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Draft Expropriation Bill a ‘disappointment’ for land rights organisation- South Africa

The draft Expropriation Bill gazetted by public works minister Thulas Nxesi last week for public comment was a disappointment and would not accelerate land reform, the Land Access Movement of SA (Lamosa) said.

It believes the proposed legislation lacks justice and provides no equity for homeland dwellers.

Lamosa, a federation of rural organisations advocating for land and agrarian rights says the draft bill is cumbersome and relies on too many legal steps for “incompetent and corruptible” officials to get wrong.

It also ignores the land rights of those who occupy land under customary law,  makes the land of the 800 state-owned companies  “untouchable” for expropriation by authorities without the concurrence of the relevant executive authority responsible for them, and leaves mining companies “scot-free to continue pillaging our land with impunity”.

“Our government has again failed our poor rural people,” Lamosa said in a statement.

It argued that customary law land owners required special attention under the constitution.

“Customary law owners of vast tracts of former bantustans and communal land require extraordinary protection and promotion of their rights,” Lamosa said.

This was partly recognised by the provisions of the Interim Protection of Informal Land Rights Act which Lamosa said would be undermined if the draft bill became law.

A “very sore point” for Lamosa was that mining companies apparently could not be expropriated under the proposed law.

The implication of the draft bill was that mining rights granted or existing in terms of the Minerals and Petroleum Resources Development Act could not be expropriated, or could not be expropriated at the same time that the surface land was expropriated.

According to Lamosa, the new draft bill gave minimal and unworkable protection to informal land rights holders, and laid down “unreasonable” procedural requirements and time limits on customary ownership households and communities. They would have to quantify the value of each item of their individual and collective property rights themselves, and then submit evidence about this to director generals who would have to verify information in an “arbitrary manner” without any checks and balances being built into the process.

Lamosa also objected to the amount which could be paid as compensation for expropriation, arguing that the factors listed in the bill failed to recognise that the expropriation of customary law owners might warrant compensation above market value.

In an article for Business Day, Nxesi and deputy public works minister Jeremy Cronin said the constitution required a general law of application to guide all expropriations. This is what the draft Expropriation Bill was intended to provide.
They said the draft bill was essentially the same as the previous Expropriation Bill which was passed by parliament in 2016 but sent back by former president Jacob Zuma on procedural grounds.

However the new bill added a brief new section dealing with circumstances in which nil compensation might be just and equitable.

Such circumstances include where the owner has abandoned the land, where the land is occupied or used by a labour tenant, where the land is owned by a state-owned corporation (subject to concurrence with the relevant executive authority), where the land is held for purely speculative purposes, and where the market value of the land is less than the current value of direct state investment or subsidy in the original acquisition or subsequent capital improvement of the land.

The draft bill provides that expropriating authorities may not proceed with expropriation unless they have first attempted to reach an agreement with the owner for the acquisition on reasonable terms.

All steps in the process, including the question of what constitutes just and equitable compensation, are subject to judicial review.

The passage of the bill through parliament is separate to plans to  amend the constitution to allow for expropriation without compensation. 

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