Whose land is it anyway: Will the Expropriation Act change property rights?
Expropriation without compensation (EWC) is taking the spotlight for South Africans. Now, the Democratic Alliance (DA) has joined other parties in taking…
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Expropriation without compensation (EWC) is taking the spotlight for South Africans.
Now, the Democratic Alliance (DA) has joined other parties in taking the Expropriation Act to court. They argue the act, passed by the National Council of Provinces (NCOP), is unconstitutional.
Will it strip property owners of their rights?
Is the Expropriation Act Constitutional?
In an interview on Hot Business with Jeremy Maggs, Bulelwa Mabasa, director at Werkmans Attorneys, discussed the new expropriation act.
Mabasa explained that South Africa already had an expropriation act, one passed in 1975. She described the act as “not a new concept” and “internationally recognised.”
However, Mabasa clarified that a “fundamental argument” against EWC is that it is unconstitutional because the constitution allows for “just and equitable compensation.”
She added that the DA was arguing the court scrap the act because “the NCOP process was not procedurally correct.”
If the party is correct, Mabasa said, “the entire Act will fall because the procedure that led to it being introduced in parliament would have been unlawful.”
But she noted even if the entire act wasn’t constitutional, the new act may have introduced elements that the court could find unconstitutional. Expropriation without compensation would be one such element.
If the court finds that some parts of the act are unconstitutional, rather than scrapping the act, they would return it to Parliament to work on a resolution.
When Land Can be Expropriated Without Compensation
While the recent act appears to be a radical step that could affect property ownership, Mabasa argues that isn’t the case.
Mabasa explained that the section of the new expropriation act dealing with EWC introduces four parameters when land can be expropriated without compensation.
Where land is unoccupied or has been held for “speculative purposes,” applicants could have a claim to the land. This would be land without residents on the plot. It would also be land with no farming activity, development or other operation.
Where the owner owes rates and taxes to the state, the land could be taken without compensation if the debt exceeds the property’s value.
When the state owns the land, it could be expropriated without compensation if the state “doesn’t need it for purposes of its state administration,” Mabasa said.
Mabasa also added that land could be expropriated without compensation when ownership is unknown and cannot be verified.
If these conditions are met, then the act allows EWC to occur.
However, the DA’s issue isn’t with this criterion. Rather, their issue is with wording in the act that says “including but not limited to.” Such wording makes the circumstances vague and suggests that there are more conditions under which land could be taken without compensation.
When questioned whether this new act would chase investors away from South Africa, Mabasa argued it wouldn’t. She suggested that the state couldn’t simply …