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The government has published an updated draft of its land expropriation bill before its official presentation to parliament.
The bill is intended to replace the current Expropriation Act of 1975 and clearly spells out how and when expropriation can take place in South Africa.
The Department of Public Works and Infrastructure drafted the expropriation bill after a lengthy consultation process that included receiving around 50,000 comments from South Africans.
The department also consulted with business, labor, and community stakeholders through the National Labor and Economic Development Council (Nedlac).
The bill is part of the government’s work to ensure that comprehensive land redistribution is implemented for agricultural purposes, human settlements and industrial development, Vice President David Mabuza said.
“The publication of this important bill is a compelling indication that the government is working to achieve redress and fulfill the aspirations of the people for an equitable society,” Mabuza said.
“It is a recognition of the urgency needed to address past injustices and restore land rights in a responsible manner, while ensuring that food security is maintained; that equitable spatial justice is achieved and that investment continues to expand our industrial base ”.
In an accompanying explanatory statement, the government said that expropriation without compensation is not a “silver bullet”, but only an acquisition mechanism that, in appropriate cases, will allow land reform and reparation.
The government said the bill also provides certainty to South Africans and investors because it “clearly describes” how the expropriation can be carried out and on what basis. This legislative certainty is critical as the country rebuilds its economy and invests in communities.
When can the land be expropriated?
One of the key focuses of the bill is the circumstances in which land can be expropriated without compensation. This includes:
- When the land is not being used and the owner’s primary purpose is not to develop the land or use it to generate income, but to benefit from an appreciation of its market value;
- When a state body owns land that it is not using for its basic functions and it is not reasonably likely that it will require the land for its future activities in that regard, and the state body acquired the land for no consideration;
- When an owner has abandoned the land by not exercising control over it, despite the property registration in terms of the Law of Deed Registries;
- When the market value of the land is equivalent to or less than the present value of the direct state investment or subsidy in the acquisition and improvement of the beneficial capital of the land;
- When the nature or condition of the property represents a health, safety or physical risk to people or other property.
When will compensation be paid?
Public Works and Infrastructure Minister Patricia De Lille said the bill outlines the circumstances in which it may be fair and just for no compensation to be paid.
“Anyway, that does not prescribe that any compensation shall be paid under these circumstances, he said. The bill establishes that the amount of compensation will be determined by the courts. “
Section 25 (3) of the Constitution determines that the amount of compensation and the time and form of payment must be “fair and equitable.” It must also reflect a “fair balance between the public interest and the interests of those affected”, taking into account all relevant circumstances. Factors to be considered include:
- The current use of the property;
- The history of acquisition and use of the property;
- The market value of the property;
- The scope of direct state investment and the subsidy in the acquisition and improvement of the beneficial capital of the property;
- The purpose of the expropriation.
You can read the full invoice below.
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