The Expropriation Bill faces a Constitutional Court challenge if ”unacceptable clauses” are not sorted out.
Farmers’ union AgriSA says it will not hesitate to approach South Africa’s highest court if ”unconstitutional terms” are not corrected.
The Democratic Alliance (DA) says it is also willing to challenge the Bill in the Constitutional Court, and estate agents say they would support such an action.
The FW de Klerk Foundation’s Centre for Constitutional Rights has also launched a scathing attack on the Bill, calling it ”neither constitutional nor lawful, [posing] a serious threat to property rights”.
But the University of the Western Cape’s Programme for Land and Agrarian Studies (Plaas) has said the Bill is not that controversial, and land activists have welcomed the proposed law as overdue.
Driven by Public Works Minister Thoko Didiza, a former agriculture and land affairs minister, the proposed law aims to align expropriation with constitutional principles.
The Bill has drawn fire ever since it surfaced earlier this year because it gives government sweeping powers to decide what property should be expropriated in the ”public interest”, and what should be paid for it. This will limit landowners’ ability to contest such decisions in court, critics argue.
Landowners are unhappy that the Bill stipulates that compensation for expropriated property will not be decided according to its market value. Instead the Bill uses criteria that include how the land has been used, the history of the land and the purpose of the expropriation.
Currently expropriation is governed by the Expropriation Act of 1975, which allows the minister of public works to expropriate for public purposes only and requires market-related compensation.
Ruth Hall, a land analyst at Plaas, says the Bill will include expropriations for land-reform purposes. ”Expropriations take place all the time, quite uncontroversially, for public purposes,” she says, adding: ”This Bill provides for owners who object to the — compensation — to appeal to the courts.” But if they disagree with the compensation offer it will be referred back to government, Hall says.
AgriSA has a huge problem with this, says Annelize Crosby, the union’s land-policy adviser. She argues that it puts government above the judiciary.
Public hearings on the Bill have been scheduled for early May, but some have complained that the deadline for submissions on April 14 will exclude critical stakeholders.
”What is now needed is for government — to say what their approach will be to determining compensation,” says Hall.