.
Those offending subclauses would be invalid. The country’s highest courts have ruled that it is the Constitution, not legislation, that provides the principles applicable when property is expropriated. Statutes should not seek to define the ambit of constitutional rights. Compensation for expropriation is a constitutional issue. Compensation must be paid in accordance with the Bill of Rights, which requires a balancing of interests to determine just and equitable compensation. The courts tend to focus on market value, since it is the only quantifiable value. (Legal experts observe that market value therefore remains pivotal when determining compensation.)
These defects in the 2018 draft Bill have been clearly pointed out in comments and representations submitted by the public to the responsible government department.
Despite that, two of those three offensive subclauses of the 2018 draft Bill survive unscathed, to appear again in the 2020 Bill now before Parliament.
Indeed, the language of those two offending subclauses are strengthened in the 2020 Bill. The Bill now provides that it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest, having regard to relevant circumstances including “where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from appreciation of its market value” and “notwithstanding registration of ownership […], where an owner has abandoned the land by failing to exercise control over it”.
The 2020 Bill adds a further subclause stating when it may be just and equitable for nil compensation to be paid, namely “when the nature or condition of the property poses a health, safety or physical risk to persons or other property”.
These subclauses all violate the Rule of Law. The Rule of Law requires that the law must afford adequate protection of fundamental human rights.
The Rule of Law requires compliance by the state with its obligations in international law which, whether deriving from treaty or international custom and practice, governs the conduct of nations.
The preamble to the 1948 Universal Declaration of Human Rights recites that it is essential that human rights should be protected by the Rule of Law, if man is not to be compelled to have recourse as a last resort to rebellion against tyranny and oppression.
Article written by Gary Moore and the Free Market Foundation.
See also:
- Ad hoc committee on Section 25 to finalise text on land expropriation without compensation
- Expropriation without compensation- What you need to know
- Human Rights and the Transformation of Property
- Anticipating transformations in the South African legal landscape
