A think tank says it will soon launch a legal bid to challenge major procedural shortcomings in the parliamentary process redrafting section 25 of the constitution to ease expropriation of land without compensation.
The land expropriation issue has polarised the country and spooked investors.
Parliament’s ad hoc committee looking into the matter has published the draft bill to amend section 25, the property clause of the constitution, to allow for expropriation without compensation to tackle skewed land-ownership patterns dating back to the apartheid and colonial eras. The draft bill is to be gazetted next week for public comment over the December holidays, and then again for a short period in January.
The Institute for Race Relations (IRR) said on Thursday contrary to all the assurances provided by the ANC — and the mandate given to the ad hoc committee —the draft bill does far more than merely “make explicit that which is implicit” in the existing wording of section 25.
First, the draft bill makes it clear both land and “any improvements thereon” are to be subject to expropriation without compensation.
‘Equitable balance’
“However, the ad hoc committee’s mandate is to deal with land alone. Buildings are, of course, immovably attached to land that may be expropriated, but the additional value of these structures can always be calculated,” the IRR said.
It said compensation for such investments must at least be paid to strike the “equitable balance” required by section 25.
The IRR also pointed out that the draft bill empowers parliament to adopt any number of subsequent statutes, all of which could be passed by a simple 51% majority, which will set out “specific circumstances where a court may determine that the amount of compensation is nil”.
This sub-section vastly extends the circumstances in which “nil” compensation could be paid.
“In fact, it opens up an endless vista of potential expropriation without compensation takings. For this reason too, the sub-section does far more than make ‘explicit that which is implicit’ in the existing section 25.”
The IRR said if the draft bill is enacted into law, at least three possible statutes could be adopted. First, parliament could enact the current Expropriation Bill of 2019, which has a vague and easily expandable list of five instances in which nil compensation may be paid.
Second, in keeping with proposals put forward by the presidential advisory panel on land reform, the current expropriation bill could be amended in two ways. Its vague and expandable list could be doubled from five to ten instances where no compensation is merited. In addition, a new clause could state that no compensation may be paid whenever a local municipality has identified land as suitable for redistribution but its owner has refused either to donate it, or to sell to the municipality at a “minimal” price, the IRR said.
Furthermore, parliament could enact an additional statute, also by 51% majority, which vests the custodianship of all land in the state — and this expropriation is a “specific instance where a court may determine that the amount of compensation is nil”.
“The proposed changes in the draft bill are anything but minimal. Nor are they consistent with the ad hoc committee’s mandate. In addition, the way in which section 25 is being amended is contrary to section 74 of the constitution, with its important procedural rules for amending the Bill of Rights.”
“This unconstitutional conduct and abuse of the parliamentary process cannot go unchallenged — and especially not when the resulting damage to confidence, investment, employment, growth, and prosperity is likely to be so great,” the IRR said.
It said it therefore plans to challenge all these major procedural shortcomings in litigation due to commence in January or February 2020.
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