The Expropriation Bill of 2020, which is essentially the same as its 2019 predecessor, was gazetted last week. It is intended to supplement the EWC (expropriation without compensation) constitutional amendment bill, which is now being rushed through the final stages of the public consultation process so that the Ad Hoc Committee can present it to Parliament for adoption before the end of the year.

Even without the EWC constitutional amendment bill, the Expropriation Bill (the Bill) will allow property of many kinds – not only land – to be confiscated by municipalities and other organs of state for no or inadequate compensation.

According to the Bill, ‘it may be just and equitable for nil compensation to be paid’ for expropriated land which:

  • is unused but is being held in the hope of it’s appreciating in value over time;
  • has been ‘abandoned by failing to exercise control over it’;
  • poses a ‘health, safety, or physical risk’ to others’;
  • is worth less than the state subsidies from which it has benefited; or
  • is owned by a state-owned entity which is not using it and consents to the expropriation.

This list, with its five examples, is intended to reassure South Africans that EWC will be sparingly used and justifiably applied. However, the circumstances in which ‘nil’ compensation may be paid for land are expressly ‘not limited’ to those set out in the Bill. They may thus extend far beyond this short list.

The Bill also empowers all municipalities – along with various other state entities at higher levels of government – to expropriate land and other property by following a set of specified procedures. These procedures are heavily skewed against the owner and in favour of the government.

Under the Bill, a municipality which wants to expropriate residential or other land – say, to reduce spatial apartheid and build RDP houses – must begin by investigating the property and negotiating for its purchase with the owner. If no agreement is reached, the municipality may issue a notice of its intention to expropriate. In this document, it must invite representations on the proposed expropriation and the compensation to be paid. The municipality is obliged to consider any representations received, but it need not respond to them or give reasons for rejecting them.

Preliminary steps

Once it has taken these simple preliminary steps, the municipality may issue a notice of expropriation. Under this notice, both ownership and the right to possess the property will automatically pass to it on the dates set out in the notice.

The date for the transfer of ownership could be a mere week after the service of the notice (the only time limit in the Bill is that this date ‘must not be earlier than the date of service’ of the notice). The right to possess the property could pass to the municipality within another week.

The owner may seek mediation or apply directly to the courts to challenge the validity of the expropriation (whether it is really ‘in the public interest’) and the amount of compensation offered (if this is truly ‘just and equitable’). However, most people will lack the means for such legal challenges and will find them particularly difficult to mount if they have already lost ownership and possession of their homes or other key assets.

Expropriated owners will also, it seems, bear the onus of proving that the compensation offered is insufficient – and may have to pay much of the municipality’s legal costs, as well as their own, if they fail to convince the presiding magistrate or judge of this.

Expropriated owners will also be able to seek relief in the courts if the compensation remains unpaid for months (or years) after ownership and possession have passed to the municipality. They will likewise be able to raise administrative justice objections if the time between the service of the expropriation notice and the passing of ownership and possession is unreasonably short. In practice, however, most people will again lack the means for such litigation.

Fewer rights than criminals

Under the Bill, law-abiding home owners will have fewer rights than criminals illegally using a warehouse they own to store heroin and other drugs. Though the warehouse may be seized by the state, this can be done only after its use for criminal purposes has been proved and a court order for its confiscation has been obtained. But a home can be expropriated by a municipality by following the simple steps set out above – and without ever having to prove to a court that the expropriation is really in the public interest or that the compensation is truly just and equitable.

Perversely, the Bill acknowledges the need for a prior court order before a municipality can enter on to property it wants to investigate with a view to subsequently expropriating it. It also says that a temporary expropriation cannot be extended without a prior court order. But when it comes to the far more serious matter of a permanent expropriation, the Bill excludes the need for a prior court order.

Allowing municipalities and other organs of state to expropriate property in this way is clearly unconstitutional. By excluding the need for a prior court order confirming the constitutionality of a proposed permanent expropriation, the Bill contradicts:

  • Section 25 of the Constitution, which lays down important criteria for a valid expropriation;
  • Section 34, which gives everyone a right of access to court; and
  • Section 33, which guarantees the right to administrative justice.

Where the property expropriated includes a person’s home, the Bill also contradicts Section 26 of the Constitution, which requires a prior court order before eviction can occur.

