The Future of land expropriation without compensation

Land reform is a prevalent concept in the documents of various political parties contending for governance in South Africa. Not only does mentioning this concept win parties some votes, but leads to panic for most of South African citizens. It massively frightens businesses, property owners, farmers etc. Comments about land reform in the country are said to have a “crippling effect” on the property industry. The property sector which is worth trillions of Rands feeds directly from land, and the concerns over the next decision concerning the distribution and expropriation of land are inevitable. 

“The latest wave of hysteria was brought on by the proposed amendment published on the 13th of December 2019. This publication did not cause much concern in itself, the panic was probably fuelled more by the comments from politicians following this publication. This proposed Amendment Bill refers to legislation which will direct courts regarding the specific circumstances under which the court may grant an order to expropriate land without compensation, or as specifically stated in the proposed amendment, where the amount of compensation is nil,” said Managing Director at SSLR Incorporated, Cilna Steyn.   

Land expropriation without compensation 

The proposed amendment states 25(1)(b) “…Provided that in accordance with subsection (3A) a court (own emphasis) may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil.”  The proposed subsection (3A) reads: “National legislation must, subject to subsection (2) and (3), set out specific circumstances where a court (own emphasis) may determine that the amount of compensation is nil.” 

The sentiment 

Mixed sentiments about this bill have been circulating with the overarching sentiment being the idea that ‘this proposed amendment removes judicial oversight from potential expropriations.’  

The Argument 

It has recently been reported that the leading party in South Africa is not really impressed with this bill, and that its intention is to review the bill and its entails. The reports state that the ANC hopes to cut the courts as the arbiters and that the powers be given to the executive for the decision making, precisely the minister in the land reforms department. Something that Director and Head of the Land Reform Restitution & Tenure Practice at Werksman attorneys, Bulelwa Mabasa believes should be looked into.  

She said the courts do not have the absolute freedom to make final decisions on matters relating to land expropriation without compensation. And that the powers of the judiciary do not necessarily exceed those of the executive in the arms of the state. However, Mabasa believes that the ministerial office should not be “the ultimate decision maker” in this instance.  

Meanwhile SAPOA CEO Neil Gopal says “Land acquisitions should take place within the law and follow a fair administrative procedure. Disputes need to be settled in the courts, and no one should be evicted without a due court process.”  

“If the courts are removed from this process, the protection of property rights in South Africa is likely to diminish, resulting in a downward investment in agriculture as well as in property investments,” He said.