It appears to have been missed in the commentary about the new Expropriation Bill that it has been designed for a constitutional position that will soon no longer exist.

The bill references section 25 of the constitution (the “property clause”) as it currently stands. It recognises the powers of courts to set compensation, though in practice this will come too late to help most people — after ownership and possession have already passed to the government.

Yet central to the expropriation without compensation (EWC) drive has been amending section 25. The government and the ANC have been adamant that this will be done. Indeed, they declared as much even before the flawed public hearings were completed, and again after the weight of public opinion had clearly been shown to be against an amendment.

Whether this bill will still be constitutional should an amendment be pushed through is an open question. Recall that just before the Covid-19 pandemic hit the ANC announced that it would be seeking a change to the proposed amendment to place expropriation and compensation decisions in the hands of the executive, not the courts.

Much legislation looks very different when it is passed compared to the form it took when it was introduced. With changes in the constitutional context looming, it may be premature to greet the Expropriation Bill with relief, or to believe that it introduces “certainty”.

Terence Corrigan
Institute of Race Relations

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