The expropriation of land without compensation is a contentious saga which sees South Africans quite divided on the subject. However, like it or not, expropriation is coming. This after the new Expropriation Bill 2020 was officially gazetted on 9 October 2020—and will now be submitted to Parliament for finality.
As in other countries, expropriation of land has formed a part of South African law for several years. This can be seen in the Government expropriating land for the construction of roads and hospitals. However, the changes will now allow the Government to not only take land without compensation, legally but to use the property for land reform.
The question now stands, how will the process work and what can South African landowners expect when the Bill is passed by Parliament?
According to the gazette, land can only be seized when it is in the public interest or serves a public purpose.
However, it is important to highlight, it may not be implemented unless the expropriating authority has unsuccessfully reached a reasonable agreement with the owner of the land.
Additionally, the new law states, “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.”
These circumstances include:
- The current use of the property.
- The history of the acquisition and use of the property.
- The market value of the property.
- The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property.
- The purpose of the expropriation.
When will the Government be able to confiscate land without making any form of payment?
The new bill states that it “may be just and equitable and in the public interest to pay nil compensation for land earmarked for expropriation.”
These instances include the following:
- 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 but to benefit from the appreciation of its market value.
- Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to need the land for its future activities in that regard, and the organ of the state acquired the land for no consideration.
- Where an owner has abandoned 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.
When looking at expropriation without compensation, despite the fears, it seems it will only be used in limited circumstances. In fact, Bulelwa Mabasa, director and head of land reform restitution and tenure at Werksmans, as well as a member of the Presidential Advisory Panel on Land Reform, says courts will first have to be satisfied with investigations before it will be allowed.
Prior to the process being implemented, the landowner will first need to receive a notice, well in advance. The landowner will then have an opportunity to object.
The state will then need to submit reasons on why the land is required and how it will be used. Mabasa assures, that unlike what happened in Zimbabwe, the power to determine whether the land can be confiscated or not, will remain with the courts.
Welcoming the bill, Mabasa adds it will bring about a sense of clarity for potential investors in South Africa. However, she warns that expropriation without compensation won’t solve South Africa’s land reform issues.
With the Government in high hopes of land expropriation increasing investment into South African and now seeing the potential for land debacles opening up what are your thoughts on the Bill? Do you feel this will help ease tensions in the country or fuel them?
Share your views with us in the comment section below.
Author: Quinton Boucher
Edited: Calvin Swemmer