Enormous ramifications

The Bill has enormous ramifications for the 1 million white and 8.7 million black South Africans who own houses, as well as for the roughly 17 million black people with informal rights to plots held in customary tenure. All these individuals will be vulnerable to expropriation by cash-strapped (and often corrupt) municipalities and a host of other state entities. Most will be unable to resist these takings, irrespective of whether they are constitutional or not.

Often, moreover, even the limited procedural safeguards set out in the Bill may not be fulfilled in practice. In the Groutville area of KwaZulu-Natal, for instance, the 3 000 or so hectares of land that Bheki Dlamini had inherited from his great-grandfather – and to which he had finally obtained the title deeds in 2002 – were expropriated in March 2013 by the KwaDukuza Local Municipality in return for R117 000 in compensation, which was offered but not paid. (Mr Dlamini claimed his house alone was worth R550 000 – while a much smaller 240 ha farm is currently on sale in nearby Stanger for R16m, though its value may not be fully comparable.)

The expropriation was carried out under the current Expropriation Act of 1975, which requires both prior investigation and the service of a notice of expropriation on the owner. However, the municipality failed to serve a notice of expropriation on Mr Dlamini (though it later said that it had held four public meetings in the area and advertised its intention to expropriate in the Natal Mercury on 2 February 2012). In December 2013, some nine months after the expropriation had taken place, Mr Dlamini heard rumours that his property was among some 50 plots that had been expropriated to make way for a new housing development.

He started asking the municipality for relevant documents, but his requests were repeatedly ignored. Some months later, he went to the deeds office in Pietermaritzburg, which confirmed that his property had already been registered in the municipality’s name. However, it was not until December 2015 that Mr Dlamini, through his attorneys, finally received a copy of the notice of expropriation.

Further confusion

In December 2016 – after the municipality had caused further confusion by claiming the expropriation had been carried out by the provincial housing department – he applied to the Durban high court to have the expropriation set aside. However, his application was dismissed in July 2019 on the procedural point that he had failed to act quickly enough or sufficiently explain his delay.

The municipality’s confiscation of land his family had owned for generations thus remains intact and Mr Dlamini has been left without a remedy – unless perchance he can successfully appeal against the high court ruling.

When the new Expropriation Bill was gazetted last week, Deputy President David Mabuza claimed that it will ‘address the injustices of the past and restore land rights’. In fact, the Bill is a draconian measure that can be used to strip millions of South Africans of their homes and other assets without the prior court orders, fair procedures, or equitable compensation that the Constitution requires.

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28 COMMENTS

  1. The interesting thing is that this will render all properties worthless and thus when the muni comes to collect rates, one can simply say that the the property has no value any more and they x.x% rates on the fixed property amounts to 0?
    I am curious to see how this plays out as it renders all fixed assets worthless overnight. Should also dent that mooted wealth tax as a lot of wealth is tied up in fixed assets which will have no value.
    As usual the dunderheaded idiots have no clue of the ramifications of their stupid actions.

    • Sadly these power hungry and money greedy nobheads couldn’t give 2 shits on any ramifications, as long their cronies can profit in the billions if rands, till stuff all is left.

    • There are two essentially different valuations on residential property: Market value (related to a putative “willing buyer – willing seller” scenario) and a Ratable (taxation) value, on which taxation is based and which is a thumb-suck figure dreamt up about once every five years by the local municipality. There is a pretence that the two should agree, but that is seldom borne out in practice.

  2. There is a tendency in SA that, if you can’t eat it or steal it, destroy it! I am of the opinion that this is another way of stealing!

  3. Welcome to Zimbabwe! Yes, it happened there and will happen in South Africa, unless enough voters get rid of the the ANC and others, hell-bent on grabbing whatever they can, from wherever they can! As happened in Zimbabwe, one family of Portuguese descent packed up and left, as the land-grabs started. One of them commented “This is Angola, all over again”.

  4. I think it was Churchill who said something like “this is the end of the beginning or the beginning of the end”. It would apply appropriately to this situation depending of where in the hierarchy you sit.

    To me it’s as clear as crystal that it’s not good for anyone. It’s all downhill from here!

  5. Firstly I am concerned because EWC originates from the EFF and a less reputable source is hard to imagine!
    Secondly I question the necessity of such a new and draconian law as expropriation was done perfectly easily and reasonably in the past. Why tamper with something that works perfectly well beyond minor adjustments?
    Finally, and the worst of all, how can absolutely corrupt and disfunctional entities like the typical municipalities be entrusted with such massive powers!? This is insane! What will stop these buffoons from selling property once they have taken ownership?
    The whole mess boggles the mind of any thinking person.

