On 13 December 2019, the Structure Eighteenth Modification Invoice (the Modification Invoice) was revealed within the Authorities Gazette. Since then, numerous water has handed underneath the bridge with reference to an modification to the legal guidelines of the Republic of South Africa coping with the expropriation of land with out compensation.
Subsequent to the publishing of the Modification Invoice amending part 25 of the Structure, and as anticipated, the Expropriation Invoice 23 of 2020 (the Expropriation Invoice) was marketed within the Authorities Gazette. The Expropriation Invoice is geared toward offering the mechanisms for and the circumstances underneath which land could also be expropriated with and with out compensation as envisaged by part 25 of the Structure.
The rationale the Modification Invoice preceded the Expropriation Invoice is obvious if regard is needed to part 25(2) of the Structure, which offers for the expropriation of property, however solely when it comes to a legislation of common utility, writes Burton Meyer, director in Cliffe Dekker Hofmeyr’s Dispute Decision follow.
The Expropriation Invoice is that this legislation of common utility and any laws enacted have to be in accordance with the provisions of the Structure of the Republic, failing which, it’s open to problem and being put aside by the Constitutional Court docket.
In the end, many provisions of the Expropriation Invoice might very effectively kind the subject material of constitutional challenges within the Constitutional Court docket.
Part 25 of the Structure in its present kind doesn’t expressly present for the expropriation of property with out compensation and, actually, part 25(2)(b) expressly offers for compensation. The Modification Invoice seeks to alter this place. I’ve already revealed alerts through which I’ve submitted that part 25 of the Structure because it now stands does, by implication, offers for expropriation with out compensation in circumstances the place a courtroom might maintain that such expropriation for nil worth can be simply and equitable within the circumstances.
Nonetheless, the Modification Invoice seeks to create certainty by amending part 25(2)(b) to incorporate a proviso to the impact that, “Supplied that in accordance with subsection (3A) a courtroom might, the place land and any enhancements thereon are expropriated for the needs of land reform, decide that the quantity of compensation is nil.”
The Modification Invoice additionally introduces a brand new part, part (3A) which offers that, “Nationwide Laws should, topic to sub-sections (2) and (3), set out particular circumstances the place a courtroom might decide that the quantity of compensation is nil.”
These amendments have opened the door for laws that empowers authorities to expropriate land with out compensation, being the Expropriation Invoice, and the precise circumstances referred to in part 3A of the Modification Invoice are supplied for in part 12(3) of the Expropriation Invoice.
One of many main issues in regard to the latter part of the Expropriation Invoice is that though the precise circumstances underneath which nil compensation is payable are set out, this record shouldn’t be exhaustive and there could also be different circumstances underneath which land is expropriated for nil compensation.
The Expropriation Invoice is at the moment the topic of a public participation course of throughout which each written and oral submissions are being obtained. The general public participation course of in respect of the Modification Invoice has been finalised and the Advert Hoc Committee established for the needs of introducing laws to amend part 25 of the Structure has lately submitted their written report on the outcomes of the general public participation course of, which report is dated 22 February 2021.
This report is a 79-page doc and a number of the highlights embrace the next:
- In response to the preamble to the Modification Invoice, which preamble consists of the admonishment that little is being finished to redress the skewed land possession sample, the submissions included the truth that farming is a technical job and plenty of farms redistributed within the Japanese Cape are now not viable. “Offering somebody with the land to farm on is not any assure that the farm can be profitable. Thus, funding in some ways have to be finished in help of the farmers for farms to thrive and be sustainable.”
- A secondary submission in response to the preamble to the Modification Invoice was the injury induced to the financial system and the truth that if the property rights had been eliminated, one can not anticipate to have a flourishing financial system. The submissions embrace the influence of the modification on overseas funding and the compounded financial injury which may be induced to the financial system.
- Submissions had been made to the impact that the modification was pointless as part 25 already makes provision for courts to order nil compensation when it’s simply and equitable to take action.
- Lastly, in regard to the proposed insertion of part (3A) within the Modification Invoice, the majority of the submissions proposed the circumstances underneath which nil compensation is payable and nearly all of these associated to circumstances the place property sought to be expropriated was initially acquired with out fee, akin to presents, donations or low sale purchases earlier than 1994.
This public participation course of with regard to the Modification Invoice resulted in additional than 200,000 submissions in regard to the Modification Invoice and we should wait and see whether or not these submissions end in additional amendments to the Modification Invoice and in the end part 25 of the Structure. It will actually additionally influence on the final word model of the Expropriation Invoice that’s enacted into legislation in the end.
- By Burton Meyer, director in Cliffe Dekker Hofmeyr’s Dispute Decision follow