Yesterday, the National Assembly adopted the Expropriation Bill and – with that – took a giant leap in undermining the rights of property owners in South Africa. The FW de Klerk Foundation, together with numerous other civil society organisations, voiced deep concern about the renewed legislative assault on property rights, highlighting that the adoption of this Bill would harm agricultural production and food security, future domestic and foreign investment, as well as other sectors of the economy – and consequently put South Africa’s future political and social stability at risk.

The Bill alarmingly allows for expropriation with “nil compensation” in certain instances, which may include where an owner purchases land for resale at a profit and where an owner “fails to exercise control” over the land. According to the Western Cape High Court’s recent ruling in the eviction of Bulelani Qolani, owners might be deemed to have lost control of their land once an illegal occupier has gone beyond “merely putting pegs in the ground.” They would then require a court order to evict the occupier under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. The potential assault on property rights is rounded off by the Unlawful Entering on Premises Bill – which offers occupiers the defense that they “reasonably believed that they had title to or an interest in the premises that entitled them to enter the premises”.

Section 25 of the Constitution makes provision for expropriation in the public interest – which specifically includes land reform. However, compensation must either be agreed upon by the affected parties or approved by a court in a manner that reflects an equitable balance between the public interest and the interests of the owner. The recent adoption of the Land Court Bill poses another threat to property rights as it seeks to establish a permanent and specialist Land Court with the same status as a High Court to preside over all matters relating to land disputes and eviction. It also seeks to appoint judges based on racial and gender demographics, assisted by two “assessors”- appointed by the Minister of Justice and Correctional Services – who may overrule judges in adjudicating “upon any question of fact”. This “court” would be an expropriated owner’s only recourse.

The attack on property rights doesn’t end there: the Bill is intended to deal with the expropriation of all forms of property – not just land. This is evident from its accentuation of the section 25 definition in its preamble that “property is not limited to land”; from several clauses in which the Bill refers to “expropriation of land” as only one of the facets of potential expropriations; and from a specific reference to the expropriation of “intangible property”. This Bill might empower national, provincial, and local authorities to expropriate agricultural land for the purposes of land reform; private residences to achieve equitable housing goals; or privately held shareholdings in companies in pursuit of the government’s goal of imposing demographic representativity in the private sector.

The FW de Klerk Foundation remains resolutely opposed to expropriation without compensation, and reiterates that the Bill – insofar as it contravenes section 25 of the Constitution and the rule of law – is unconstitutional and should be abandoned together with all initiatives and actions aimed at undermining the property rights of all South Africans.

Land reform and the expansion of property rights to all South Africans are of the utmost importance. The failure of land reform thus far must be ascribed primarily to the incapability of the government departments involved in the administration of land reform, and to corruption. Contrary to National Assembly Public Works Committee Chairperson, ANC MP Nolitha Ntobongwana’s assertion that “this Bill will allow government to address the land question and bring dignity to our people”, the FW de Klerk Foundation asserts that by working within the parameters of Section 25 and the mechanism it provides for ‘”just and equitable” expropriation, government could speed up land reform substantially and extend property rights to all South Africans.

The Foundation will continue to oppose this Bill as it moves before the National Council of Provinces and any other laws that contravene property rights as they are enshrined in the Constitution – laws that seek to abridge the rights of property owners and vest them in the state without any proper engagement with such owner or offer of reasonable compensation.

– Tyla Dallas, FW de Klerk Foundation Manager: Constitutional Programmes