According to the expropriation bill submitted to parliament in October 2020, Expropriation is a “compulsory acquisition of property”, however such compulsory acquisition is limited to public purpose or public interest in terms of Section 25 of the Constitution. The term compulsory is to the exclusion of other purposes that are not related to public use or public
338 Sihlobo et al. (n280).
interest, there expropriation in terms of the bill is limited to land reform, public use, or interest. And as such public purpose is defined by the bill to include any administration of provisions of any law by an organ of state, whilst public interest is defined to include the state commitment to land reform and other reforms that bring about an equitable change to historical disadvantaged people and consequently redress the historical injustices.
Accelerating delivery of land and ensuring that there are enough resources to assist land reform beneficiaries with support services to aid them to use land productively, is one of the objectives of proposed expropriation without compensation. Which in principle seeks to amend Section 25 of the Constitution particularly the provision of granting just and equitable compensation for expropriated property. However, the Expropriation bill that was brought before parliament last year, seems to seek to regulate the circumstances in which a landowner or holder is eligible for compensation. Ideally the bill intends to deny landowners or land holders compensation for the value of the land but compensate for the developments made on the land in question. Although this proposition could be very challenging to landowners who have loaned money and used the land as security. The state is not clear or rather not explicit on the issues of carrying land debt, however it has made it clear that there is no obligation on the expropriating authority to pay compensation to landowner or holder. Furthermore, the bill outlines the circumstances in which it deems fit for state to pay nil compensation to landowner or holder. Such circumstances are outlined as instances where land is not used and the owner’s intention is not to develop nor use the land to generate income, but rather benefit from the appreciation of the land market value. Also, in instances where an organ of state holds land that is not used for its intended or core purpose nor does the organ of state intends to use it for such purpose in future. Including in the event where a landowner has abandoned the land or either failed to exercise control over it.
However, this could mean an end to the underutilised, abounded redistributed land. The state focus is to ensure that land is used productively to both remedy the historical injustices of the past and to contribute to the economy of the country. The bill further states that compensation will not be payable where the market value of the land is equal to or less than the present value of direct investment or subsidy in the acquisition and beneficial capital improvement of land. Lastly where the condition of the property poses danger to persons or other property. However, propitiation without compensation is not limited to the above- mentioned circumstances, the state may equate nil payment where circumstances deems fit. According to Boshoff and Sihlobo, the state will not ordinarily equate nil compensation
under the above-mentioned circumstances.339 However, Section 12(3) of the bill should be read to interpret that such circumstances will be considered for a nil compensation should the court find it just and equitable to do so. Therefore, the nil compensation is not automatic to the above- mentioned circumstances, but it is subject to court findings.
The bill sets out the procedure in which the expropriation will be carried out, firstly the designated officials will investigate the land and appoint a valuator to evaluate the land and developments thereon. The expropriation authority will then give a notice of intention to expropriate to the landowner, who has to respond to it within 30 days from the date of receipt. The landowner’s response must include amount claimed for developments and any restrictions may be available regarding the land in question. The expropriating authority will be equally required to respond to the landowner within 20 days of receipt of landowner’s response. The expropriating authority’s response must indicate whether the claim is accepted or rejected, and if rejected an offer must be made. If both the owner and the expropriating authority cannot agree within a period of 40 days from the date of the owner’s response. The parties may either employ the provisions of Section 21 of the bill and approach the competent court of law for a relief or the expropriating authority may elect to proceed with the expropriation, continue to negotiate or not. In an event where the expropriation authority proceeds with the expropriation, a notice in terms of the expropriation bill must be furnished. Also, in an event where the expropriation authority elects not to continue with the expropriation, same must be made known to the owner and also advertised on the government gazette, furthermore an expropriation authority may either elect to continue negotiating with the land owner, until a suitable decision or compromise is reached.
Although this approach of compensating for developments not the market value of the land could lead to unending civil claims against the state. Since it is in contravention of the Property Valuation Act, which provides that the value of the property “must reflect an equitable balance between the public interest and the interests of those affected by the acquisition, having regard to all the relevant circumstances, including…”340 the factors set out in section 25(3) of the Constitution. However, Pocock is of the view that the legislators of the Bill appear to have promoted “public interest” as the overarching factor underpinning
339 Theo Boshoff and Wandile Sihlobo, Policy brief: Expropriation Bill 2020, Agbiz.
340 Property Evaluation Act 17 of 2014.
an amount of “just and equitable compensation”.341 Pocock view is supported by the view that if public interest is a method of evaluation, then how do you value or calculate public interest in the commercial world. Therefore, determining the balance of interest, it will require a specialised tribunal to clearly interpret the legislation to give effect to the objective of equitable balance of interest between the public and the land holders. Hence the need to increase capacity of land claim court or perhaps a separate land court as per Minister Lamola’s media statement of the 1st of March 2021. According to the Minister of correctional services there might be a soon to be submitted land court bill to parliament. The bill proposes an independent law tribunal that will deal only with land related matters particularly matters emanating from expropriation without compensation and that of land claims. Essentially the land court will deal with the “systematic challenges faced by land claims court and ensure speedy precipitation of land claims court by ensuring that permanent judges are appointed”.
Perhaps an additional specialised court could be an answer to unwiring challenges of land claims that are left unattended by the state, due to lack of capacity to legally address the issues. Acquiring of land is equally challenging as redistributing it, the state needs to prepare both legislation and judicially to deal decisively with land matters.
4.5.2 What measures have been put in place to ensure its successful implementation