Johannesburg - The constitution places an obligation on the state to “take reasonable legislative and other measures, within its available resources” to effect land redistribution. Section 25 of the Bill of Rights also explicitly allows the state to expropriate property – forcibly if necessary – to achieve this purpose.
This means the state may validly expropriate property – even where the owners of that property are unwilling to part with it or don’t want to let it go at the price offered – if the expropriation is aimed at redistributing land to address the effects of widespread colonial and apartheid-era dispossession.
There is therefore nothing in the constitution that requires the state to stick to a “willing buyer, willing seller” land redistribution policy.
This policy has so far allowed property owners to block redistribution efforts as it allows owners to refuse to have property expropriated and lets them hold the government to ransom by demanding the state pay exorbitant prices for property intended for expropriation.
Think of it as a form of tender corruption – but by white property owners.
Given the slow pace of land reform and the exorbitant cost of the willing buyer, willing seller policy, it can be argued that existing land reform policy is unconstitutional because the measures are not reasonable in that they do not allow the state to move as expeditiously as possible to address the effects of past unfair (race-based) land dispossession.
A new approach – along the general lines of the proposed Property Valuation Bill and Expropriation Bill – is needed to deal with land redistribution.
However, the constitution also prohibits the arbitrary deprivation of property and states that expropriation is made subject to the payment of 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 constitution does not require the state to pay the owner of expropriated property the market value for the property when it is expropriated. Instead, the state is required to pay “just and equitable” compensation, “reflecting an equitable balance between the public interest and the interests of those affected”.
In deciding what would constitute just and equitable compensation, section 25 of the constitution requires that the following factors must be considered:
* The use of the property.
* The history of the acquisition and use of the property.
* The market value.
* The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement.
* The purpose of the expropriation.
Of course, there are many problems with the current land redistribution programme.
A lack of support and training for emerging farmers, as well as the lack of a coherent long-term strategy aimed at redistributing land while enhancing food security, bedevil efforts to redistribute land in a way that would enhance economic growth while speedily addressing the untenable, racially skewed distribution of land.
The proposed bills will not address all of these problems.
The bills are, however, intended to deal with the slow process of the current land reform programme as well as the exorbitant and thus unsustainable cost of the programme.
The Expropriation Bill authorises the relevant minister to expropriate property for land redistribution.
The bill provides several procedural safeguards, including the opportunity for the property owner to lodge an objection to the decision to expropriate his or her property and negotiate with the authorities on the intended expropriation.
The bill then provides for a decision to be taken on the expropriation within 60 days. Even if the owner is not happy with the amount of compensation that is offered, the bill provides for the expropriation to go ahead.
However, crucially, section 22 of the bill states that if the owner and the expropriation authority cannot agree on the terms of an expropriation any party to an expropriation has the right to approach a court to decide on or approve the:
* Amount of compensation.
* Time of payment of compensation.
* The manner that compensation is paid.
This means the Expropriation Bill would allow (but not require) a court to make a final determination on the compensation paid for expropriated property.
Although, as it stands, section 22 of the bill provides an important safeguard for owners of property to be expropriated, it would not prevent the expropriation from being effected before the court makes a final determination on the compensation.
The involvement of the court in determining the compensation would be optional, not mandatory.
This is in conflict with the provision in section 25 of the constitution, which requires compensation to be either “decided or approved” by a court.
Although the bill appropriately allows for the expropriation of property – even without the consent of the owner – it fails to provide for the mandatory involvement of the court in the determination of the compensation.
A property owner with the necessary funds would be able to approach a court to challenge the amount or the manner of payment of compensation, but if he or she does not do so, the court will not be involved in deciding or approving the compensation – in conflict with the constitution.
Moreover, it is unclear how these provisions fit in with the provisions of the Property Valuations Bill.
This bill would create the office of the valuer-general, who would be tasked with the duty of valuing all properties that will be expropriated and developing criteria for the valuation of such properties.
These will obviously mirror those listed in section 25 of the constitution, which means that although a valuation process will always start by considering the market value of the property, other relevant factors might be used to reduce the valuation of the property.
But the problem is that these provisions do not refer back in any way to the provisions of the Expropriation Bill, giving the impression that the drafters of the one bill had no idea about the provisions of the other bill being prepared.
But if one assumes that the newly created valuer-general will finally decide on the amount of compensation to be paid in the event of a forced expropriation, it is unclear how this will be done and to what extent the court would be involved in the decision.
The Property Valuation Bill provides for an elaborate review process and allows a review committee to reconsider the amount of compensation to be paid for an expropriated property.
The bill states that the decision of a review committee would be deemed “final and binding subject only to a review by a court”.
Again there is no provision for the automatic involvement of the courts in the establishment or approval of the amount of compensation that will have to be paid, which renders the bill unconstitutional.
It seems to me the only way land reform could be speeded up and the cost kept down in a constitutionally valid manner would be to create a dedicated valuations court and to require the new court to sign off on all determinations of the compensation to be paid to property owners in the event of forced expropriation.
Where forced expropriation occurs, it is important that a credible body such as a court always has the final say on whether just and equitable compensation was paid for the expropriated land.
Without such a mechanism, land expropriation may well become mired in corruption, which would not further the constitutional interests of speedy but effective land redistribution.
* De Vos runs a daily blog, Constitutionally Speaking.
Pretoria News
The views expressed here are not necessarily those of Independent Newspapers.