Dr Anthea Jeffery and Terence Corrigan, among others in the pages of the Daily Friend, have at length explained in detail why the so-called “Expropriation” Bill is a dangerous piece of legislation. What I’d like to draw attention to is the meta environment the Bill finds itself in: the purpose and nature of expropriation law itself. Once this is understood, it will be clear how the Bill is misnamed and, as a result, misconstrued.
Last week, the National Assembly adopted the Expropriation Bill and referred it to the National Council of Provinces – which is all but guaranteed to adopt the draft. It will then be sent to the President for assent.
Expropriation is a legal institution as old as constitutionalism itself. A government would not be a government if it did not at some level possess the power to set aside the rights of the individual so that it may fulfil its core mandate. What that core mandate is differs depending on who you ask – but if you ask a liberal, the answer is that government must direct all its efforts to the protection of freedom and property. And in pursuance of this goal, it may conceivably have to take private property.
Here one thinks of a government perhaps seizing property that borders on an enemy state during a time of war.
When approached from the perspective of pure legal theory, then, there is nothing untoward about the institution of expropriation. There are, however, some things that must be understood about it.
Compensation and the difficulty of expropriation
When the institution was first articulated by the legal thinker Hugo Grotius, he immediately noted that government takings of property must always correspond with the payment of compensation.
In On the Law of War and Peace, wherein Grotius coined the term eminent domain (by which expropriation is still known in places like the United States), he wrote that “the State is obliged to repair the Damages, sustained by any Subject on that Account, out of the publick Stock” and that “the State [shall not] be released from this Obligation,” even during wartime.
The legal theorist Susan Reynolds, in Before Eminent Domain, even argues that before Grotius wrote his text in 1556, it was simply assumed – in parts of Africa, no less – that land may not be seized without compensation.
Compensation is ingrained in the very concept of expropriation, so much so that to speak of expropriation is to necessarily imply compensation. Confiscation, dispossession, taking, or seizure is rendered into expropriation when there is compensation. “Expropriation without compensation,” in other words, is a contradiction in terms.
Expropriation is, also, not meant to be a preferred tool of government. The institution itself is never to be embraced as a social good. In fact, it is an inherent evil, which is why it does not only involve the payment of compensation for the loss, but also often payment for inconvenience – so-called solatium.
This makes sense, as property is not only financially valuable to owners. It represents other forms of value as well, like sentimental value – or it might represent an important family heirloom central to that family and its members’ dignity.
Solatium, then, is the State’s way of acknowledging that it is perpetrating a grave injustice against the property owner, and that it hopes it can make up for that injustice by paying the owner more than the market value of the property.
Expropriation must never be easy to pull off, precisely because government must only be able to utilise it when strictly and absolutely necessary. As a necessary evil, it may not be wielded lightly.
Finally, and perhaps most importantly, expropriation as a legal institution is not meant to be an institution of punishment.
When someone has done something wrong, the law commands that they be dealt with by the law of obligations (delict, tort) or criminal law. Here, various safeguards ensure that innocents are able to acquit themselves of wrongdoing. In the case of crimes, the requirement of intention is a crucial safeguard.
Expropriation is not a part of either the law of obligations or criminal law. Expropriation is what the State does when it requires certain property to provide for a social improvement in line with its core mandate. It does not punish the owner, hence the solatium.
This can be explained with an analogy.
As a family grows poorer, it might decide to move its minor son out of his room so that he can share with a sibling, because the parents require his former room as a workspace to generate additional income. The son has done nothing wrong. He is not being punished. In fact, taking his room has nothing to do with him, rather it is all about doing something necessary to safeguard the interests of the family.
A good family might compensate the child for the loss in some way.
Expropriation law and the Expropriation Bill
The Expropriation Bill does three things that exclude it completely from forming part of expropriation law:
- It makes the taking of private property a preferred instrument of government. It is not regarded as a necessarily evil but as a desirable good that must be freely and easily wielded by unconstrained executive officials.
- At best, it makes compensation an optional “generosity” (rather than a required imperative) that the government might bestow when it seizes property.
- Finally, it makes property seizure an institution of not merely individual punishment, but of collective punishment for crimes both real (in cases of land claims where specific property has been identified and historical theft proven) and imagined (in the case of appeals to “the land” as an abstract “stolen” thing by one race group from another).
The so-called “Expropriation” Bill is, in fact, the Confiscation Bill or, in understood South African terminology, the Dispossession Bill. This law does contemplate expropriation, but also introduces confiscation, the latter of which government clearly sees as the more desirable option.
By continuing to speak of the “Expropriation” Bill as if it only contemplates expropriation, we are unwittingly clothing it with jurisprudential and constitutional legitimacy. This ought to be avoided: the Bill contemplates dispossession and confiscation – robbery under the guise of law – both phenomena that the Constitution neither recognises nor condones.
