Estimated reading time: 5 minutes
Approved this week, Land Expropriation without compensation will now take effect. This follows the Government approving the Land Court Bill and the Land Expropriation Bill.
The National Assembly first passed the Land Court Bill on Tuesday, 27 September 2022. The Land Court Bill proposes to establish a specialist Land Court, with its judgment appealable by the full bench of that Court to deal with all land-related matters, as regulated by legislation.
Parliamentary spokesperson, Moloto Mothapo, said this will facilitate the speedy disposal of cases and contribute to the development of appropriate jurisprudence in relation to land matters.
“Notably, the Land Court is established as a court of law and equity in respect of the Restitution Act and has the status of a High Court that has the authority, inherent powers and standing, in relation to matters under its jurisdiction,” said Mothapo.
The Bill also proposes a cheaper and speedier alternative dispute resolution mechanism in the form of mediation. In addition, the Bill makes provisions for future legislation (new or amending legislation) to confer jurisdiction on the Land Court, as and when the need arises.
Section 22(1) of the Restitution of Land Rights Act 22 of 1994 (“the Restitution Act”), establishes a Land Claims Court with exclusive jurisdiction in respect of restitution claims arising from the Act.
The court will additionally have exclusive jurisdiction to deal with matters arising from the application of the Land Reform (Labour Tenants) Act 3 of 1996 and it shares jurisdiction with the magistrates’ courts, in respect of matters arising from the application of the Extension of Security of Tenure Act 62 of 1997.
However, Mothapo noted that the Restitution Act never envisaged a permanent court with permanent judges, instead, the “Land Claims Court was established as a dedicated court with a limited lifespan to deal with claims for restitution of land”.
“However, the restitution process became protracted and is still not completed. A lack of permanency of judges presiding over matters before the Court and the absence of a permanent seat has contributed to the slow processing of and backlogs in land restitution claims, to the dissatisfaction of land claimants,” Mothapo said.
With this in mind, the National Assembly (NA) then passed the Expropriation Bill on Wednesday, 28 September 2022.
In processing the Bill, the Portfolio Committee on Public Works and Infrastructure engaged with the public, and organised citizen groups, political parties, and traditional leaders across the country to learn their views on the Expropriation Bill.
It had further engagements with stakeholders, citizens and civil society organizations to listen to formal presentations on specific clauses of the Bill. The committee further collected views from broader society through email and WhatsApp to deepen its understanding of the views of the public.
According to the government, the purpose of the Expropriation Bill is to repeal the existing Expropriation Act of 1975 to provide a common framework in line with the Constitution to guide the processes and procedures for the expropriation of property by organs of state.
It further seeks to provide for certain instances where expropriation with nil compensation may be appropriate in the public interest. The NA plenary agreed to both Bills today. The Bills will now be sent to the National Council of Provinces for concurrence.
Reflecting on the matter, Public Works and Infrastructure Minister, Patricia de Lille has moved to assure South Africans that government has no intention of using the Expropriation Bill to arbitrarily seize land from private owners.
She was speaking during a National Assembly debate on the Bill on Wednesday evening, 28 September 2022.
It should be noted the bill was passed 14 years after it was first introduced and is aimed at replacing the Apartheid era Expropriation Act of 1975.
“I am certain we can agree arbitrary expropriation is not the kind of pain and injustice that democratically elected representatives will subject South Africans to again. It is our responsibility to correct the historic injustice of land ownership patterns in South Africa.
“It is extremely dangerous to suggest that government will arbitrarily take people’s property such as their homes. [Land] is an emotive issue. Across the country, there is still great pain being felt by people of colour who were stripped of their homes and denied the right to own property under the Apartheid regime.
“We can debate our points but what is wrong is to instil fear mongering and distort the facts in a debate about land and this is done all too often. Many times, those against the Expropriation Bill have been people who were never subjected to laws that stripped people of their property or rights to own property,” de Lille said.
De Lille, however, emphasised that the “injustices of the past” must be corrected in Democratic South Africa.
“We must remember that still, today, mainly people of colour live on the outskirts of our towns and cities, far away from economic opportunities and do not own any land, thanks to the apartheid regime’s draconian laws.”
“It is our responsibility to correct this historic injustice. These are the wrongs of our past that we have been working to remedy since the advent of South Africa’s democracy in 1994.”
She further explained that the new Bill has been drafted in order to ensure that legislation is in line with Section 25 of the Constitution. “The 1975 Act is inconsistent with the Constitution in many respects. The current bill proposes to bring the law in line with the Constitution. The Constitution provides that compensation for expropriation must be “just and equitable” having regard to all relevant circumstances.”
“The Bill outlines circumstances when it may be just and equitable for nil compensation to be paid. It does not prescribe that nil compensation will be paid in these circumstances. The Bill provides that the amount of compensation will be determined by the courts.”
With this all in mind, what are your thoughts? Let us know below.