Will Expropriation of Land Ever Affect You?

With the National elections that took place in May, we all ended up getting familiar with the policies each Party stood for, and a few became a topic of contentious discussion, specifically the topic of expropriation of land without compensation.

Many of us naturally were concerned over what that meant for us, our home ownership and or aspirations to eventually own one. The question is, do we have to be concerned?

To answer that fully, we need to understand what expropriation is and if it is applicable to all. In 2020, the Expropriation Bill was enacted into law.

The Bill does somewhat give a definition of what expropriation is, as - “the compulsory acquisition of property by an expropriating authority or an organ of state upon request to an expropriating authority, and expropriate has a corresponding meaning.

Furthermore, expropriation authority is defined by the Bill as- “an organ of state or a person empowered by this Act or any other legislation to acquire property through expropriation;”.

All this can be narrowed down to expropriation is the lawful taking of immovable property by a government authority and or representative, from the current owner. Why would this be necessary?

This Bill is derived from Chapter 25 of the Constitution which in part states:

“Property may be expropriated only in terms of law of general

application—

(a) for a public purpose or in the public interest; and

(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.”

The Constitution was founded on the basis of transformation and to bring about equality and justice after the Apartheid regime and government was abolished.

Unfortunately, however, the inequality brought about by the regime could not be reversed, and the effects over land ownership saw some obtaining the land in accordance with the regime’s policies, and then unjustifiably remaining the owners for centuries thereafter.  

Although the Bill is retrospective, it only applies to certain immovable property. These properties namely are land owned for speculative purposes, land owned by State institutions and land over which the owner does not exercise control (land that the owner has abandoned). The Bill does not mention any residential properties and in the case that those may need to be expropriated, extensive requirements must be adhered to and expropriation without compensation is not possible.

Furthermore, the properties to be expropriated may be only be expropriated in terms of law of general application. Compensation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected. The Minister will also review all relevant factors including the current use of the property, market value, state investment, and subsidy.  The goal is to achieve equitable access to resources and address historical injustices through land reform, and not to create further injustice.

AUTHORITY:

1. Republic of South Africa Expropriation Bill - Department of Public Works
2. https://www.privateproperty.co.za/advice/news/articles/expropriation-bill-update/8890

‍

Written by: Deonalin Pongolani
Moderated and approved by: Glenda Nell

‍