The current discourse around the Bill makes it clear that government seeks to use it as an instrument of punishment for the “original sins” committed by the long-dead ancestors of a collective group. Current owners are treated as indistinguishable from the police officers or colonial officials that invaded land centuries ago and removed the families who were living there. Because they occupy “stolen land” (whether they know it or not – their mens rea is irrelevant) they must at best receive below-market compensation and at worst are entitled to no compensation – certainly no solatium –whatsoever.
Clause 12(2)(a) of the Bill, then, provides that no solatium is payable. In other words, it does not simply remain silent on solatium (which would have repealed it) – the drafters went out of their way to write that the fact that the expropriation is involuntary may not be taken into account when determining the amount of compensation. And clause 12(3), of course, provides that compensation per se is entirely optional – it is the provision that provides for so-called “expropriation” without compensation.
The South African government, in other words, is clearly signalling that it does not regard the institution of “expropriation” as an injustice that must ideally never be wielded and if it is wielded, only very sparingly and with much apology. The government embraces expropriation as a normal tool in its arsenal of victimisation.
The Bill also makes it dangerously easy for government to confiscate, even when there is compensation. Clause 17(3), to take only one example among many others, provides that owners must transfer their expropriated property to the government even when they have not yet been compensated. The delay in the payment of compensation is therefore no reason to hold onto one’s property.
The government, then, takes the owner’s most important leverage away, opening the door to people being left penniless for extended periods of time after their property – often the generator of their livelihood – has been seized.
Expropriation law necessarily presupposes that it must be very difficult, legally, for a government to expropriate property, because expropriation is inherently meant to be a measure of last resort that governments do not (should not) wish to rely upon. The law recognises that expropriation may be necessary but that this must only be under exceptional circumstances, and then, of course, the owners being expropriated are not targets or victims but innocent bystanders, and as such must be compensated, not only at market value but above market value – solatium – given the inconvenience and damaging disruption caused to their lives by no fault of their own.
The Bill falls hopelessly foul of this standard and, as such, ought not be recognised as part of the law of expropriation.
If the Bill is not an instance of expropriation law, it is by its very nature unconstitutional. Section 25 of the Constitution does not bestow a general power of confiscation upon government. When the government takes property from anyone, the only way the supreme law allows it to do so is by expropriating that property. The Bill – as a dispossession or confiscation law – does not in the main deal with expropriation.
If it is properly construed, thus, it is invalid and dead on arrival.
How does one deal with stolen land?
With all this in mind, it is worth asking how stolen land must, therefore, be dealt with in a situation like South Africa’s, where historical dispossessions have not all yet been rectified. It is assumed that the Expropriation Bill (or even constitutional amendments), with a penal character, is the answer, but it is not.
The common law has long recognised the remedy of rei vindicatio. This allows real owners of property to claim their property back from others who unlawfully possess it. This common law institution is not neatly applicable to events separated by decades or centuries, which is why the Restitution of Land Rights Act was introduced in 1995.
This law, closely mirroring the spirit of the rei vindicatio, allows real owners, through a judicial process, to claim their property back.
The current owners, of course, must be compensated, because they do not possess a guilty mind – they are not guilty of a crime or delict. They have done nothing wrong. To suppose that they are entitled to no compensation, or even consideration, is to completely misunderstand the vital role that law plays in society to safeguard peace, order, and justice. Innocent persons cannot – may not – be punished for crimes they had no hand in perpetrating.
Therefore, while the real owners – the claimants – have an entitlement as a matter of justice to receive their property back, the current owners – the possessors – have an equal entitlement as a matter of justice to receive full market compensation plus solatium.
Strengthening, not undermining, private property rights
The Restitution of Land Rights Act can, of course, be improved. The Commission on Restitution of Land Rights has in the past inflated claims and allowed claims without basis to be gazetted. This undermines the legitimacy of the process and casts doubts upon the veracity of bona fide claims. In proudly South African fashion, cadres in the Commission have also skimmed from compensation payments.
The Land Claims Court, too, must be capacitated with funding and with additional judges, so that claims can be dealt with swiftly and expertly, according to accepted rules of evidence. A well-functioning, impartial, and swift court breathes real legitimacy and veneration into an institution. But this means the ill-considered Land Court Bill must be abandoned, as it seeks activist judges and accessors to play fast and loose with property rights as a general concern.
The Institute of Race Relations has noted concerns with amendments to the Restitution of Land Rights Act. It is very important for such a law to be fully compliant with the Constitution and with the logic of private property rights.
Secure private property is a prerequisite if South Africa hopes to prosper in the future. If the ANC-EFF government that is destroying the economy today will not shelve the dangerously misnamed “Expropriation” Bill, then it is up to the coalition of opposition parties that will govern after 2024. They must align their intentions to immediately do away with this law if it is adopted, and replace it with a legal regime that treats property rights with the necessary care and deference.
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