The Expropriation Amendment Bill has been sharply criticised as being a violation of the constitution. The Bill, announced by public works minister Thoko Didiza in parliament on 26 March, seeks to allow for the expropriation of land “in the public interest” and would also constrain the courts’ ability to rule on whether the price offered for the land is fair compensation.
Nichola de deputy director of the Centre for Constitutional Rights, a unit of the FW de Klerk Foundation, called the Bill a serious threat to property rights and elevated the drastic measure of expropriation to the primary vehicle for land reform. However, the Bill would not give the expropriating authority the means to toss the farmer off his land if he contested the amount of compensation offered.
“We are not looking at a Zimbabwe situation where the farmer will immediately be physically evicted,” said De Havilland. “Payment won’t take place until all the issues are resolved. Although ownership of the property vests in the expropriation authority from the date of the final expropriation notice, the date of possession is a separate issue that must be agreed upon.
“The Bill provides that the expropriating authority can nominate a later date for possession and that the landowner can give the state 21 days’ notice to possess. The farmer must also stay on the land until it is possessed by the authority. If the authority takes ownership before it takes possession, landowners are still obliged to maintain the property and are liable for rates, although they can keep any income derived from farming activities.”
De Havilland said that if a landowner is dissatisfied with the compensation offered, there are mechanisms in place that can be used to inform the expropriating authority.
“First the expropriating authority informs the landowner of its intention to expropriate. They have to stipulate the amount they will pay, but not the date it will be paid, nor the “manner” in which it will be paid. It doesn’t have to be cash. The landowner has the opportunity to object, but only to the decision, and may make submissions regarding the price.
The authority is obliged to try and settle, failing which they will decide whether to expropriate.Notice of expropriation is then served, setting out details such as time, manner and date of payment. The landowner can object again, and the authority makes a determination which is final.”
Only after the authority has issued the final notice, does the landowner have a formal opportunity to object to the amount of compensation. The landowner can then approach the courts to approve the timing, manner of payment, and amount of compensation offered, or take the decision to expropriate on review. “But if the court can’t approve the authority’s decision, it has to send the question back to the authority and order a rerun of the process. The Bill doesn’t allow the court to determine the amount, and it can only revise it in certain limited circumstances.”
The big debate, says De Havilland, is whether the review of the price is adequate to ensure a fair and just price is given. “The constitution prescribes that the criteria used in reaching the amount of compensation be just and equitable, but the expropriating authority isn’t bound to give a market-related price.
There are instances where this is fair. If a farmer purchased a farm under apartheid at a highly subsidised price, the price offered for the land would be downscaled from the current market value. But in many instances landowners have bought land at market-related prices.”
Robin Barnsley, president of the KwaZulu-Natal Agricultural Union, said he had recently travelled SA and seen plenty of farmers willing to support land reform. “But state officials appear unable to deliver and negotiate and put deals to bed,” he said. “There’d be no need for expropriation or the new Bill if Land Affairs did their job properly.” – Robyn Joubert
Note: Readers should contact their legal representatives before acting on any advice contained in this article