The final public hearings on the Expropriation (without compensation) Bill (EWC Bill) concluded on an average winter evening in central Cape Town.
There were five or so scheduled speakers, although some, like the Banking Association of South Africa representative, did not show up. Most attendants, about twenty from the public, were said to be there to complain about something else entirely. It was all over quickly.
This was nominally the last chance for formal public debate with the Department of Public Works and Infrastructure, which tabled the EWC Bill, a draft law that is poised to radically transform South Africa into another Venezuela. And yet, at times it had all the gravitas of a debate about whether to add a few holes to the local golf course. The Bill’s sponsor was represented in this case by Johannes Lekala, titled Deputy Director: Expropriation, but with the avuncular spirit of a Country Club Chairperson going over rather pleasing new membership numbers.
Mr Lekala was tasked with explaining how the EWC Bill turns out to be, ‘at the end of the day’, a reasonable, safe, and effective policy. But just because his job was impossible from beginning to end does not mean he did it badly. Just the opposite. He was erudite, clear, well-studied, and sympathetic.
Mr Lekala’s presentation reminded me of the charming, fictional civil servant who said, ‘My job is to carry out policy.’
‘Even,’ he was asked, ‘if you think it’s wrong?’
‘Almost all government policy is wrong,’ he gleamed, ‘but frightfully well carried out!’
That sketch comes from a made-up comedy, but the contrasting, unfunny, non-fictional thing about the EWC Bill is that it is going to chase away even more investment, harming jobs, prosperity, and basic functionality in this country. What about that?
Mr Lekala responded that his department had been briefed by another department on the EWC Bill’s risk to investment, referenced the Protection of Investment Act, the Constitution, the nature of things, spoke sharply against arbitrariness, warmly on the EWC Bill’s procedural protections, and effusively on the need for understanding all, to conclude with a confident flourish that ‘I can safely say that there can not be any negative impact as a result’.
So much leeway
Too late, I thought, just tabling EWC (in various forms) has been part of President Cyril Ramaphosa’s red dawn spooking investment. Additionally, I double-checked, the Protection of Investment Act makes no mention of ‘expropriation’, ‘dispossession’, or ‘compensation’. It does, however, include a vague catchall provision allowing ‘any organ of state’ so much leeway for ‘redressing historical…injustices’ by whatever ‘measures…necessary’ that it may be called on to protect land-grabbing government officials from investors rather than the other way around.
In practical terms, I asked if Mr Lekala had been briefed on any single country, or countries, enforcing peacetime EWC without harming investment? He responded in the negative.
This raised eyebrows amid the main crowd, about a dozen people, all coloured, who had come to demand title deeds. Some now face eviction after decades of renting flats from the government. One said she had been in her flat since 1948. Hard stories. Under the EWC Bill they would be in an even weaker position to dispute their evictions, or to draw compensation.
The cry for title deeds was, as usual, a howl in the wind. These members of the public were repeatedly told their issue was not the Bill itself. True enough, the challenges they face predated the EWC Bill and will continue without it. Still, those pleas for title were telling.
The basic value of the title deeds is about to snap. The EWC Bill says ‘where an owner has abandoned the land by failing to exercise control over it’ then ‘nil compensation’ may ‘be just and equitable’. That means loss of actual control leads to the loss of ownership in an arbitrarily brief fashion.
Property invasion
Of course in a zhoozh suburb like Kenilworth, Cape Town (where I stayed with a friend) it is unlikely that the mix of active citizens, electric-fenced compounds and private security would allow much property invasion. But only a foreigner could think that veld holders are the only owners exposed to invasion. I grew up in a major South African CBD and have toured former Bantustans so, like most South Africans, I have seen with my raw-rubbed eyeballs people ‘failing to exercise control over’ their own homes in the face of violent building invasions (abetted by lethargic or outright crooked cops). It is unsightly, but not unusual. Anyone who has been to a CBD outside Cape Town knows how it happened, and continues to happen.
Just to be clear, the EWC Bill turns building hijacks legit, ‘notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act. No 47 of 1937)’.
That matters because the 1937 law says ‘ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar’.
The EWC Bill scratches that and replaces it with a system that allows private thugs to grab land first and the state to grab title deeds thereafter. Nor is this a matter of squatter’s rights, or statutes of limitation from owners that have disappeared for the last three decades. The EWC Bill’s words are clear, and I quoted them clearly.
