THE new Expropriation Act was signed by Pres. Cyril Ramaphosa last week. In response, a loud, dissonant chorus of protest arose from the ranks of the junior parties in the government of national unity.
The DA went so far as to announce that they are declaring a dispute over the act, as well as over the handling of the National Health Insurance Act, by invoking section 19 of the statement of intent, the document on which the GNU is based. This means the parties will now follow a process of dispute resolution.
The surprising aspect of the DA's opposition, apparently missed by most journalists and media, is that it's not primarily based on a predictable ideological circus show to stir up emotion and gain support. It is actually a technical point highlighting an apparent logical error in the procedure prescribed by the act to resolve disputes around compensation. Macpherson appears to have wanted to make a positive constitutional contribution by pointing out the error, but it was like crying wolf. We'll return to this later.
Not for no-compensation expropriation
The fact is, and this has been confirmed by various legal experts this past week, that the new Expropriation Act, which must replace the 1975 Expropriation Act (every democratic country has expropriation and expropriation legislation) and give shape to section 25 of the Constitution dealing with private ownership of things, is a particularly thorough and prescriptive piece of legislation. It prescribes the process of expropriation down to the finest detail, and thoroughly covers the motivations of public purposes and public interest as well as the principles of justice and fairness of compensation. The act even prescribes a role for the courts in determining compensation, which is not necessarily for the account and responsibility of the landowner.
A large part of the sulfurous vapours from the low-lying marshes that rise every time the words expropriation and compensation are mentioned, actually has to do with the populist left's cries that land must be taken from the settlers without compensation, and the populist right's fears that the settlers' land will be taken, without compensation.
This kind of scenario would only be possible if section 25 of the Constitution could be amended by a two-thirds majority parliament, which alone is capable of removing the requirement for fair and just compensation. However, the chances of such a two-thirds majority parliament are slimmer than ever since 1994.
The emotional climax of this “debate" is actually already a few years in the past – land is no longer such a central issue in public discourse. Moreover, the Expropriation Act has little to do with land reform. Even the old Expropriation Act gave the state various tools to expropriate for the sake of land reform, but it has never been used for this purpose.
The fact that the act is registered with the department of public works and not with the department of rural development and land reform should be a good indication to the land-grab supporters or fears that the new Expropriation Act will also not be used to any meaningful extent to expropriate land for reform purposes, even though the Constitution explicitly gives the state the right to do so.
Apartheid took more land
The most intense emotions in the popular discourse around land reform arise from the idea or wish to take land “without compensation" for land reform. In the popular consciousness, this indicates the moment of retribution when the overweight and rich white settler and his family are marched off the farm with bloodshot eyes by triumphant indigenous people who would then thrive in a state of nirvana on their ancestral lands. As seen on television in Zimbabwe.
However, in the real world, it works differently, and although the idea of zero-rand compensation under the new legislation is theoretically possible, it can only happen after a long process that takes into account a whole series of variables, and which must ultimately be fair and just. It is definitely not a quick recipe for Mugabe copycats.
The irony is that previous expropriation legislation under the apartheid state was used far more to remove white farmers from their land for scant compensation for the horrific idealism of the homeland system, than this new legislation could be misused for political purposes in the future.
Just doing his constitutional duty
To return to the DA and Macpherson's objection to the act. Macpherson says according to the legal opinion obtained by the DA, there is a “fatal constitutional problem" with what was then still the bill. He referred this “problem" and the legal opinion to the president's office on 5 December 2024. However, he only heard from the president again on 21 January, and it was just to notify that the act would indeed be signed, in the form that it was.
The DA feels extremely affronted by the fact that a piece of legislation was signed without proper co-operation from the relevant minister in the department, with a press release issued from an office other than the minister's office. But it's the technical problem that's more important.
Macpherson says section 19 of the act prescribes a process to be followed in cases where the expropriating authority and the owner don't agree on the amount of compensation. Mediation is the first step in trying to resolve the dispute. Should this fail, any party can approach the court over a period of 180 days from the date of the expropriation notice, to determine or confirm fair compensation. If none of the parties has approached the court after 90 days, the owner can approach the expropriating authority and request that the expropriating authority approach the court for help.
Macpherson says the act prescribes a parallel but divergent process elsewhere, in sections 7 and 8: By the time the expropriation notice is issued, the amount of compensation must already be determined. The court process referred to in section 19 is similar to that prescribed in section 8. The owner is thus the person responsible for the court process, which can seriously hamstring such a person.
Macpherson argues it's clear that both processes cannot coexist, and that they are irreconcilable due to an internal conflict between the conditions of sections 7 and 8 and the conditions of section 19. He says the different prescriptions in the act “thus unworkable, and this makes the Expropriation Act irrational, vague and unconstitutional".
Macpherson insists that this is not a matter of interpretation, but a fact, and that the act must go back to parliament to be fixed, which doesn't need to be a complex process. It is very important that legislation cannot be undermined by actions in bad faith.
The idea that this act can undermine private ownership and that it is a preliminary stage for land grabs, says Macpherson, has been planted by some in the ANC and is being exploited to regain support from left-radical ranks.
The parties will meet each other again in dispute resolution.
♦ VWB ♦
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