The Land and Accountability Research Centre made a submission to the Portfolio Committee on Public Works and Infrastructure on the Expropriation Bill 2020, public written comments for the Bill closed on the 28th of February 2021.
In the context of the submission LARC made to the Constitutional Review Committee tasked with considering whether to amend section 25 and other provisions of the Constitution to make it possible for the state to expropriate land in the public interest without compensation, it was important to take part in this public process.
One of the central points in our submission before the Joint Constitutional Review Committee was that it is not necessary to amend any provisions in the Constitution to allow for expropriation without compensation. We submitted that a proper interpretation of the Constitution already allows for the expropriation of land without compensation. Instead, what is needed is empowering legislation that would articulate the parameters of the state’s power to expropriate within the bounds of the Constitution. We therefore welcomed the Bill, in principle.
One of LARC’s areas of focus relate to the impact of laws, policies, and practices of the state as well as the conduct of private parties on the rights protected in section 25(6) of the Constitution. Sections 25(6) and (9) of the Constitution deal with security of tenure and provide that tenure that is legally insecure as a result of past racially discriminatory laws or practices must be made legally secure in terms of legislation. We work with people and communities whose land rights, while formally recognised by the Constitution and laws such as the Interim Protection of Informal Land Rights of 1996 are, in practice, constantly threatened. Their rights are undermined by both the state and private parties through policies and practices that fail to appropriately recognise their rights as property rights enjoying constitutional protection.
Our submission dealt with two broad points:
- The Bill, in its current form, fails to adequately articulate the extensive pro-active power to expropriate for a public purpose or in the public interest that the Constitution already gives and envisions for the state. The Expropriation Bill does not enable the state to effectively and efficiently achieve its wide constitutional mandate of giving effect to land and related reform. Instead, the Bill circumscribes the powers of the state and imposes excessively onerous and prescriptive requirements and procedures that are not required in terms of the Constitution. These could unduly delay the process of expropriation or invalidate it.
- The Bill’s recognition and treatment of unregistered rights to land and property is an important and commendable step forward. However, the Bill does not recognise the tensions and imbalances of power and legibility that exist between registered owners and holders of unregistered rights. It also fails to take into account the realities faced by the holders of unregistered rights to land, who tend to be the poorest and most vulnerable people in South Africa. They need additional and explicit measures to ensure that their rights are recognised, respected and protected during the process of expropriation.