    • Therefore! Those “buffoons” will eventually ‘choke’ on what they may try to “bite off more than they can chew”. So do not fret, dear Sir.
      Quote: “He who digs a hole for someone, will himself fall into it”.
      ‘Take heart’ !!! 👍😙💖

    • It never ceases to amaze me that ever every time you mention the EFF that everybody in this country ( including SAPS , SANDF & our fearless leader )
      goes into a complete shock & starts pissing in their pants, JM certainly must Qualify as the most feared man on earth ?

    • Rest assured, EWC does not originate from the EFF. That would imply that there is original thought within their ranks. It’s an old communist tactic, and they obtained it second hand and third rate. Same place where the ANC got it: Russia and China. And what do they want to do? Strip Africa of its resources. The track record of government, whether pre or post apart hate, expropriating land, speaks for itself. Ask the tribe in Mpumalanga which saw a soccer stadium built on their land if they had all the promises from government fulfilled. Spoiler alert: They are still waiting for government to play nice, but really, they will. They need this draconian power, but promise they won’t use it for evil. Right..

  6. As has been the comments from many people before that the Government “ANC” is just a common bunch of thieves that have no interest in people and their rights or have no idea how a government should operate and build an economy that can sustain its Citizens with opportunities to develop and grow the income and thus pay taxes to fund Government.

  7. In 1970 the Subdivision of Agricultural Act was passed. This Act was repealed in 1998.Mabuza claimed”it will address the injustices of the past…..” Now what about those heirs/children that did not inherit because only ONE heirs received the farmland due to this Act??

  8. Thank you for an informative article. In my humble opinion there are conflicting interests at play, as there have been for centuries. And yet the parties may not be that far apart from each other.
    On the one hand the state, including municipalities, needs revenue, and its not getting enough – corruption only accounts for some of the shortfall. Prohibitive income taxes and other taxes on production are not doing it. And the state needs land for housing, but cant afford the price. And a lot of land is underused and held for future profit. Which contributes to the unjust withholding of the primary ingredient (land) for the production of wealth at any level.
    On the other hand, as Stephen points out, the bill will wipe out value. Which value is needed as a basis for an important part of state revenue, being property taxes.
    Both sides need to be cognicant of a 3rd way.
    Which is to realise that the only real value lies beneath our feet, and it becomes valuable because of all that is done on it and added to it to aid in the production of wealth. And it has degrees of value because of inherent fertility and access to water, but mostly because of location.
    The state is finding that taxes are dwindling, because of the flight of high earners from this country. And because of the punitive effects on enterprise at any level, of VAT. It just gets worse and worse and less and less, and the demand for welfare gets more and more. Its a vicious cycle.
    The 3rd way is to realise that in economic terms there is an increase in value, due not to any individual, but due to the enterprise of the whole community at a local level, including infrastructure and services provided by the municipality and other organs of local and provincial government, and the people of the whole nation, at a national level. This increase in value is that which is in excess of the value created at the margin. The margin is where inputs of work and capital are equal to earnings. That is, no profit. Where inputs exceed earnings the enterprise operates below the margin. Like somebody manufacturing chairs for example, where materials, labour, Vat, fuel, company tax, and rent to the landlord, exceeds what he can get for selling the chairs. It may be that the less than favourable location of his business makes transport costs the straw that breaks the camels back. Thats below the margin, and its due to location. But a fast food outlet for example, located in a place that has high numbers of feet past the door, and when the costs and the income are totalled up, finds itself viable. Thats above the margin. The difference is location and the quantum of the difference is added economic value that is not due to any individual.
    It was always the contention of the classical economists that this added economic value, based as it is on land value, should form the basis of state revenue, and this practise was followed in various degrees for centuries.
    The neo classical economists, who came along after Henry George spooked the landlords, said that land is just a commodity, or part of capital, and should not be considered in a class of its own. And so the collection value from the locational value of land (or value capture, as some have aptly called it) has dwindled as a means of revenue collection. Most cities in SA did well from a form of it for many decades – they rated the unimproved value of the land at a higher rate than the building on it. The ANC stopped it at some point, believing it better to lump the two into one total amount to be rated. Meaning that it became viable to hold land undeveloped, against a future profit on its sale, because the total value was less.
    So now the ANC, perhaps realising that there is publicly created land value slipping out of its (that should read the ‘states’) hands into private pockets, wants to rectify the situation in which they can do nothing about unused and underused land, which land they could, assuming altruistic motives, use for the benefit of the people.
    So instead of expropriating land, that portion of the economic value of land created by the ‘people’ (meaning the general public and the local and national government and its agencies) should be ‘expropriated’
    Then free enterprise can flourish, and security of tenure can continue, and indeed be improved. It needs a concomitant reduction in income tax and Vat to be revenue neutral. Revenue neutral, yet increasing prosperity. A virtuous cycle.

