DA/ANC support for the Restitution Bill risks disaster on a par with Britain's scorched earth policy during the Boer War
Two pieces of pending legislation could together result in the expropriation of commercial farming operations with zero compensation.
The first is the Restitution of Land Rights Amendment Bill of 2013 (the Restitution Bill), which will open up a new five-year window for the lodging of land claims. Some 379 000 new land claims are likely to be submitted and could cost the State about R179bn to settle, according to the Government's regulatory impact analysis. Yet in the 2013/14 financial year, the restitution budget was roughly R3bn. How, then, is the State to find the money to settle all these claims?
The answer could lie in the so-called Promotion and Protection of Investment Bill of 2013. This suggests that expropriated property owners will be entitled to ‘just and equitable' compensation, but the Bill also contains a weasel clause stating that it is not ‘an act of expropriation' if the State takes property, not as owner, but as custodian for others.
Where the State takes as ‘custodian' - as the Constitutional Court has already ruled in a case involving mining rights - the deprivation of property from an existing owner is not matched by the acquisition of that property by the State. This means that there is no expropriation - and no right to any compensation.
Under the Investment Bill, the Government could thus pass legislation (modelled on mining law) providing that all agricultural land, farm equipment, and livestock vest in the State as the custodian of the nation's land resources - and inviting black South Africans, in particular, to apply to the relevant department for the right to use a portion of these assets for a specified period.