Cape Town - During President Cyril Ramaphosa’s State of the Nation Address earlier this year, he said that passing legislation to allow for land expropriation would be a priority.
The Expropriation Bill of 2020 was published and gazetted on 9 October 2020 and it has since been introduced as part of the Parliamentary process in the National Assembly.
In his address, Ramaphosa said that government would release around 700 000 hectares of state land for agricultural production this year in addition to the 44 000 hectares of state land for land claims.
By the end of May, the ad hoc committee on land expropriation is expected to finalise the Bill on amendments to Section 25 of the Constitution to allow for the expropriation of land without compensation.
Section 25 outlines the requirements that the state has to comply with if it wants to expropriate property. It must be for a public purpose or in the public interest and “just and equitable” compensation must be paid.
The proposed section 25 amendment states that it might be “just and equitable” in some instances to expropriate without compensation.
Who can expropriate?
According to the Bill, expropriation is a “compulsory acquisition of property by an expropriating authority”, which means any organ of state or a state department may expropriate.
What could be expropriated?
Any form of “property” may be expropriated and it is not limited to land, which includes all movable property (such as equipment or belongings) and immovable property (such as buildings and infrastructure).
What is the purpose for which expropriation could be done?
Expropriation could be done in two instances, if the expropriation is required for a public purpose or that it is in the public interest.
According to Section 25, public purpose is defined as “…any purposes connected with the administration of the provisions of any law by any organ of state”.
Public interest is “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources”.
The history of land in South Africa
The 1913 Natives Land Act saw thousands of black families forcibly removed from their land by the apartheid government. The Act restricted black people from buying or occupying land and the apartheid government underwent mass relocation of black people to poor homelands and to poorly planned and serviced townships.
The Land Act was repealed in 1991 with the Abolition of Racially Based Land Measures Act.
When the apartheid government was abolished, government made concerted efforts to restore the rights of dispossessed land owners.
The Constitutional Court approved South Africa’s new Constitution on December 4, 1994.
Section 25 of the Constitution states that: “1. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. 2. Property may be expropriated only in terms of law of general application”.
The first attempt at an Expropriation Bill was in 2008, however, it was shelved because of the concern that it obscured the role of the courts in expropriation and would therefore be declared unconstitutional.
In 2018, the National Assembly adopted a motion to amend the Constitution so as to allow for the expropriation of land without compensation.
South Africa now awaits final amendments to Section 25 of the Constitution to allow for the expropriation of land without compensation.