‘Like many here I strive to have a title deed one day,’ I said before reading the lost ‘control’ EWC clause. ‘But this bill means if I get there someone can still take my property and then the government can take away my title deed too. And if it doesn’t mean that, then what does it mean, please?’
Anxious applause
There was anxious applause in response to this question. Afterwards some of those aspiring to title deeds shared their worries. ‘Can you think? The day we finally get title deeds maybe they will be just worthless pieces of paper.
‘What,’ came the upward-looking prayer, ‘did we ever do to deserve this?’
Mr Lekala’s response to my question was lengthy, going through all the factors of the law, but it came to this assurance against the threat of titles grabbed ‘without compensation’.
‘Ours is not “without compensation”. It is “nil compensation”. There is a huge difference between “without compensation” and “nil compensation”, because “nil compensation” requires you to do an evaluation, whether [or not] you are going to pay compensation at the end of the evaluation. But “without compensation” means you are starting by saying “I am expropriating you for a public purpose or a public interest, but I am not paying you any compensation”. That’s the difference.’
The microphone crackles into a long silence after that.
On my second turn to speak I tried the human connection, teasing with Mr Lekala about crooks draining my bank account in the US once upon a time. ‘It says there are zero rands left in my account,’ I cried to the bank teller who replied, ‘Oh don’t you worry honey – the currency conversion was automatic, so you have zero dollars left in your account.’
To some it may seem that $0 really is better than R0. Not me, but what about Mr Lekala?
Mr Lekala found that very funny, as did many in the Western Cape Legislative Chamber. But Mr Lekala’s submission that ‘nil’ is better than nothing because it comes after a process is cruelly wrong. The EWC Bill process puts expropriation first and court decisions later making it practically worthless for anyone who cannot bankroll their way through ‘lost control’ of their home and business while also funding attorneys and advocates through court.
Procedural abuse
The Republic’s Constitution prohibits such procedural abuse by stating, [emphasis added] ‘Property may be expropriated only…(b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.’
The use of the past perfective, ‘have been decided’, means that the relevant action must be complete, not afoot. In a dispute the relevant action is a court decision or approval of one side, which must be complete, not pending. That the EWC Bill puts the cart inside the horse, rather than behind it, would violate the Constitution even if real compensation were guaranteed. That Mr Lekala wants to load the very same procedural horse with his ‘huge difference’ between ‘nil’ and nothing is not an improvement, it is an absurdity riding an oxymoron.
I asked Mr Lekala about this, one-on-one, after the session. His response was, once again, lengthy, but it effectively underlined this point emphatically. ‘Inherently, by its nature, the effect of expropriation is to take property immediately from when the notice is served on you,’ he said.
I asked for clarity. ‘You are saying once the notice is served inherently the effect of that is to take the property?’
‘The property is taken. It’s gone.’
‘But that’s not what the Bill says,’ I probed.
‘No, no, no,’ Mr Lekala replied. ‘Even under the 1975 Act, that is what is happening. Even under the 1965 Act. Even if you go to America. Anywhere you go that is an expropriation. An expropriation means when you are served with a notice the property is gone. You can go anywhere in the world, that is the nature of an expropriation.’
Is there anything in the EWC Bill to stop that notice from being served before a court has decided the case? Not a damn thing.
That means the EWC Bill has a title-grab clause that legitimises the very land-grabs that communists like Julius Malema (MP) openly call for and promises this will be okay because a court procedure that concludes, if ever, only after expropriation, may spare the meek.
Hugo Chavez promised a new ‘Socialism of the 21st Century’; the Ramaphosa administration is delivering.
Little hard pushback
Sadly there was very little hard pushback. Freedom of Religion SA made an excellent, well-prepared submission. On the other hand, a representative from Build One South Africa (BOSA) asked whether the EWC Bill allowed the President or Premiers to seize property from emigrés?
Submissions closed with Susanna Coleman, ‘of Kenilworth‘, saying ‘we support the bill wholeheartedly’. Then the session closed with Coleman declaring to the desperate poor that ‘there is a feast at the end of the corridor, and coffee’.
Brava, Susanna, I thought. If they cannot have proper title deeds let them eat koeksisters!
Susanna, the only person in turn to express direct support for the title-grab clause and to endorse the EWC Bill ‘as proposed’ in its final public hearing. A little slice of history.
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