1 March 2021
Secure property rights are a precondition for prosperity. The Expropriation Bill, if passed in its current form, strikes at the heart of private property rights and violates the principles underlying the Constitution and the Rule of Law. This is according to the comment submitted on the Bill by the Free Market Foundation (FMF).
In its submission (view here), the FMF has made detailed arguments that several of the Bill's definitions, including "expropriating authority", "public interest", and "public purpose", are too vague, would entail absurd consequences, and would fail the requirements of the Rule of Law. The FMF has drawn attention to these problems and made recommendations to ensure constitutional compliance and protection for property rights. Also, that a socio-economic impact assessment (SEIA) be undertaken as required by Cabinet mandate. The Bill is being presented to the public in the guise of social justice and land reform when, in reality, it is undermining the public's freedom.
One of the most heinous aspects of Apartheid was denial of property rights. This Bill, however, will mean that all South Africans, especially black people, will never enjoy the rights for which many fought and died. While most white investors, suburban residents and farmers have resources with which to protect themselves, most victims will be poor blacks whose property will be misappropriated for dams, roads, airports, political projects, mines, and the like. Like under Apartheid, the Expropriation Bill would once again make the ownership of property dependent upon political whim.
Section 1(c) of the Constitution provides for the co-equal supremacy of the Constitution and the Rule of Law. The Rule of Law, among other things, requires that law be clear, non-contradictory, and reasonable, and that provisions be written in such a way as to not give officials unbridled discretionary powers.
The Bill vests too much unconstrained, discretionary power in the Minister. One provision is that of "partial expropriations" which allows the Minister, if he or she is "satisfied" that the property is no longer viable after a portion thereof has been expropriated, to take the rest irrespective of the views of the owner. This power is inappropriate in a society that upholds the Rule of Law.
However, it is not just the Minister but lowly and often unelected officials who will have the power to determine properties for expropriation thus allowing patronage, corruption, and the settling of scores. Recent examples show this to be happening already.
Bizarrely, the Bill gives executive government entities the power to refuse expropriation. Yet expropriation, by its nature, is involuntary. Section 9(1) of the Constitution guarantees equal application of the law. Rules applicable to ordinary South Africans cannot be different from those that apply to government entities and officials.
References to labour tenants and land held for speculation should be removed. On the other hand, providing nil compensation for abandoned land and State-owned land is less problematic.
Pertinently, however, FMF Executive Committee member Martin van Staden adds, "The Bill's definition of abandonment is potentially dangerous. It provides that when one fails to exercise control over a property, that property is regarded as abandoned. This means if criminals kick you out of your house, government might see that as 'abandonment' and seize your house without paying you anything. The other common law requirement for abandonment – no manifest subjective intention to own – must also be recognised to guard against this kind of abuse."
Despite the requirement that all proposed bills should be accompanied by a socio-economic impact assessment (SEIA), this is absent from this Bill. A properly constructed and independent SEIA ensures that all policy is evidence based and not at the whim of politicians. For this reason alone, the Bill must be withdrawn.
The FMF played an important role in the creation and entrenchment of section 25 of the Constitution, the property rights provision, in the mid-1990s. We therefore consider it of paramount importance to engage continuously and diligently in defending the morality and integrity of property rights.
Van Staden concludes, "The Bill makes it too easy for government to engage in expropriation in general, whether with or without compensation. There must be additional safeguards for the rights and interests of citizens and others who own property in South Africa."
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