Vulnerable communities have lost their land to the state and mining companies in the past decade
In 2018, the political stage was dominated by the question of whether government has or should have the power to expropriate property without compensation - and use it. Some hailed this as the silver bullet that would lift millions of South Africans out of poverty while others warned that it would bring the country to the brink of collapse.
Many lawyers and academics insisted that the whole thing was a red herring. The property clause of the Constitution calls for "just and equitable" compensation, they argued, so if it is just and equitable to pay no compensation, then the Constitution already provides government with that power. The debate culminated in a resolution adopted by Parliament in December last year that the Constitution must be amended to make the power to expropriate without compensation explicit.
In the meantime, the Department of Public Works published a new draft Expropriation Bill for comment just before Christmas last year. The public has until this week to comment on the draft in its current form. However, it has not yet been introduced in Parliament, and there is likely to be more time for public comment once it is before Parliament.
The draft Bill closely resembles the previous version of the Expropriation Bill that passed both houses of Parliament in 2016, but was sent back to Parliament by then President Jacob Zuma, because of fears that the public consultation process was defective.
The draft Bill provides for expropriation without compensation where it is just and equitable "having regard to all relevant circumstances". A list of examples of these circumstances appears in the Bill and includes land occupied or used by a labour tenant, land held for speculative purposes, state-owned land, or land abandoned by its owners. Ironically, the wording falls within the parameters of the Constitution as it is, confirming that expropriation without compensation has always been available to government. This section may well be one of the least controversial in the document.
The draft Bill strives, in its own words, to create "uniformity across the nation... to deal effectively with these matters". In doing so, it must create a balance between the government's need to expropriate land to fulfill a public purpose (like building a road) or in the public interest (like facilitating land reform), and the property rights of those being expropriated.
The problem with creating uniform legislation in South Africa is that people don't own land or rights in land in a uniform way. Private property rights are registered in the deeds office and ownership is easy to prove.
But the land rights of the majority of South Africans living in the rural areas of the former homelands or in townships are not registered in the deeds office. Not only is it often too expensive, but the deeds registry is not designed to cater for customary or indigenous forms of ownership with overlapping rights, for example, or rights attached to membership of the community.
Without the title deed or the registration in the deed's office, it is far more difficult for land rights holders not only to prove their rights, but to show the value of those rights. Creating a system of expropriation that is more difficult for rural people to navigate may well entrench further inequality between the holders of private property rights and other land rights holders.
The draft Bill recognises both property owners with title deeds and what it calls "holders of unregistered rights". The Bill gives no guidance as to how the expropriating authority must identify these rights holders, or how to deal with communally held land and the persistent problem of some traditional leaders claiming ownership over all the land under their jurisdiction.
The next step after identifying the relevant owners or rights holders is for the expropriating authority to "ascertain the value of the property". This raises the second red flag for owners of land rights in communal land. The value of land depends on what the land means to different people. For a member of the Umgungundlovu community in Xolobeni in the Eastern Cape, for example, the value of the land may have less to do with its sale value than with its value as an expression of the history and identity of a people. Rights in the land depend on membership of a community. Losing the land means losing all of that. And that is hard to quantify.
Once the expropriating authority has identified all the owners and rights holders on the property and has done an investigation and value of the property, it must publish a notice of intention to expropriate, explaining the objective of the expropriation. Owners or rights holders then have 30 days to say how much compensation they would like to receive. The authority may accept this or decide to negotiate. If they cannot reach agreement, or settle the dispute through mediation, the authority must refer the matter to a court to decide what just and equitable compensation will be.
Critics of the Bill say that the process for expropriation is too cumbersome and there are too many decisions along the way that can be reviewed in a court of law. Such a long process will not speed up land reform - or save the state money. The compensation money saved may well be spent on court cases against land owners.
But making expropriation simpler, quicker and cheaper may also deny vulnerable land rights holders the opportunity to stop the state from expropriating their land for mining or other projects. Rural black communities have been by far the most vulnerable to losing their land to the state and mining companies in the last decade or so. Weak expropriation legislation will only worsen their situation.
Striking the correct balance between protecting land rights of vulnerable people and giving government enough power to expropriate land where appropriate is a difficult task. The best option may lie in not putting all land reform eggs in the expropriation basket. This was the recommendation of Kgalema Motlanthe's High Level Panel to Parliament in 2017 and still holds true. Expropriation as a means of effective land reform may work if government, at the same time, rolls out a land administration system that actually reflects the reality of land rights of rural South Africans by doing the following:
Defines in law what the "equitable distribution of land" means and how to measure it.
Fixes the Land Claims Court and the Restitution of Land Rights Commission.
Gives citizens under the jurisdiction of traditional councils the legislative tools to enforce their land rights.
If these pieces of the puzzle fall into place, expropriation may yet fulfill some of its promise.