As the year winds down, and with it emotional and intellectual energy, it is important not to forget that politics and governance continues apace. Indeed, it is at this time that a window opens for governments to push contested agendas that might otherwise encounter spirited resistance.

This is the case with the Expropriation Without Compensation agenda. Next week, the National Assembly is scheduled to consider the proposed amendment to the Constitution – an odd time of the year for such a monumental decision.

Alongside this, the Expropriation Bill creeps forward. While lacking the public profile of the constitutional amendment, this is arguably an even more important development in the progression of EWC. The constitutional amendment would determine what is permissible in terms of the relationship between the state and those subject to it; expropriation legislation will supply the systems and processes to implement the policy.

The latest development in the Bill’s progression is the appearance of a document dated 17 November, which purports to set out the outcomes of the public participation process.

Public participation

As I’ve noted previously, public participation is a constitutional duty. It gauges support for a given measure. It is a statement of the ability of the country’s citizens to contribute to their own law-making and governance. It is also an opportunity to inspect proposed legislation from different perspectives to identify potential problems. For matters of profound importance – as, in this case, the state’s ability to take people’s property – public participation (and taking it seriously) is of redoubled importance.

Unfortunately – as I have also described – public participation processes do not always live up to these ideals, whether in South Africa or elsewhere. Such processes exist along a continuum from outright manipulation through to proper citizen control. Participation – or rather ‘participation’ – can be used to legitimate a pre-ordained outcome.

This document is in parts good and fair. Despite the official enthusiasm for empowering the state to take property (and accompanying claims from politicians and commentators that this is an insistent public demand), it notes that by some considerable margin, the weight of submissions was opposed to the Bill (only the provincial hearings seem to have produced a majority in favour of it). In large measure, this reflected the sentiments of email submissions, often off the templates of organisations campaigning around the Bill.

The report took a rather cynical view of this approach:

Individual submissions from the public contain the views of a few organizations that ran active online campaigns with block email messages that prompted individuals to make email submissions in their individual capacity – in other words, the over 100 000 submissions unfortunately do not represent a wide variety of views from the South African society on the EB 23 of 2020.

Since the Institute of Race Relations was one of these organisations, it’s important to respond. We have opposed this Bill, and campaigned hard to communicate our concerns. We offered a template for ordinary members of the public, who are not skilled in articulating policy positions. In doing so, they lent their very citizenship to this cause – in other words, we offered a means to empower them. This, we would submit, is the very essence of public participation.

The report itself devotes pages to highlighting concerns raised by the submissions. It’s not clear that the report provides much more than a flavour of the various inputs, pro and anti.

Outside the ambit

More intriguing though is that pages and pages of these are headed ‘Matters outside the ambit of the Bill’. While it is fair to note that submissions may have raised issues of no relevance to the bill, it should equally be acknowledged that public concerns are not limited to the wording of clauses, but to what they imply for the country.

The report, for example, discusses under the ‘matters outside the ambit of the Bill’ the question of land reform. ‘Submitters from the organised agricultural sector viewed the bill as a proposed tool to forward land reform, which some argued has been a failure to date.’ It’s not entirely clear what this means. Are the submitters arguing that the Bill is needed to advance land reform, or that it forms part of a land reform push that will fail because of weaknesses in the system as a whole? Nevertheless, land reform has been central to the debate around the Bill. The page on Parliament’s own website dealing with the Bill foregrounds the issue.

‘Why the Expropriation Bill?’, it asks.

‘The Bill is a review of the Expropriation Act 63 of 1975,’ it continues, ‘emanating from a Cabinet approval of 15 September 2004. For many years, expropriation of land and land reform in South Africa has been a contentious issue and has necessitated a review of current expropriation laws … Local, provincial and national authorities will use this legislation to expropriate land in the public interest for varied reasons that seek to amongst others, promote inclusivity and access to natural resources.’

Moreover, the Public Participation document does at times stress the importance of land reform. This is highly confusing.

Other issues ruled to be beyond the ambit of the bill include ‘economic implications’ and ‘corruption’. These are rather breath-taking exclusions. Corruption is not only one of the top public concerns – as evidenced by any number of opinion polls – but its impact has been debilitating. Research into the costs of state capture has come up with a number of R1.5 trillion over five years. More concerningly, corruption has done enormous damage to our institutions. And here a Bill proposes extending state power. Corruption and abuse of sweeping new legislative powers is a near certainty.

Concern was raised

In fact, this concern was raised in the Socio-Economic Impact Assessment – which also surfaced earlier this year. That document noted concerns that ‘Government officials may abuse the powers in the legislation.’ It went on to wave this away by saying: ‘The apprehension appears to be misplaced. There are sufficient checks and balances in both government policy and different legislations [sic] to keep the issue in check. Continuous rights & obligations advocacy drives should be used to get persons to know the relevant legal instruments.’

It seems that South Africa’s people are less sanguine about these risks. Checks and balances, after all, mean little when they are ignored.

Similarly, the economic implications are deemed beyond the ambit. This is utterly incomprehensible for a country experiencing what must rate as among the worst economic performances (if not the worst) since the constitution of South Africa as a state. Nominally, no issue is of greater concern to the government than increasing investment, creating employment, and raising living standards. If there are concerns that this Bill will adversely affect these objectives, they need to be raised and considered. It’s difficult to see what purpose public participation would have if they are to be dismissed.

Once again, the SEIA document was glowing in its evaluation of the economic benefits that would flow from the Bill: ‘The proposed measure seeks to facilitate access to land on a non-discriminatory basis related to gender, sex, age, disability, religious belief and political affiliation [and] has the potential to reduce unemployment, poverty, homelessness, criminality and morbidity. The benefits thereof would be the promotion of entrepreneurship, food security and productivity of the nation in general.’

Little engagement

It’s something of a mystery as to why this positive picture could be depicted in one document, yet a more sober assessment deemed beyond discussion in another.

More than this, particular issues are simply not addressed in any substantive manner. There is little engagement with key concerns that arise directly from the wording of the Bill regarding bonds, the expropriation process and its constitutionality, the role of the courts in deciding on compensation, where the onus of proof in such litigation will lie, and the vagueness of the incomplete list of circumstances in which ‘nil’ compensation may apply.

In its conclusion, the report states: ‘It is recommended that the Portfolio Committee adopts the Expopriation [sic] Bill [B23-2020] public participation as a true reflection of inputs received fro [sic] the public while processing this piece of legislation.’ This does not hold up to scrutiny. This is a report that provides at best a partial and possibly selective view into the insights gleaned from the public participation process.

Given the potential implications of this Bill, these shortcomings are disturbing. 

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Terence Corrigan is the Project Manager at the Institute, where he specialises in work on property rights, as well as land and mining policy. A native of KwaZulu-Natal, he is a graduate of the University of KwaZulu-Natal (Pietermaritzburg). He has held various positions at the IRR, South African Institute of International Affairs, SBP (formerly the Small Business Project) and the Gauteng Legislature – as well as having taught English in Taiwan. He is a regular commentator in the South African media and his interests include African governance, land and agrarian issues, political culture and political thought, corporate governance, enterprise and business policy.