The new expropriation policy’s questionable premises

Martin van Staden says the entire provision relating to EWC is unconstitutional

The new expropriation policy’s questionable premises

19 January 2021

Government’s proposed framework for expropriation, the Expropriation Bill, 2020, is open to public scrutiny, and there is much to criticise.

Governments are meant, by most accounts, to protect people’s rights and property and ensure public order. On this, many would agree. Some, however, go further by adding on certain obligations to this core purpose, which by necessary implication vests government with more power. One of these is the power to expropriate private property.

There are serious questions to be asked about the legitimacy of expropriation per se, but for now, let us assume that it is acceptable that government must sometimes engage in expropriation. With that in mind, government’s Expropriation Bill still operates on certain fundamentally flawed premises that need to be addressed before the proposal becomes law.

Equality before the law?

The first problem is the bill’s approach to equality before the law. As the Institute of Race Relations has also pointed out, the bill tilts the scale heavily in favour of government in its contemplated interactions between property owners and the State. The most regrettable of these provisions is where the bill allows organs of State to refuse to have their property expropriated for a public purpose or in the public interest, but private owners have no such option.

In other words, if the parks department of the Hantam municipality in the Northern Cape owns a large piece of unused land that could be utilised for agricultural or other purposes, it could simply say “no” when the national Department of Public Works proposes to expropriate it. On the other hand, if a productive farmer like David Rakgase in Limpopo is threatened by an expropriation, he has no choice in the matter.

We are told by the democratic theory upon which the Constitution of South Africa is based that the relationship between government and citizen is supposed to be unequal. That is, unequal in favour of citizens. The South African public, accordingly, has delegated to government various powers that may only be utilised in service of the public. In other words, government is a servant of the people, and the people are its master. The Expropriation Bill upends this relationship and puts government in the position of master. This flies in the face of both the principle and the right to equality before the law.

Perverse conception of "choice" and "agreement"

The bill also adopts a perverse conception of choice and agreement, mostly but not only in its provisions relating to compensation for an expropriation. It provides lip-service to the idea that the property owner and government will engage in a “negotiation” for an agreeable amount of compensation for the property being targeted for expropriation. But in reality, the bill reserves to government the power to proceed with the expropriation even in the absence of such a consensus.

It is not debatable that expropriation itself is non-consensual. But the compensation for the expropriation ought to be based on consensus, for precisely the reason that expropriation is non-consensual. Compensation is government’s way of apologising for the harm and inconvenience it is causing the owner; and as such the owner must have far more latitude in determining compensation than the bill presently allows. At the very least, however, government must drop the language of choice and agreement from the bill if it intends adopting it in its current form.

Related to compensation is when the property is transferred from the owner to the government. Logic, common sense, and a basic understanding of justice dictates that government may only take possession and/or ownership of the property after it has fully paid the agreed-upon amount in compensation. While the bill alludes to this being the case, it in fact allows payment to be “delayed”, and also provides that if there is a court dispute between the owner and government on the amount of compensation, government may still take possession of the property before the dispute has been settled.

In other words, owners could be left not only without their property – on which their livelihoods might depend – but also penniless. This would be a grave injustice that a valid constitutional order absolutely does not condone.

Expropriation without compensation

Finally, but most importantly, the bill provides for expropriation without compensation (EWC). The very notion of EWC itself is offensive to every principle of natural justice and legality that make up both South Africa’s African customary law and Roman-Dutch/English common law legal regimes.

More specifically, the bill lists five circumstances under which EWC may take place, but does this in a non-exhaustive (open) list. In other words, government may, on a whim, decide that another set of circumstances not spelled out in the legislation justifies seizing someone’s property without paying for it.

Such a situation directly contradicts the principle of the Rule of Law, another value upon which the Constitution is based. The Rule of Law requires legal certainty and adequate protection of basic constitutional rights. Allowing government to make up circumstances, on the fly, for when it will dispossess rights-bearing members of the public of their assets satisfies neither of these requirements.

The entire provision relating to EWC, technically, is presently unconstitutional, because the Constitution has itself not yet been amended to allow for uncompensated expropriation. And even if the Constitution is so amended – one hopes not – serious questions of constitutional legitimacy will arise.

If we are to allow government to engage in expropriation of private property (and we probably should not), then it is of the utmost importance that a legal regime that most carefully regulates such expropriations is adopted. Such a regime must satisfy the requirements of fairness, natural justice, and the Rule of Law. As the Expropriation Bill currently stands, the South African public will be left wanting.

Martin van Staden is a Legal Fellow at the independent business community Sakeliga and is pursuing a doctorate in law at the University of Pretoria. More information at www.martinvanstaden.com.