Three pieces of legislation currently before Parliament pose a serious renewed threat to property rights – and underline the ANC’s determination to proceed with some form of expropriation without compensation by any means. The principal threat comes from the Expropriation Bill (“the Bill”), with the Portfolio Committee on Public Works and Infrastructure having met yesterday to conduct a clause-by-clause analysis with the view to voting on its adoption next week, 14 September.
Expropriation of Land Without Compensation (EWC) remains a key ANC objective, as resolved at its Nasrec national conference in 2017, with the Bill providing a de facto way of promoting this objective without a constitutional amendment. The definition of “expropriation” in the Bill opens the way to the possibility of custodianship with no compensation as ownership does not vest with the State. Should the Bill be passed, it would render title deeds meaningless and – as aptly put by Head of Policy Research at the South African Institute for Race Relations, Dr Anthea Jeffreys – “This risk will not be confined to whites and other minority groups but will extend to the 9.6 million black people who own formal homes, the millions more with customary land-use rights, and the thousands of blacks who have bought more than 6 million hectares of rural and urban land since the repeal of the notorious Land Acts in 1991.”
The FW de Klerk Foundation’s position is that land reform and the expansion of property rights to all South Africans are of the utmost importance and need to be rolled out in line with Section 25 of the Constitution. Land reform remains an emotive issue and is underscored by its continued relevance in the national discourse.
However, the Foundation will continue to strongly oppose any laws that are contravening property rights as they are enshrined in the Constitution – laws that seek to abridge the rights of landowners and vest them in the state without any proper engagement with such owner or offer of reasonable compensation. An individual who has been forced by law to contribute property to some common improvement must be reasonably compensated.
To this end, the Foundation submitted written comments on the Bill, which currently sits before the National Assembly, and will do the same when it moves before the National Council of Provinces. The Unlawful Entering on Premises Bill – also before Parliament – should be read in conjunction with the Bill, given it would allow a person with a “reasonable belief” they had title to or an interest in the premises, to set up camp on such premises. Similarly, the recently published Draft White Paper on the Conservation and Sustainable Use of Biodiversity in SA will also pose a threat to owners of private game farms and wildlife reserves, through the abridgement of white-owned land and state custodianship of all biodiverse land or conservation areas – with compensation not mentioned once in the entire text.
The flooding of this new legislation aimed at indirectly promoting EWC, coupled with the ANC’s coordinated campaign to promote the redistribution of land, has led to a new crisis in SA – orchestrated and illegal land grabs.
The DA is introducing its own Bill in the National Assembly – the Prevention of Illegal Eviction from Unlawful Occupation of Land Amendment Bill (2022) – to address these illegal land invasions. With the intention of the draft Bill to inter alia:
- Limit the application of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998;
- Create punitive measures for those who incite or promote orchestrated and unlawful invasions;
- Provide explicit criteria that must be satisfied during court proceedings prior to a municipality being ordered to provide alternative accommodation; and
- Compel the courts to explore the reasons for the invasion, as well as the maintenance obligations of the occupier’s family when considering judgement.
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. Corruption is another factor that prevents and hampers effective land reform. Section 25 provides a mechanism for government to indeed take positive action in expanding and entrenching property rights for all South Africans. So why can the existing legislation, which enables government to move forward on land reform, not first be exhausted and used properly before new legislation is drafted that puts property rights at risk and – even worse – is not in line with the Constitution?
Should the Bill be adopted and eventually assented into law, it would not only harm agricultural production and food security, as well as future investment and other sectors of the economy, but would also lead to political and social instability – as evidenced by Zimbabwe and Venezuela’s own grapple with the same. Further, it would pose a serious violation to South Africa’s constitutional democracy by undermining property rights and explicitly contravening section 25, which provides for reasonable compensation.
The FW de Klerk Foundation remains resolutely opposed to EWC and reiterates that the Bill – insofar as it seeks to allow for EWC – is unconstitutional and should be abandoned together with all initiatives and actions aimed at undermining section 25. Surely “public interest” demands secure property rights backed by a strong economy and rule of law?
Read our full submission here.