South Africa has been given a reprieve. A short one, to be sure, but a reprieve, nonetheless. Last week Parliament announced that the deadline for the public to make submissions on the Expropriation Bill has been shifted from the 10th to the 28th of February.
It is an opportunity for those who have not done so to voice their objections to the Bill. More than an opportunity, it is an imperative that should not be ignored.
It’s hard to imagine that many South Africans are unfamiliar with the government’s drive to institute a regime of expropriation without compensation (EWC). The Bill is a crucial piece of machinery to achieve this.
It establishes a system to enable the government to take what it wants. This may be at no compensation, since the Bill explicitly makes this possible on an indeterminate number of grounds (it provides a set of examples, while explicitly stating that the possible grounds are not limited to these examples). Equally concerning is the prospect that a derisory amount might be offered, the ‘expropriating authority’ secure in the knowledge that contesting this will prove effectively impossible.
The Bill delinks the process of expropriation from that of payment. Having followed a series of preliminary steps, an expropriating authority can proceed to expropriate at a price which it deems acceptable. The property and the right to possession will pass on to it on the dates specified in the notice of expropriation. While it is true (as defenders of the Bill have noted) that aggrieved property holders have the right to approach the courts to contest the validity of the expropriation and the compensation on offer, such a challenge will not hold up the taking of the property. Challenges may well have to be pursued after the property has been lost. The now dispossessed owners will then face the considerable costs of the legal action.
In practice, this will put enormous pressure on those facing expropriation to settle on whatever terms are possible.
‘Compulsory acquisition’
Beyond this, the Bill craftily phrases the definition of expropriation in such a way as to make it possible for an owner to lose his or her property without this being deemed expropriation. Expropriation in the Bill refers to ‘compulsory acquisition’ by the state. But as my colleague Dr Anthea Jeffery has repeatedly warned, this is a transparent attempt to bring into law the principle endorsed by Chief Justice Mogoeng in the 2013 Agri SA case (Agri South Africa v Minister for Minerals and Energy).
This held that when the state declared itself ‘custodian’ of an asset or resource – as it has with respect to mineral rights – it was not becoming a new owner, and therefore was not liable to pay compensation. It was therefore possible to lose an asset to the state and not be compensated for it.
While the judgment was expressly limited to the facts at hand, it opened up some intriguing options to political leaders who envision a much more intrusive role for the state, whether out of ideological motivation or a more pedestrian hope that this will make available assets for patronage or looting.
This is, of course, key to understanding the threat that this legislation constitutes. The use to which a law is put will hinge on the intentions and the integrity of those tasked with enforcing it. The South African state has hardly distinguished itself as trustworthy, here. South Africa’s municipal governments, in particular, are all too often deeply corrupt, highly politicised and financially compromised.
Temptation
The temptation to use the expropriation procedures as a shortcut means to enrich themselves is an all too real one. (The 2019 report of the presidential advisory panel on land reform suggested directly that municipalities should identify the land they want, negotiate for it – being open to receiving it as donations – and if that failed, move to expropriation.)
Supporters of the EWC drive have maintained that wider powers for the state are essential to complete the unfinished work of land reform, and to empower South Africa’s poor. This is nonsense. Wider powers to the state, and support for an ideological approach that envisages South Africans being eternal supplicants of officialdom empowers only the state – the state as it exists in South Africa at present. This is not an appealing prospect.
South Africans have around two weeks left to make their voices heard. The stakes are high and the implications for South Africa’s future of this Bill becoming law are dire indeed.
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