# New expropriation bill narrows the focus for no compensation

- Link: https://dearsouthafrica.co.za/2020/10/19/new-expropriation-bill-narrows-the-focus-for-no-compensation/
- Published: 2020-10-19T14:40:03+02:00
- Author: dearSA

## But continues a long-standing disrespect for property rights in South Africa

_By Ciaran Ryan_

![Private Property - DearSA](https://cdn.dearsouthafrica.co.za/wp-content/uploads/
2020/10/20190901/Land-Expropriation-DearSA.jpg "Land Expropriation - DearSA")

The expropriation without compensation (EWC) debate refuses to die. In 2018, when
EWC first entered public debate, the idea was to amend Section 25 of the Constitution
which protects South Africans against arbitrary deprivation of property.

Section 25 has been an impediment to those pushing for Expropriation without compensation,
but to amend it would require a 75% – or two-thirds – majority in Parliament, depending
on which legal advisor you talk to.

The new Expropriation Bill introduced early in October 2020 will replace the 1975
Expropriation Act, and should have an easier passage through Parliament, requiring
a majority of just 50% plus one.

However, it still has to go through the public comment stage, which so far has been
stridently against any tampering with property rights. So this is your chance to
make your voice heard.

Expropriation has been a feature of SA’s legal landscape since the apartheid years,
but compensation was always part of the equation (and since 1994, protected by the
Constitution).

The new Expropriation Bill will allow Expropriation without compensation when it
is in the public interest or for “public purpose”.

The introduction of this new bill does not mean amendment of Section 25 of the Constitution
has been buried despite there being very little public support for it (and what 
support there is, is getting smaller, as the Dear South Africa campaigns [demonstrate](https://dearsouthafrica.co.za/constitution-eighteenth-amendment-bill/report/)).

If you’re looking for reasons behind rising capital flight and emigration, Martin
van Staden, legal researcher at the Free Market Foundation, reckons he has found
the answer: “Even discussing EWC has triggered capital flight,” he says. “This shows
up in the Fraser Economic Freedom of the World 2020 report, where there is declining
trust in SA’s property rights.”

Going down the EWC road puts us in company with [the likes of Zimbabwe and Venezuela](https://www.biznews.com/wealth-building/2020/10/12/emigration-alarm-sas-rich-get-set-to-leave-in-droves-irr),
says van Staden, with all that implies: rising emigration, currency debasement and
economic collapse. The emigrants are those with the skills and the money.

Those in favour of EWC point to the disproportionate amount of land still in white
hands and the lack of restitution for apartheid- and colonial-era land grabs. Despite
many surveys attempting to quantify this disparity, there remains doubt as to the
actual state of land ownership. Nor do we have much idea of what land is owned by
the state, much of which could be made available for distribution to the poor. 

EWC has become a racial profiling exercise influenced by political agendas, and 
that has made it potentially poisonous. Owning 10,000 hectares in the Karoo, compared
to five hectares in Stellenbosch, means very little unless we start to look at the
economic usefulness of the land.

Van Staden believes the government may be getting ahead of itself in trying to pass
the new Expropriation Bill without first amending Section 25 of the Constitution.
Any attempt to expropriate property without compensation is sure to end up in the
Constitutional Court. 

Should the bill get passed into law, the government may simply not enforce it, a
way of sterilising its own legislative decisions. But should it enforce it, our 
descent to a failed state will be virtually assured. Either way, foreign investors–
who suspect a government capable of taking land without paying for it might also
do the same to other assets – will avoid South Africa, even more so than is currently
the case.

The new Expropriation Bill proposes leaving it to the courts to decide on the level
of compensation in the case of Expropriation, but defines the following circumstances
where nil compensation will be paid:

 * Where land is unused, and the owner has no intention of developing or using it
   to generate income, but to hold it for capital appreciation;
 * State-owned land acquired for “no consideration” that is not being used for its
   core functions, nor likely to be used for these functions in future;
 * Where the owner has abandoned the land and exercises no control over it, despite
   possession of a title deed;
 * Where the market value of the land is equivalent to, or less than, the present
   value of direct state investment or subsidy in the acquisition and beneficial
   capital improvement of the land; 
 * When the nature or condition of the property poses a health, safety or physical
   risk to persons or other property;
 * Should a court or arbitrator determine that an amount of compensation in terms
   of section 23 of the Land Reform (Labour Tenants) Act, “it may be just and equitable
   for nil compensation to be paid, having regard to all relevant circumstances.”

Public Works and Infrastructure Minister Patricia de Lille explained the new bill
had passed Constitutional muster with the Chief State Law Advisor, while the previous
Expropriation Act was inconsistent with the Constitution.

Van Staden says one of his chief concerns with the new bill is that it treats government
and citizens differently, and that could further eviscerate the rule of law in SA.
It follows a long-standing pattern of disrespect for property rights dating back
to apartheid and pre-apartheid years. 

Make sure to have your say on the new Expropriation Bill.