Pam Saxby wrote on the Constitution 18th Amendment Bill in Daily Maverick of 13 September 2021, asking if Parliament is putting the cart before the horse by trying to finalise the Expropriation Bill before finalising the Constitutional Amendment Process. We would like to engage with some of the questions raised in the opinion piece.
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Tip-toeing through the South African legal minefield of land expropriation without compensation
The main point that we would like to engage with is the statement that “before the Expropriation Bill can be passed, the Constitution needs to be amended”.
This is not correct.
The processes running concurrently are confusing and get confused often. Still, it is important to look at them separately as well.
Expropriation Bill
The history of this bill is relatively long and started long before the 18th Constitutional Amendment process. The first attempt at a new Expropriation Bill, aligned with the Constitution, was in 2008. That bill was shelved for fears of unconstitutionality, as it seemed to have excluded the courts’ role in the expropriation process.
The current bill is a changed version of the 2013 Bill, which became the 2015 bill after extensive deliberations. This bill was introduced in Parliament and adopted by the National Assembly (NA) and the National Council of Provinces (NCOP). It was then sent to the President for enactment, but due to a hurried process in the NCOP, it was vulnerable to legal challenges on procedural grounds.
This process was then halted because of the debate around expropriation without compensation. Notwithstanding, in December 2018, a Draft Expropriation Bill was gazetted for public comment, but the prospect of passing was slim because it was the end of the 5th Parliament. The 6th Parliament, therefore, had to revive the bill.
This draft bill was vital as it provided a clear signal in legal language of what the government had in mind for expropriation. It was also clear that whatever the outcome of the constitutional amendment process, expropriation legislation as a “law of general application” in line with the Constitution was still required. This further refinement of the bill always ran alongside the possible amendment to section 25.
The 2018 bill added mainly clause 12(3), which sets out the instances (but not restricted to the instances) where compensation may be nil. This makes it explicit that nil compensation can be paid in certain circumstances (such as abandoned land, land owned by state-owned corporations, etc. The bill can be found here). The constitutional compensation standard of “just and equitable” is still intact, and the discretion is still there to decide when it will be just and equitable to pay nil.
Mention is also made that the bill cannot be implemented without regulations. It is not clear why this is the case. The process is set out in the bill that gives certain people the authority to expropriate and sets out the requirements and consequences of a valid expropriation. This can be done without promulgating regulations.
18th Amendment Bill to the Constitution
Our Bill of Rights is written in “plain language”, consciously steering away from legalese and overly detailed formulations. This is to ensure that the Constitution is flexible and adaptable to endure. So, although Constitutions are generally not cast in stone, they are meant to endure for at least some time.
Constitutions are also “final” documents, in the sense that amending them (and especially the Bill of Rights) are long and complex processes. The current amendment to section 25 is no different and provides evidence of this. While we only will have finality on the process after the local government elections, all indications are that there will not be the required two-thirds majority to adopt the bill to amend the Constitution.
What we do have is the final proposed wording. For convenience, the proposed changes are cited below, with underlining of the additions.
25(2)(b): subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court: Provided that where land and any improvements thereon are expropriated for purposes of land reform as contemplated in subsection (8), the amount of compensation may be nil.’’;
(b): by the substitution in subsection (3) for the words preceding paragraph (a) of the following words:
25(3) The amount of the compensation as contemplated in subsection (2)(b), and the time and manner of any payment, must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including—’’;
(3A) For the furtherance of land reform, national legislation must, subject to subsections (2) and (3), set out circumstances where the amount of compensation is nil.’’;
(4A) The land is the common heritage of all citizens that the state must safeguard for future generations.
Section 25(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.’’
What is important to note here is that the compensation standard remains “just and equitable”, and it clarifies that land expropriated for land reform purposes “may be nil”. This is then in line with the mandate of the Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of the Constitution’s mandate “to make explicit what is implicit” in the Constitution.
By Elmien du Plessis, ZsaZsa Boggenpoel, Willemien du Plessis, Juanita Pienaar, Danie Brand, Jackie Dugard and Johan Lorenzen
