Two key draft laws advance the NDR, but threaten SA democracy 

21 September 2022

Two key pieces of legislation signed off by parliamentary committees yesterday proceed in lockstep in advancing the National Democratic Revolution, posing an existential risk to South Africa’s constitutional democracy.

Both draft laws – the Expropriation Bill, approved yesterday by the Portfolio Committee on Public Works and Infrastructure, and the Land Court Bill, approved by the Committee on Justice and Correctional Services – have now been sent to the National Assembly (NA).

Both are central to the ANC’s National Democratic Revolution, the governing party’s overarching strategic objective, which was recently re-endorsed by President Cyril Ramaphosa at the ANC’s 2022 Policy Conference, and is aimed at fundamentally altering the relationship between citizen and state by, inter alia, expropriation without compensation (EWC).

The IRR has repeatedly warned against EWC, as well as other aspects of the Expropriation and Land Court bills. Before repeating those warnings it is worth noting that for either bill to pass requires a simple majority in the NA.

Blocking the bills would require opposition parties, civil society, business, and, most especially, the electorate to unite against the assault on property rights and bring sufficient pressure to bear to induce some ANC MPs to break ranks. This is the most clear-cut opportunity for a coalition of opposition parties to rally around a single cause in defence of the public interest.

Most people do not support EWC. As noted in a letter sent last week to the committee considering the Expropriation Bill, “[i]n 2020 the IRR commissioned a statistically powered, independent poll, that asked several socio-economic questions including whether people preferred the economy to grow in productivity and jobs, or whether EWC was preferred ‘to redress past wrongs?’

“Approximately 15% of white respondents and 15% of black respondents said they would prefer EWC…By contrast 80% of respondents of all colours said they would prefer growth to EWC. That is the path to peaceful development. We implore you to represent this super-majority’s interests by deleting Section 12(3) of the Bill.”

Shortly after receiving this letter the ANC members called for a pause on the Expropriation Bill to enable a “final relook”. This “relook” was brief, but indicates a fissure that will need to be widened if the bill is to be blocked. The ANC will assure a further decline in its popularity if it passes the bill, primarily because of the negative material effect EWC will have on people’s lives, as exhibited most recently in Venezuela.

Section 12(3)(a) of the Expropriation Bill allows the state to take away private property where “the owner’s main purpose is…to benefit from appreciation in its market value”. If somebody buys to sell at a profit this, according to the bill, makes it “just and equitable” for the state to take that property away. This is technically limited to “land” for now.

Section 12(3)(c) of the Expropriation Bill allows the state to take away private property where an owner “fail[s] to exercise control over it”. If someone’s home, business, farm or factory is invaded successfully then it would be “just and equitable”, according to the bill, for the state to take away the owner’s title deed too.

Section 12(3) of the Expropriation Bill provides an open list of circumstances in which EWC may be “just and equitable”. In other words there are situations in which the state can take away private property under this bill that have not yet been dreamed up, or put to paper.

Section 25 of the Constitution, which the ANC failed to amend last year, should render all of these sections of the Expropriation Bill unconstitutional. But it is likely to take years for the courts to settle on that, and in the intervening period people’s private property stands to be deprived by the state, with knock-on effects ramifying through the economy.

Moreover, the Expropriation Bill defines “expropriation” in such a way as to allow the state to take private property into its “custodianship” without that counting as an expropriation. This is a technicality which aims to dodge the “just and equitable” requirements of the Constitution, since those apply to “expropriations”, not custodial takings.

The Land Court bill drags a steak knife across property rights too by, inter alia, diluting the rules of evidence in favour of hearsay and allowing land activists to out-vote independent judges in adjudicating matters of fact. 

These bills are marching forward in lockstep, advancing the National Democratic Revolution by placing ordinary people at the mercy of the state with no clear law to protect the former from the predation of the latter. Democracy dies when decent folk do nothing.

Issued by Gabriel Crouse, IRR Head of Campaigns, 21 September 2022