Chrispin Phiri
The recent response to President Ramaphosa's asserting to the Expropriation Act has sparked significant debate.
Critics have expressed concerns, suggesting it may lead to reckless land grabs and an erosion of property rights. Some have framed this as a land seizure law.
Potential for Land Grabs:
Critics argue that the Act could enable the government to arbitrarily seize land without compensation, leading to uncertainty and instability in property ownership. They fear that this could deter investment and harm the economy.
The Act contains specific provisions and procedural requirements that prevent arbitrary expropriation. For instance, the Act lists five conditions under which compensation may be nil, ensuring that expropriation is justified and not conducted recklessly.
These conditions include:
- Where the land is not being used, and the owner’s main purpose is not to develop the land or use it to generate income,
- Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration,
- Where an owner has abandoned the land by failing to exercise control over it,
- Where the market value of the land is equivalent to or less than the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land,
- When the nature or condition of the property poses a health, safety, or physical risk to persons or other property. These conditions ensure that expropriation is done in the public interest and not for arbitrary reasons.
Erosion of Property Rights
Critics also contend that the Act erodes property rights, undermining the security of ownership.
The Act reinforces the application of Section 25 of the Constitution, which protects property rights. The procedural requirements, such as publishing notices and verification processes, ensure transparency and accountability in expropriation.
Property rights are not undermined; rather, the Act provides a framework for the state to address public interest issues, such as urban decay, just and equitable land reform and safety hazards, which are currently difficult to manage under existing laws.
Negative Economic Impact
Another concern is the potential negative economic impact, with critics suggesting that expropriation without compensation could lead to decreased property values and reduced investor confidence.
The Act aims to address specific situations where land is under-utilised, abandoned, or poses risks.
By targeting such properties, the Act can contribute to urban renewal and improve public safety, potentially enhancing property values and investor confidence in the long run.
Additionally, similar expropriation laws in other countries, like eminent domain in the United States, have not led to widespread economic decline, demonstrating that with proper implementation and safeguards, the Act can be beneficial.
Expropriation, or eminent domain as it is known in other countries like the United States, is not a new concept. While the issue of compensation may be debatable, it remains a secondary argument.
If one receives an expropriation notice, it is necessary to respond to the expropriation authority within 20 days indicating their response. This is inconsistent with the notion of a land grab or land seizures.
Those who assert that the new Expropriation Act will enable land seizures or land grabs often do so without referring to the actual text of the legislation.
This narrative may serve political interests but does not reflect the Act's intention or impact. It is also quite evident that a just and equitable approach to land reform is required. There have been insistences where the land reform process has cost the State very high “market prices”.
It is worth noting that there is existing precedent in International law which the Constitutional court obliges us to consider when interpreting legislation.
The European court has found that expropriation without compensation is justified under exceptional cases. In the CASE OF JAMES AND OTHERS v. THE UNITED KINGDOM the same court held legitimate objectives of "public interest", such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Our expropriation act echoes the very same ethos. Secondly the notion of no compensation for a legitimate government action is well settled
In conclusion, far from being a reckless land grab, it aims to address specific issues such as underutilised land, urban decay, and public safety hazards.
By reinforcing property rights and implementing safeguards, the Act has the potential to contribute positively to urban renewal and economic stability. It is crucial to move beyond fear-mongering and political narratives to understand the Act's true impact and benefits.
In any event compensation for land reform process is not a constitutional requirement in fact the Constitutional court has made it clear that section 25 does not exist in a vacuum in the matter of AgriSA v Minister of Minerals and Energy former Chief Justice Moegeng Moegeng held "We must interpret section 25 with due regard to the gross inequality in relation to wealth and land distribution in this country.” All things carefully considered fear-mongering over the Expropriation Act is unwarranted. South Africa belongs to all who live in it.
**Chrispin Phiri is the spokesperson for the Minister of International Relations and co-operation and writes in his personal capacity
*** The views expressed here do not necessarily represent those of Independent Media or IOL