Abstract
The dawning of a new constitutional dispensation necessitated an in-depth and all-encompassing land reform programme, given the South African history of dispossession embedded in colonialism and apartheid. A uniquely South African programme was required, as it had to redress the impact of past racially based land control approaches while simultaneously being forward-looking: promoting access to land and tenure security. In this regard three inter-connected sub-programmes were developed, constituting redistribution (broadening access to land), tenure reform (upgrading insecure rights) and restitution (restoring land and rights in land lost after 19 June 1913). All of these sub-programmes are constitutionally grounded in section 25(5), (6) and (7) respectively, and further bolstered by section 25(8) of the Constitution. With regard to redistribution specifically, a market-based or market-assisted approach was followed, founded on the willing-buyer-willing-seller principle. Increasingly this approach was criticised – for being too complex and burdensome, but more importantly, for making land reform far too expensive and thus unsustainable. It was in this context that a twofold intervention was called for: adjustment or regulation of the market in terms of which land and property could be acquired for land reform purposes on the one hand and reconsideration of the framework within which expropriation operated on the other. Recent developments in this arena include the promulgation of the Property Valuation Act in 2014, embarking on a review process of section 25, the property clause in 2018, and the publication of the Draft Expropriation Bill on 21 December 2018. For the first time provision was made for the possibility of expropriation with nil compensation with respect to five categories of land in particular.
This contribution explores the recent developments in light of the land reform programme, in particular whether expropriation with nil compensation is indeed the solution so desperately needed. This is approached by first providing a historical background in terms of which the combined effect of land control measures, regulating the movement of persons to and from rural and urban areas, controlling natural resources and regulating labour, all on the basis of an individual’s racial background, underscores the need for an all-encompassing land reform programme. This is followed by a brief exposition of the three sub-programmes referred to above, while indicating whether, and if so, to what extent expropriation could be a useful tool in the particular sub-programme. Having provided the necessary background recent interventions encapsulating the Property Valuation Act and the Draft Expropriation Bill of 2018 are thereafter analysed in detail.
It is clear that the Property Valuation Act has an important role to play and that this act, coupled with the 2018 regulations, can go a long way towards making expropriation more affordable. However, despite the Property Valuation Act’s specifically providing that valuation has to take place where property is acquired for land reform purposes, it is not clear whether the Office of the Valuer-General has a role to play in all such acquisitions, or perhaps only in some instances. That is the case following recent judgments handed down by the Land Claims Court. While the alignment between the Property Valuation Act, relevant land reform measures (e.g. the Restitution of Land Rights Amendment Act 15 of 2014), section 25(3) of the Constitution and expropriation measures is crucial, case law provides no guidelines as yet. This calls for urgent attention.
As the Expropriation Act 63 of 1975, still in use, is not a true reflection of constitutional imperatives and is inherently flawed as it provides only for expropriation for public purposes, realignment was also necessary in this context. The discussion shows that the Draft Expropriation Bill is indeed aligned with the Constitution: with section 25 in particular, but also with regard to section 33, which provides for administrative justice, and section 34, which provides for access to courts. However, there were various shortcomings in and problematic aspects to the bill. Concerning expropriation with nil compensation, provided for in clause 12(3), five categories of land are identified where nil compensation may be possible, having regard to all the relevant circumstances. In this context the bill remains vague regarding (a) the scope, as more than five categories could in actual fact become relevant; and (b) the result, as there may be compensation paid, again depending on the circumstances. While it may seem at first glance as if the bill provides legal certainty, this is not the case in reality. With respect to each of the five categories listed, various problematic aspects are further pointed out in the discussion.
A new expropriation act does not operate in isolation, but functions within a particular constitutional and statutory framework. Depending on the particular facts and circumstances, a variety of measures may be relevant, for example, the Restitution Act where land is to be acquired to restore to communities or individuals; the Extension of Security of Tenure Act 62 of 1997 where land is to be acquired for farm workers, or the Labour Tenant Act 3 of 1996, applicable to labour tenants’ claims. A plethora of disconnections and problems have already emerged in the existing statutory networks. The exact alignment of the various relevant measures is as yet unclear, as alluded to above regarding the Property Valuation Act.
Expropriation is legitimate and constitutionally grounded. It has the potential to be a very effective land reform tool. However, given the prevailing problems with land reform – at all levels – it is highly unlikely that expropriation with nil compensation is going to solve the land reform question. It is not the “silver bullet” so desperately needed. More is needed, including: a clear alignment between the objectives of land reform, the mechanisms to achieve those objectives, and their successful implementation. Undergirding these endeavours is a need for sound policies, effective legislation, careful monitoring, sufficient funding and government departments with capacity and the necessary political will, steered by effective leadership. Expropriation with nil compensation is not going to address these prevailing concerns.
Therefore, while not being the silver bullet, it is at least a calculated shot. It is calculated because there is an indication that five categories of land can in principle be expropriated without compensation. However, it is still a shot in the dark. That is the case because there could be more than these five categories and there may even be compensation paid, including very low compensation, depending on the particular facts and circumstances of each case.
Keywords: expropriation; expropriation without compensation; history of racially based land control; land claims court; land reform; Office of the Valuer-General; property valuation; redistribution