In pushing ahead with expropriation laws providing for ‘nil’ compensation in wide-ranging circumstances, the South African government is ignoring the distilled wisdom of centuries – as reflected in customary international law, regional human rights treaties, and the constitutions of several African states.

South Africa’s Expropriation Bill of 2020 – which is open for public comment until 10th February 2020 – provides for ‘nil’ compensation on land expropriation in five listed instances. However, the circumstances in which ‘nil’ compensation may be paid are expressly ‘not limited’ to those set out in the Bill, so no one knows how far ‘nil’ compensation may in practice extend.

The country’s Draft Constitution Eighteenth Amendment Bill of 2019 – which is likely to be endorsed by a parliamentary Ad Hoc Committee by the end of March 2021 – is even more opaque as to when ‘nil’ compensation will apply to land and the improvements on it. Instead, it gives Parliament a blank cheque to enact any number of new statutes setting out the ‘specific circumstances’ in which compensation for state takings may be ‘nil’.

By contrast, customary international law requires, at the very least, that compensation on expropriation must be ‘appropriate’, ‘fair’, or ‘just’. Many legal experts would argue that the relevant standard is higher still and that compensation must be ‘prompt, adequate, and effective’.

South Africa’s proposed ‘nil’ compensation provisions are also at odds with important treaties in other regions. The European Court of Human Rights, in interpreting the property rights provisions in the European Convention on Human Rights, has stressed that people deprived of their property must in principle obtain compensation ‘reasonably related to its value’.

The American Convention on Human Rights says that ‘no one shall be deprived of his property except on payment of just compensation’. The African Charter on Human and People’s Rights states that ‘the right to property shall be guaranteed’, which is more ambiguous. However, the ECOWAS Court of Justice (the judicial organ of the Economic Community of West African States) has interpreted this wording as requiring ‘the payment of just compensation’ on any expropriation.

Various African countries guarantee compensation on expropriation in their constitutions. In Botswana, for example, the Constitution identifies the right to property as a fundamental human right. It also requires ‘the prompt payment of adequate compensation’ for any ‘taking of possession or acquisition’ by the state.

According to the High Court of Botswana, ‘adequate’ compensation must aim at putting the erstwhile owner ‘back in the same position as he would have been had the land not been expropriated’.  Market value may thus be too narrow to capture the full extent of the loss.

The Constitution of the Gambia likewise recognises the right to property as a fundamental human right. It too requires ‘the prompt payment of adequate compensation’ on any expropriation or other dispossession.

The Constitution of Ghana uses essentially the same language in calling for ‘the prompt payment of fair and adequate compensation’ on any ‘compulsory acquisition of property by the state’.

The Kenyan Constitution also regards property rights as human rights. It too requires the prompt and full payment of ‘just compensation’ to any person deprived of property by the government.

The Constitution of Sierra Leone has similar provisions, and seeks to protect all persons against any ‘deprivation of property without compensation’.

Most of these constitutions also emphasise the importance of court adjudication. The Botswana Constitution, for instance, gives anyone with ‘an interest in’ affected property ‘a right of access to the High Court’. This court may rule not only on the amount of compensation but also on ‘the legality of the taking of possession or acquisition of the property’. A further key part of its function is to ‘obtain prompt payment’ of the compensation due.

There are similar provisions in the constitutions of the Gambia, Ghana, Kenya, and Sierra Leone. Yet in South Africa, by contrast, the Expropriation Bill tries to limit access to the courts in various ways.

The Bill allows a municipality or other expropriating authority to take ownership and possession of the property in question within a few weeks of a notice of expropriation being served – and even before paying compensation, if any. Once people are battling with the loss of homes, business premises, or other vital assets, most will find it inordinately difficult to embark on litigation.

The Expropriation Bill also makes litigation more daunting by putting the onus of proof on expropriated owners, who will have to pay the bulk of the state’s legal costs – in addition to their own – if their court cases fail. This risk makes litigation all the more perilous.

The government likes to pretend that there is nothing alarming in either the Expropriation Bill or the pending constitutional amendment. In doing so, it often points out that most countries have expropriation laws to help their governments secure land for roads or dams in the rare instances when other acquisition methods fail.

But this, of course, is ‘fake news’. What the government omits to mention is that most other expropriation laws limit and control state takings, if only by requiring the payment of ‘fair’, ‘just’, or ‘adequate’ compensation. South Africa’s proposed rules providing for expropriation without compensation (EWC), both in the Constitution and elsewhere, could not be more different.

The real purpose of these EWC provisions is not to turn land reform from current failure to future success – but rather to speed up South Africa’s transition from a free market to a socialist economy, as the National Democratic Revolution (NDR) requires.

The many commentators who have implicitly endorsed the ANC’s fake news on the benefits of EWC are also disregarding the distilled wisdom of centuries on the importance of property rights. Instead of standing up strongly for proven paths to prosperity, they are helping to push the country even deeper into hunger, despair, and economic implosion.

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