THE strong statements by minister of public works and infrastructure, Dean Macpherson, upon Pres. Cyril Ramaphosa's signing of the Expropriation Act has provoked fierce criticism. His critics have pointed out that expropriation powers are not unknown in liberal democratic states. After all, the pre-constitutional 1975 Expropriation Act had to be repealed by new legislation in order to align the expropriation regulation with the constitution. The latter provides for expropriation in the public interest or for a public purpose – and with compensation.
The “zero compensation" debate remains fierce, even though many experts, since the attempt at the time to amend the constitution to constitutionalise the possibility of zero compensation, have maintained that “zero compensation" does not mean the same as expropriation “without compensation": The former is negotiable, the latter is not .
But the consequences of the new zero compensation framework are somewhat underestimated by some analysts of the political nuances of the new Expropriation Act. It is argued that the minister of public works and infrastructure, who is given expropriation authority in the new law, is a DA minister within the context of the government of national unity (GNU). Consequently, by means of regulations, the minister will be able to remove the sting of fears about radical expropriation programmes from the zero compensation framework.
Moreover, Ramaphosa cannot remove Macpherson just like that: Macpherson has already said that he will only resign if his party leader, John Steenhuisen, asks him to. In the tense situation within the GNU that has prevailed since the controversy over the Bela legislation, Ramaphosa cannot really afford to get rid of Macpherson. So, according to this approach, everything is, as Peach van Pletzen would say, leghe, and as people at Nampo would say, klopdisselboom.
Town with many sheriffs
The problem is that the Expropriation Act is not the only law that historically deals with expropriation. As a result, Macpherson of public works and infrastructure, despite his primary role in expropriation regulation, is not the only sheriff in town when it comes to expropriation, unless an interim argument succeeds that all references to the old 1975 Act are irrelevant to purposes of the new law. On this I now provide a note on what I predict may be the most controversial conflict over the interpretation of legislation in the context of expropriation, namely the link between the Restitution of Land Rights Act 22 of 1994 (the “Restitution Act") and the new Expropriation Act.
The Restitution Act enables land claims by way of monetary compensation or the restoration of deprived land rights. Land restitution is usually what is referred to when “land reform" is spoken about colloquially in South Africa. However, land restitution is a highly procedural and weighted exercise and certainly not equivalent to the land-grabbing diktat as in our neighbouring country Zimbabwe. However, the zero compensation framework of the new Expropriation Act carries the possibility that a more radical minister of land reform (who administers the Restitution Act) can do their political sums and continue to try to carry out land reform on a large scale through zero compensation offers.
Here’s how it can happen
Section 3(2) of the new Expropriation Act states that the minister of public works and infrastructure may assist those state organs which are not vested with expropriation powers, at the request of the minister responsible for them, to accomplish expropriation on behalf of such a state organ. However, the minister must be satisfied that the intended expropriation is for a public purpose or in the public interest – a DA minister will be able to help apply certain ideological brakes here.
This is where the expropriation snake starts to slither. To determine which state organs are indeed vested with expropriation powers, the definition of “expropriation authority" in the new Expropriation Act must be looked at. It reads:
‘[E]xpropriating authority’ means an organ of state or person empowered by this Act or any other legislation to expropriate property or to bring about the compulsory acquisition of property contemplated in section 2(3) for a public purpose or in the public interest.
Unfortunately for the minister of public works and infrastructure, and his political considerations, expropriation powers are not limited to him and depend on what other legislation says about their particular ministers or government functionaries regarding expropriation.
In terms of section 42E of the Restitution Act, the minister of land affairs (now land reform and rural development) is vested with expropriation powers. In terms of section 42E(2), the minister must apply the 1975 Expropriation Act for purposes of expropriation under the Restitution Act.
A counter question that can be raised here is whether the minister of land reform has any expropriation powers left, seeing that the Restitution Act refers to the 1975 Expropriation Act and not the new Expropriation Act. If the law they have to apply to carry out expropriation for land restitution no longer exists, how can the minister retain expropriation powers?
Section 28(1) of the new Expropriation Act states that all other laws dealing with expropriation must be construed or interpreted “in accordance with" the new Expropriation Act (“interpreted in a manner consistent with ...”). The purpose of this is that the designated expropriators in other legislation take on the meaning of “expropriation authority" in the new law, and that “compensation" in other laws can also be understood as zero compensation for the purposes of the new law.
Circularities in the law
In a circular motion, the new law's definition of “expropriation authority" refers back to the designation of expropriation authorities as contained in other legislation. Furthermore, in section 28(2) the new law takes precedence over other laws that deal with expropriation.
There is therefore an interface that extends from the new Expropriation Act to the Restitution Act. But the direct reference to the 1975 Act in the Restitution Act means that there is no hand that expressly textually reaches out to the new Expropriation Act.
It can be argued that section 28 of the new law provides sufficiently (if it is interpreted purposively, as directed by constitutional case law) that the minister of land reform must now read into it the new Expropriation Act where there is mention of the repealed 1975 act in the Restitution Act. As a result, the minister of public works and infrastructure will effectively be bypassed by the minister of land reform.
A slightly desperate counterargument can be based on jurisprudence from legal interpretation in the case of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (HHA), that the text is the starting point and first consideration of legal interpretation. This will mean that the new Expropriation Act specifically provides for the reading in of definitions in other expropriation-authorising legislation, being the definition of compensation and of expropriation authorities.
The argument is that parliament is only explicit about these two aspects, and does not provide for the reading in of the entire new expropriation regime where the 1975 law is explicitly mentioned in other legislation. Parliament will therefore first have to amend section 42E of the Restitution Act to refer to the new Expropriation Act before the minister of land reform can start expropriating left and right.
This issue of corresponding interpretation between the Expropriation Act and the Restitution Act has, in the context of a PAC minister of land reform, the potential to become a constitutional and political focal point, especially if opportunists in the EFF, MK Party and parts of the ANC apply pressure on the minister.
However, the fact remains that Macpherson is not the Horace on the bridge that some think he is.
♦ VWB ♦
BE PART OF THE CONVERSATION: Go to the bottom of this page to share your opinion. We look forward to hearing from you.
To comment on this article, register (it's fast and free) or log in.
First read Vrye Weekblad's Comment Policy before commenting.