Expropriation Bill fails to consider other constitutional rights

By Daniela Ellerbeck, FOR SA Legal Advisor

Parliament’s Portfolio Committee on Public Works is currently calling for the public to give their comments on the Expropriation Bill until Sunday, 28 February 2021.  Those who are interested in saying their say can do so one of three ways:

1. By sending their input in an email to Ms Nola Matinise at expropriationbill@parliament.gov.za; or
2. Submitting this form; or
3. Sending a WhatsApp message to 060 550 9848.

The Bill, which is doing the rounds in Parliament again after initially failing to be signed into law for lack of public participation, aims to replace the Expropriation Act of 1975.

Expropriation without compensation

Section 25 of the Constitution, which is the country’s highest law, currently allows for property to be expropriated only if it is in the public interest or for a public purpose, subject to “just and equitable” compensation - that has either been agreed upon or approved by a court.

The report by Parliament’s Constitutional Review Committee concluded that section 25 of the Constitution must be amended to “to make explicit that which is implicit in the Constitution, with regards to Expropriation of Land without Compensation, as a legitimate option for Land Reform…[and] that Parliament must urgently establish a mechanism to effect the necessary amendment to the relevant part of Section 25 of the Constitution”.  Parliament’s Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of Constitution is currently still working on amending section 25 of the Constitution to allow for expropriation without compensation (“EWC”).

The Bill aims to allow for EWC in clause 12, and for urgent expropriation in clause 22.

In short, the Bill is seeking to provide for property to be expropriated without compensation before the Constitution has been changed to allow for it.

Parliament, therefore, finds itself in the situation of putting the cart before the proverbial horse.

What one needs to know

The Bill’s definition of “property” is not limited to land.  Without this limitation, property will mean anything from land to intellectual property – or even the clothes on a person’s back!

The Constitution protects the fundamental right to religious freedom (section 15), which includes the right to practise one’s faith in a community (section 31). Furthermore, the State is bound by these rights (section 8(1)) and is constitutionally mandated to respect, protect, promote and fulfil these rights (section 7(2).

The Bill, however, fails to consider how it might impact the exercise of these rights, neither does it make provision for them.  It could, therefore, potentially affect the ability of the millions of believers in South Africa (across different denominations, churches and faith groups) to meet together in buildings located on land in the exercise of their constitutional rights, should religious organisations find their land or building the subject of EWC.

What FOR SA proposed

In light of the procedural concerns surrounding the Bill, FOR SA has urged the Committee to approach the Constitutional Court for an answer regarding whether the Bill’s proposed EWC process is constitutional under the Constitution as it currently stands.

We further asked that the definition section of the Bill be changed so that “property” only refers to land, and so that “public purpose” is defined with a closed and defined list of factors that need to be met for EWC to be considered as being for a “public purpose”.

Amongst other things, we have asked the Committee to include a clause that exempts “[l]and that is owned and used in connection with the exercise of the constitutional right to religious freedom and the rights of religious communities” from EWC.

You can read the full FOR SA submission here.

Conclusion

Given the wide impact on South Africans should this Bill become law, FOR SA encourages everyone to use their democratic right to be involved in the laws our Government makes, and to send in their comments to the Committee.  We understand that they have already received in excess of 50,000 submissions – so this is a time when you can make your voice heard!