Expropriation Bill: More clarity

Agri SA seeks more clarity on the Expropriation Bill that was just released by the Minister of Public Works. The new Bill does provide more clarity on expropriation without compensation (EWC), but the reach and definitions must urgently be clarified.

The Expropriation Act is not entirely separate from the current debate on the amendment of section 25 of the Constitution, but essentially provides a political solution that will bring more legal certainty.

“Agri SA is opposed to EWC,” says Annelize Crosby, Head of Agri SA’s Centre of Excellence: Land. “We support the principle that owners should not be better or worse position after expropriation, their position should be unchanged as if no expropriation took place.”

The Expropriation Bill proposes that the following property types can be expropriated without compensation:

Land owned by a state-owned corporation or -entity;

Land occupied by labour tenants;

Land abandoned by the owner;

Land that is kept for speculative purposes; and

Where the market value is equivalent to or less than the present value of direct state investment or subsidy in the acquisition or capital improvement of the land.

This is the third version of the Expropriation Bill which aims to bring greater legal certainty on the implementation of more than 200 existing laws that allow for expropriation. Agri SA has been involved since the first draft in 2008 in discussions including the Nedlac negotiations on the Bill.

"The new wording in the Expropriation Bill gives a discretion to expropriate certain types of land, but the provision is not mandatory," says Crosby. “The clause also makes it clear that all relevant circumstances must be taken into account before such a step is taken."

Agri SA's biggest concern is the expropriation of land occupied by labour tenants. These claims are complex and most of the claims have not yet been verified.

"The status as labour tenants of many people living on farms in KwaZulu-Natal and Mpumalanga has not yet been clarified," said Crosby. "There are also concerns about the uneconomic nature of many of the parcels of land on which there are labour tenant claims as well as its productive use. The real problem is that the Labour Tenant Act has never been properly implemented.”

Agri SA is still concerned about the definition of "expropriation" as contained in the newly released bill. The definition limits the term expropriation to cases where the state acquires the property. It is too narrow and out of line with international trends where expropriation is understood in a wider context. A narrow definition poses the danger that the state can place all kinds of restrictions on ownership without compensating the owner.

Agri SA will submit written comments on the bill and actively participate in all the consultation processes that follow. The bill will probably only appear on the statute books by 2020.

Statement issued by Annelize Crosby, Agri SA Head: Land, 21 December 2018