Sakeliga will exercise its constitutional obligation to ensure the Expropriation Bill does not become operative 

29 September 2022

As with the failed constitutional amendment before it, Sakeliga will exert all necessary pressures and undertake litigation as required to ensure the Expropriation Bill, passed this week by the National Assembly, does not become operative.

Secure property rights are a precondition for a secure and flourishing society and commercial environment.

The Expropriation Bill does great harm to property rights. It moves to enable confiscation (so-called “expropriation without compensation”), under the guise of offering compensation, except however, such compensation may be “nil rand”. In the wake of a failed attempt to amend section 25 of the Constitution, the Expropriation Bill is a devious follow-up attempt to achieve the same effect through the backdoor of an Act of Parliament.

The passed   Expropriation Bill will next be referred to the National Council of Provinces, and if adopted, it will be submitted to the President for assent. Such additional checks and balances have historically proven unable to halt the passage of intolerable laws. Sakeliga nonetheless urges the National Council and the President to exercise wise judgment and reject the Bill. If they fail to do so, Sakeliga will immediately proceed with litigation and other steps at our disposal.

An independent civil society, business communities, and individuals require secure property rights not only to flourish economically, but also to secure themselves and fulfil their constitutional obligations. Civil society and businesses play a crucial constitutional role as centres of civil power able to guard against abuses of state power and state failure.

This is possible because people and institutions have a proprietary foundation – private property – which is necessary for security, economic productivity, and standing in legal disputes.

When property rights are undermined in the way the Expropriation Bill moves to do, it weakens this crucial role and function of civil society and the commercial sphere. This constitutional threat is exacerbated by other deleterious proposals like the Land Court Bill and the Unlawful Entry on Premises Bill.

Sakeliga will not tolerate these threats to social and economic order.

The initiative to amend section 25 of the Constitution failed in December 2021. Had it been amended, that amendment would itself have been unconstitutional. However, because of this failure, the Expropriation Bill as it stands is inconsistent with the Constitution at the most rudimentary level.
 
We notice that, under the guise of creative legal discourse, some academics argue that “nil compensation” qualifies as compensation. This amounts to sophistry. Sections 25(2) and (3) of the Constitution make plain that wherever there is expropriation, there must be compensation. It can never be said that one who is legally entitled to compensation has been “compensated” when having received nothing. This amounts to confiscation, and the Expropriation Bill’s import of it through the backdoor must rejected for what is.

Confiscation is incompatible with a constitutional order. Sakeliga regards it as our constitutional obligation to prevent it from being recognised in statute. We encourage other institutions of civil society to do the same.

While the confiscatory provisions in the Expropriation Bill are the most concerning, Sakeliga has also drawn attention to a host of other provisions in the Bill that make it unacceptably easy for the State to engage in expropriation – even in cases where compensation is paid.

Sakeliga’s full parliamentary submission on the Expropriation Bill can be found here.

Issued by Piet le Roux, CEO, Sakeliga, 29 September 2022