It’s perhaps somewhat counterintuitive, but what has become understood as the Expropriation without Compensation drive has never been entirely and solely about the ability of the state to take property without paying for it. 

True enough, that was part of it – perhaps one could call it a sort of ‘inner core’ of the policy – and an objective to be resisted.

But that objective was not to be seen in isolation. We at the IRR have repeatedly argued that what is at stake is property rights. The state moving in and confiscating property outright is not the only conceivable outcome, nor indeed the only possible danger.

The Land Court Bill, introduced last year, and the subject of oral presentations to Parliament’s Portfolio Committee on Justice and Correctional Services this week, is an example of this.

In intention, the bill is meant to ‘promote land reform as a means of redressing the results of past discrimination and facilitate land justice.’ It would replace the existing Land Claims Court, while becoming a specialist institution to deal with all ‘land-related matters as regulated by various Acts of Parliament.’ A number of existing statutes, dealing with restitution and evictions, for example, are already listed – and the Court will in all likelihood come to preside over land-related matters connected with the pending Expropriation Bill too.

The Bill appears to take as its point of departure the idea that land disputes need something akin to the Labour Court, and that a dedicated institution will be able to deal with the land reform malaise expeditiously. This tallies, of course, with comments from within the government and ruling party that court processes impose undue delays. 

This is doubtful. A great deal of evidence suggests that the problems besetting land reform, from a lack of title for beneficiaries to a lack of adequate support for them, go way beyond the acquisition of land. 

Should prompt reflection

The Bill itself contains several provisions, each of which should prompt serious reflection on ‘what this means for fair processes’.

The first of these concerns arbitration. The Bill requires that anyone ‘wishing to institute proceedings’ in the Land Court must inform the registrar, who passes the information on to the Judge President – who then decides if ‘the matter is to be heard in the Court or whether it should be referred for mediation or arbitration.

The Court would choose the arbitrator, while the state – which will have the right to intervene in any proceedings before it – will be able to veto any proposed replacement. The Bill then goes on to state that the decision of an arbitrator is ‘final and binding’ – and also, confusingly, that the registrar must refer such decisions (repackaged as settlement agreements) to the Court, which can then reject them. This makes something of a nonsense of the whole purpose of arbitration, which is to provide a mutually agreed platform for deliberation whose outcome all parties agree from the outset to accept.

Another issue is that when cases are heard, limited avenues for appeal will exist. A Land Court of Appeal will be established, to which appeals may be directed. Outside of this new system, only the Constitutional Court may hear appeals on judgments – the Supreme Court of Appeal would be excluded. Since Section 168 of the Constitution empowers the SCA to hear appeals on all except labour and competition matters, this will require a constitutional amendment. (This in itself suggests that the Bill has not been thought through properly.)

Besides, if the Labour Court is indeed a model for the Land Court, it is relevant that the former has exclusive jurisdiction over labour matters, but concurrent jurisdiction with the High Court in instances where the Bill of Rights is also an issue. It’s hard to see – not least in light of the past few years and the tortuous debates around the proposed amendment to Section 25 and the application of the ‘just and equitable’ principle – how much of the remit of the Land Court would not involve the Bill of Rights.

Could prevail over a judge 

In adjudicating cases, the Bill makes provision for the appointment of ‘not more than two assessors’ to sit alongside the judge. The assessors are empowered to help decide matters of fact (though not of law), and in principle two of them could prevail over a judge. The Bill says nothing about how they are to be appointed (this will have to wait for ministerial regulations), or what qualifications they will be expected to hold.

It is possible that such assessors might be appointed for their activist or ideological background; and that the questions of fact they would decide might include such matters as whether the owners of a property targeted for expropriation for ‘nil’ compensation – as per the Expropriation Bill – have in fact ‘abandoned’ or failed ‘to exercise control’ over it.

In addition, the Bill includes a potentially far-reaching and destabilising provision: that the Court may offer ‘hearsay evidence regarding the circumstances surrounding the dispossession of a land right’. It may ‘give such weight’ to hearsay evidence in this regard as ‘it deems appropriate’. This seems tailored to circumvent the complexities of establishing historical claims. One might be sympathetic to this dilemma, but it is hardly the stuff of a cynical imagination to fear that this could be horribly misused. 

In her presentation to the Parliamentary Committee, my colleague Dr Anthea Jeffery cautioned: ‘Under the Bill, the procedural dice are clearly to be loaded against expropriated owners and other rights holders, including successful land claimants from the first window period (prior to December 1998), who now face rival restitution claims from many others.’

All told, this is a proposal that should be regarded warily. Promising a route to tackle one problem, it stands to create a host of others. Meddling with our legal system might well create problems that extend far beyond questions of land.

Meanwhile, this Bill communicates the message that the EWC agenda continues.

The writer would like to acknowledge the excellent analysis of the Bill produced by Dr Anthea Jeffery and submitted to the Committee. The text of her presentation may be found here. The more detailed submission may be found here.

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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.