Expropriation Bill: Businesses and civil society must resolutely oppose property confiscation
28 March 2024
To the extent that the Expropriation Bill were to become operational, it would be a serious blow to security of property and by extension to the very constitutionality of the South African order.
It is not sufficient merely to hope that such legislation will be reversed by political change. Successful opposition by businesses and civil society groups will require extensive litigation as well as sustained pressure, obstruction, and intervention beyond litigation, until the objectionable sections of the legislation become sterile in practice.
Sakeliga stands ready to litigate on the matter. We encourage responsible businesses and members of the public to oppose and resist the Expropriation Bill. An important way to do so is by supporting organisations, like Sakeliga, capable of leading that charge.
Parliament’s support for the Expropriation Bill underscores the key role of businesses and civil society in independently upholding constitutionalism by resisting state confiscation of property.
Chief among several flaws, the Expropriation Bill purports to legalise state expropriation of any property (not just land) without compensation, or at any amount below market value that it deems appropriate. In this, the Expropriation Bill is a renewed and unconstitutional attempt to legalise state confiscation of property, despite the (also fatally flawed) Constitution 18th Amendment Bill’s failure in Parliament in 2021 to first alter property provisions of section 25 of the Constitution.
Parliament’s inclusion of the objectionable provisions, despite extensive business and public opposition, unfortunately indicates a preference among most MPs for disregarding and disrespecting property. However limited state actions in this regard might initially be, the state’s track record shows that violations of property will escalate, unless it is resolutely and successfully opposed from sections of society outside the state.
To the extent that the Bill were to become operational, it would be a serious blow to security of property and by extension to the very constitutionality of the South African order.
The concept of property, like the rule of law, forms part of the foundational essence of constitutionalism itself. Without respect for property, a host of constitutional provisions and checks on power become meaningless, and business and employment creation severely threatened.
However, the mere passing of the Expropriation Bill and assent to it by the President of South Africa would not be the end of the story. Were it to happen, it is incumbent upon businesses and other members of civil society to prevent the untenable and unacceptable parts of the Bill from coming into operation and, to the extent that that cannot be completely prevented, to frustrate and limit its application to the greatest possible degree.
It is not sufficient merely to hope that such legislation will be reversed by political change. Successful opposition by businesses and civil society groups will require extensive litigation as well as sustained pressure, obstruction, and intervention beyond litigation, until the objectionable sections of the legislation become sterile in practice.
Sakeliga stands ready to litigate on the matter and maintain constructive relations with several other organisations who intend to do the same.
We encourage responsible businesses and members of the public to oppose and resist the Expropriation Bill. An important way to do so is by supporting organisations, like Sakeliga, capable of leading that charge.
Issued by Piet Le Roux, CEO, Sakeliga, 28 March 2024