  9. The Anc is a useless , corrupt , racist and incompetent government.They are hell bent in destroying the economy so that they can implement their socialist and communist ideology. They have destroyed everything in this country that was built up in the last 100 years , roads , health , education , police , judiciary to mention a few . Everything the Anc in is charge off turns bankcrupt , Sassa , Denel , Post office , Transnet , SAA , Sabc and 90% of all the municipalities again to mention but a few. Ongoing mass corruption , theft , bribery and misappropiation of tax money has left our country in a bankcrupt mess. This new act of stealing property is the last grasp of the straw to stay in power but will be met by utmost resistance where people protect their rightfull property and families.

  10. A question for Dr Jeffery: SA is a member of UN, and, as such subject to numerous international laws, so, we should be able to approach international courts in case our courts treats us in unjust way?

  11. At the start of this Brave New World in 1994, when we were all filled with wonder at the glorious idea of a non racial South Africa where we would all pull together for the common good, any concern about minority rights attracted something like: “Never fear, your rights are protected by the judiciary”. They don’t add “”if you have a million or more to spend while the State uses your money to litigate against you”. Watching the spectacle of the Western Cape bench run its nauseating course does not fill me with confidence. Reading judgements which seem (perhaps confirmation bias?) overtly political, or unrelated to the law, my once high regard of the judiciary is well shaken. Funnily enough, a relative, then packing for Perth (as they say), many years ago now, told me I had rocks in my head for staying. He’s done well and his government does not set it sights on theft of his property or make laws that it make it hard for his children to find work. I raised the PAJA Act with a bureaucrat quite recently – they didn’t bother hiding the smirk, the law is what they say it is…

  12. Good job! I was waiting for Daily Friend to update us on the latest insanity from land theft oops I mean expropriation without compensation. That bill has expired. Why flog that dead horse and dance on the millions of corpses of Zimbabweans and Venezuelans and Cubans, mind you, now?

    The deadliest phrase in modern history regarding any socialist/communist mentality, which is of the calibre that would feel the need to point out that it’s meaningful in any way that there is a difference between the two: This time will be different.

  13. That that is unused but is being held in the hope of its appreciating in value over time? None of the state’s business. What about the Ingonyoma Trust and the 1/3 of KZN that is held in not much more but hope?

    Land that has been ‘abandoned by failing to exercise control over it’? Like quite a few keynote sites?
    Land that poses a ‘health, safety, or physical risk’ to others’? That is every property occupied by our dear leaders. They pose health, safety, and physical risks to us.

    Land that is worth less than the state subsidies from which it has benefited? Oh, so reward par for course incompetence and institutionalised corruption with land?

    Land that is owned by a state-owned entity which is not using it and consents to the expropriation? Oh, so why the need to expropriate land that the state already owns?

    This is theft writ large and they are not even trying very hard to conceal it. And they must understand one thing: They are not going to take land without civil war.

  14. The actions of thieves even when cloaked in law remain theft. The purpose of the law is to put a societal brake on individuals, or the State, behaving arbitrarily with regard to individual citizens. Such laws as this one fatally abuse the intention of the system of laws.

  15. I note you use the word Or between the last two circumstances under which EWC will take place. In the document I read online the bill actually has the word “and” not “ or” which gives a different meaning.

  16. Stealing and thieving was an ancient practice of tribes and barbarians. It was once considered honourable and brave to steal from enemies. It is why they the ANC think in this way.

    It is simply an attempt to use legal plunder to steal.

    I hope there are some legal minds that will take this reckless bill to the apex court… if of course those who can make the just decision can be trusted, which unfortunately seems not to be the case.

  17. It is time to go to the UN (WHO was instrumental in GIVING our country away) and ask the following question ”is the stifling of a minority not a CRIME AGAINST HUMANITY?”
    If not, do what the RUSSIAN’S did in WW11 – BURN the land……….

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