OPINION

TAU SA objects against proposed Expropriation Bill

Union wants President to send bill back to Parliament to bring it in line with the Constitution

Media Statement from TAU SA on Expropriation Bill

2 June 2016

Expropriation Bill

The undermentioned petition by TAU SA has been sent to the President of the Republic of South Africa which raises TAU SA’s objections against the proposed bill.

PETITION TO THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA BY THE AGRICULTURAL UNION TAU SA REGARDING THE EXPROPRIATION BILL OF 2015

1. TAU SA herewith present a petition to the President of the Republic of South Africa to object to some of the provisions in the Expropriation Bill of 2015 and to highlight some of the consequences that will flow therefrom should the Bill be signed in its current form.

2. The main effect of the Bill is to render millions of black, coloured, Indian and white people who own their homes, vulnerable to the expropriation of their properties, as well as people with customary land use rights and owners of other property.

3. The definition of “expropriation” in the Bill that allows the expropriating authority to take custodianship of property without having to pay any compensation at all is unconstitutional and contrary to the property clause in section 25 of the Constitution of the Republic of South Africa, Act 108 of 1996.

4. Section 25 is aimed at protecting private property rights which will be rendered nugatory by the definition of expropriation in the Bill.

5. It is the view of the TAU SA that the definition is unconstitutional as it attempts to narrow the definition of expropriation to exclude custodianship and indirect and regulatory taking from constituting expropriation.

6. Various provisions of the Bill pertaining to the procedure to be followed in the event of expropriation are furthermore contrary to sections 25, and 26(3) and 34 of the Constitution.

 7. In terms of section 34 a person’s right to have a dispute resolved in a court of law is protected, which right is infringed upon by the procedural provisions of the Bill. 

8. In terms of section 26(3) of the Constitution no one may be evicted from their home without an order of court made after considering all the relevant circumstances, which right will be offended by the application of the procedural provisions of the Bill.

9. In particular, expropriation without access to a court before the expropriation is finalised and ownership has passed to the State, is offensive.  Furthermore the attempt to place the onus on the land owner to challenge the validity of an expropriation order and eviction order following expropriation only after the whole expropriation process has been finalised is also offensive to the provisions of the Constitution.

10. The attempt to shift the onus of the proof on the expropriated owner to prove that the amount of compensation offered is not just, nor equitable, and is also unconstitutional.

11. Similarly, the rights of third parties such as financial institutions with mortgage rights over a property, holders of unregistered rights, and other persons who may have rights or interests in respect of property, are not protected properly or sufficiently in the Bill.

12. The provisions allowing for the aforegoing are contrary to the principle of legality, the rule of law and fundamental common law principles.  It is also directly contrary to the common law protection of property that has been recognised for years in South African law.

13. It furthermore appears that there was limited public consultation and a defective process was followed in respect of public participation regarding the Bill and the contents thereof.

14. TAU SA supports all the arguments raised by the South African Institute of Race Relations in their petition to the President of the Republic of South Africa, which include the objections referred to above.

15. The President of the Republic of South Africa is requested not to adopt and sign the Bill, but to refer the Bill back to Parliament to bring it in line with the provisions of the Constitution.

Issued by Louis Meintjes, President, TAU SA, 2 June 2016