The Expropriation Bill — democratic South Africa’s third attempt since 2008 to replace apartheid legislation still on the statute books — has been enmeshed in controversial, but ultimately stalled moves for a constitutional amendment for compensationless expropriation.
The current legislative draft, tabled late in 2020, allows expropriation only for “public purpose” and in the “public interest”, as stipulated in section 25 of the Constitution, dubbed the property clause. But now, alongside “just and equitable compensation”, it may be possible for “nil compensation” to be considered in specified instances, such as abandoned land, state land, or land held for speculative purposes.
And on Wednesday it remained enmeshed in controversy.
“Expropriation is not unique to South Africa. Expropriation of property with nil compensation is not a silver bullet,” said Public Works Minister Patricia de Lille in opening the debate, adding this law now brought certainty for all. “Expropriation is only one acquisition mechanism that in appropriate cases, for public interest, will enable land reform and redress…”
The National Assembly public works committee chairperson, ANC MP Nolitha Ntobongwana, fell in line, saying this was “a progressive bill”, not only because it brought the legislation in line with the Constitution, but also because it set out the framework to redress forced land dispossession.
“This bill will allow government to address the land question and bring dignity to our people,” said Ntobongwana.
DA MP Samantha Graham-Maré disagreed, saying it was “a lie” that the draft law would facilitate land reform.
“The Expropriation Bill before us … is not a tool for land reform, but rather a mechanism for punishing private property owners using arbitrary criteria that are [neither] easily measurable nor address historical spatial disadvantage.”
The proposed DA amendments, including limiting expropriation to specific instances only for state land, were defeated in a separate division by 226 votes, against 87 for and nine abstentions.
It’s too limited, says EFF
Earlier, the EFF criticised the bill for limiting land redistribution, and leaving land mostly in current ownership hands, unless the state was prepared to pay market-related prices.
“Do natives want land that is not used for productive purposes? Do they want state-owned land? Why is the ANC playing with people’s emotions?” asked EFF MP Mathapelo Siwisa. “We reject this bill and call on our supporters to see the ANC for what it is, a staunch defender of white landowners.”
IFP MP Sanele Zondo said the party also rejected the bill, because of bad legal drafting and because it was “the ANC covering up its ineffective land reform”.
Expropriation Bill is not as bad as portrayed, but the crux lies in implementation
Freedom Front Plus leader Pieter Groenewald called on De Lille to take the bill to the Constitutional Court to ensure it passes muster, particularly as property up for expropriation goes well beyond land.
“It is about power,” he said, adding the bill would have a negative effect on South Africa’s already troubled economy.
A long road to get here
Getting to Wednesday evening’s hour-long debate has been a long road.
The first version of the Expropriation Bill was withdrawn in 2008 when parliamentary legal advisers said it was unconstitutional for its exclusion of recourse to courts.
The next version was tabled in 2015, and passed in 2016 by Parliament, but then returned to the national legislature in 2017 by then president Jacob Zuma over concerns about an inadequate public participation process.
The legislative pipeline was stalled in the run-up to the 2017 ANC Nasrec elective conference, pending how this gathering would resolve the issue, given the push from the so-called Radical Economic Transformation grouping for compensationless expropriation.
That was how it went in a last-minute resolution for expropriation without compensation that, however, was moderated by qualifiers that this could not undermine food security or economic activity.
In August 2018, the ANC formally withdrew the existing expropriation draft law from Parliament, a necessity to make way for another new legislative proposal.
The third version of the Expropriation Bill was submitted to Parliament in December 2020 — as the processes towards a constitutional amendment of section 25 were entering the final stages.
Ultimately, an eleventh-hour fall-out between the ANC and EFF over what state ownership of land actually entailed meant the constitutional amendment failed to reach the required two-thirds majority of 267 yesses in the House. The vote of 204 for and 145 against on 7 December 2021 ended an almost four-year process from early 2018 to amend section 25 of the Constitution.
Political will
All the while, amid Parliament’s unprecedented series of countrywide public hearings, compensationless expropriation emerged as shorthand for redress for land dispossession, and the public debate often sharply highlighted that all the measures needed for land reform and redistribution were in place, except for the governing ANC’s political will.
Wednesday’s debate on the Expropriation Bill showed how steeped this remains in calls for redress over land dispossession of black South Africans. Restitution and redistribution for economic activity and development also remain hot-button issues.
However, South Africa has fallen short of its dawn of democracy target to redistribute 30% of the land. More recently, since 2020, efforts to accelerate land redistribution to emerging farmers through the 30-year lease proactive land acquisition programme seem to have fallen flat.
Challenges
While 1,672 farmers were allocated 1.73 million hectares, according to a recent parliamentary reply from Agriculture, Land Reform and Rural Development Minister Thoko Didiza, the programme experienced challenges from the underutilisation of the land because of a lack of money for input and operational costs, inadequate infrastructure, lack of market access for what farms produce, the inability to pay rent and for basic services like water and lights, and also land invasions by neighbouring communities.
None of these issues is necessarily new — a lack of post-settlement support was also raised at the 2018 parliamentary public hearings on whether to amend section 25 of the Constitution.
But Wednesday’s adoption of the Expropriation Bill came a day after another potential key land-related draft law — the Land Court Bill that establishes a specialist court equivalent to a high court to assist in the speedy adjudication of all land-related matters.
As labour federation Cosatu said in a statement on Wednesday, “The federation hopes this [Land Court] Bill will help alleviate the perennial delays countless land claimants, farm workers, labour tenants and their families face when lodging land restitution or farm evictions cases.
