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AgriSA wants more clarity on the latest incarnation of the Expropriation Bill, of which a draft was gazetted on Friday.
The draft bill includes a section that deals with expropriation without compensation. It is widely regarded that the manner in which the bill deals with expropriation without compensation is an indication of what the ANC's proposed amendment to Section 25 of the Constitution will look like.
The bill proposes that the following property types can be expropriated without compensation:
- land owned by a state-owned corporation or -entity;
- land occupied by labour tenants;
- land abandoned by the owner;
- land that is kept for speculative purposes; and
- where the market value is equivalent to or less than the present value of direct state investment or subsidy in the acquisition or capital improvement of the land.
The bill also makes it clear that property cannot arbitrarily be expropriated and that property owners will have recourse to the courts.
In a statement released on Friday, AgriSA says the new bill provides more clarity on expropriation without compensation, but the reach and definitions must urgently be clarified.
It says the Expropriation Bill is not entirely separate from the current debate on the amendment of Section 25 of the Constitution, but essentially provides a political solution that will bring more legal certainty.
"Agri SA is opposed to EWC (expropriation without compensation)," said Annelize Crosby, the head of Agri SA's Centre of Excellence: Land.
"We support the principle that owners should not be in a better or worse position after expropriation. Their position should be unchanged as if no expropriation took place.
"The new wording in the Expropriation Bill gives a discretion to expropriate certain types of land, but the provision is not mandatory," says Crosby.
"The clause also makes it clear that all relevant circumstances must be taken into account before such a step is taken."
Agri SA is most concerned about the expropriation of land occupied by labour tenants. These claims are complex and most of the claims have not yet been verified.
"The status as labour tenants of many people living on farms in KwaZulu-Natal and Mpumalanga has not yet been clarified," said Crosby.
"There are also concerns about the uneconomic nature of many of the parcels of land on which there are labour tenant claims as well as its productive use. The real problem is that the Labour Tenant Act has never been properly implemented."
Agri SA is also still concerned about the definition of "expropriation" as contained in the newly released bill.
The definition limits the term expropriation to cases where the state acquires the property. It considers the definition as too narrow and out of line with international trends where expropriation is understood in a wider context. A narrow definition poses the danger that the state can place all kinds of restrictions on ownership without compensating the owner.
Agri SA will submit written comments on the bill and actively participate in all the consultation processes that follow.
The bill will probably only appear on the statute books by 2020, Agri SA predicted.
Sixty days have been put aside for public comment on the draft bill, starting from Friday.
Written comments can be submitted to The director general, Department of Public Works, Private Bag X65, PRETORIA 0001. It can also be hand delivered to the Central Government Offices (CGO) Building, 256 Madiba Street, Pretoria or emailed to livhuwani.ndou@dpw.gov.za or johannes.lekala@dpw.gov.za.
After the public comments have been received, the bill will be introduced to Parliament, where it will undergo another public participation process.
In August, the Portfolio Committee on Public Works withdrew the Expropriation Bill so that it can be reintroduced after the Joint Constitutional Review Committee (CRC) finished its work on expropriation of land without compensation.
The CRC's report, which recommended that Section 25 of the Constitution is amended to allow expropriation without compensation, was adopted shortly before Parliament rose, and an ad hoc committee will begin drafting the amendment next year.
The bill had a fraught passage through Parliament. After it was adopted in 2016, then president Jacob Zuma had to refer it back to Parliament after questions were raised about the public participation process while the bill was before the National Council of Provinces.
This bill did not make explicit provision for expropriation without compensation.
The bill sought to bring expropriation in line with the Constitution. Current expropriation legislation dates back to the 1970s when John Vorster was still prime minister.
In 2008, a controversial expropriation bill was a shelved after its constitutionality was questioned.
