Why the expropriation bill is needed — and why it is not enough

The Expropriation Bill is again to be debated in parliament, with written submissions due by the end of February. Like actors in a well-rehearsed play, across society people take up predictable positions, both for and against. Among those leading the charge against the bill is the Institute of Race Relations (IRR) which, having for years produced useful data, now contributes to preserving economic inequality.

This is no surprise. Around the world, in India, Brazil, Philippines and elsewhere, and across history, those who own property have resisted measures to alter property relations. This is precisely why the “property clause” in the constitution was a sticking point in our negotiations in the 1990s.

What is outrageous is that, having won the principle that the state can and should expropriate in the interests of land reform, the ANC in government has not used these powers. A quarter of a century later we are still having to embark on these basic arguments. And we are yet to get an expropriation law that is consistent with the constitution and its Bill of Rights, adopted in 1996.

Expropriation itself is not controversial. The state expropriates as a matter of course in SA — but for limited purposes of obtaining land for public use. This could be for roads, dams, schools or other infrastructure. What it does not do is expropriate for the purposes of redistributing land to the landless, or restoring land to people with historical land claims. This is despite the explicit provisions in the constitution that say it may do so.

The government remains bound by the Expropriation Act of 1975, adopted to protect white farmers whose land was expropriated by the apartheid government for incorporation into the homelands. This old law permits the government to expropriate property to use for public purposes, and requires compensation at the market rate, whereas the current constitution says compensation must be “just and equitable” and sets out five criteria for determining what this is in each case. So, on the face of it, we have a law that contradicts the constitution. A new law is overdue.

Expropriation is fundamentally different from confiscation. Whereas confiscation refers to the seizure of an item by force, expropriation is a law-bound process of compulsory taking of property. It’s well established in law across the world, including in SA.

In 1995, as a graduate student following the early debates on land reform, I attended some of the hearings in the Constitutional Assembly where theme committee 6.3 was debating the property clause. The SA Agricultural Union, the National Party, the Democratic Party, representatives of the mining industry and several of their think-tanks, all defended private property. It was clear what their purpose was: to win a constitution that would insulate private property as it existed then. They would be pleased at how things have turned out. The provisions in the constitution they fought against — such as expropriation and the privileging of the public’s interest in redistribution over existing property rights — have been unused. So while they lost that battle, through the government’s inertia they won the war by default.

The government’s steadfast refusal to expropriate, despite the constitution’s permission, amounts to what my former colleague Edward Lahiff termed a “landowner veto” on the process of land reform. What this means is that where two sets of property rights conflict — those of the owner and those of the dispossessed — the right of the person who possesses the property will always trump everyone else’s, including those who were unfairly dispossessed of the same land in the past. This is contrary to the letter and spirit of the constitution.

Yet the debate thus far on the expropriation bill has been about the rights and interests of property owners. No mention has been made of the rights and interests of those claiming land — for instance, the tens of thousands of claimants who have lodged their claims before the end of 1998, and who are now into their third decade of waiting for the rightful return of their land.

This is not the first time the government has introduced a bill on expropriation. The first was in 2008, which was withdrawn after opposition, then another in 2013, again in 2015, amended in 2016, another in 2018, amended in 2019, and republished in 2020. The trench warfare to stop its enactment has thus far succeeded. But the stakes have increased as the government is under pressure to show it will use its existing powers, while also considering a constitutional amendment.

Let’s examine the actual provisions of the expropriation bill. It prescribes seven distinct steps in an expropriation process. The state can serve a notice of intention to expropriate on an owner of a property. The owner has 30 days to indicate any objections, to indicate what compensation they consider fair, including details of improvements made, and to identify who else would be affected, including unregistered rights holders.

The state has 20 days to accept or reject the owner’s request and offer compensation, providing full details of its reasons for its compensation offer (in my view, the government will struggle to meet this timeline). The owner has 40 days to indicate if they are in agreement. The state then decides whether or not to proceed, and in a “reasonable time” publish a notice of expropriation in the government gazette. After gazetting the owner has 20 days to accept or reject. Then expropriation may or may not proceed. Finally, the owner has 180 days to dispute the compensation in court.

Taken together, this looks like close on a year of to and fro between owners and the government. It is far more elaborate and detailed than the processes required for expropriation for public purposes. The IRR says any compensation dispute needs to be resolved before ownership passes. In a parallel universe where the IRR is in charge, this would tie the process up indefinitely and restore the “landowner veto”.

We need not wonder why the IRR is barking up this tree. The reason is clear: in its world view the existing set of property relations in this country should be preserved. Just as the National Party and its associated lobbies in the 1990s, which resisted the inclusion of expropriation in the constitution and its application to land reform, the IRR is on the wrong side of history.

All this attention to property owners deflects from the real politics of land, expropriation and redistribution. The problem is not the state’s power to expropriate, but rather the power of citizens to hold the state to account — and force its hand to use its expropriatory powers to acquire land and redistribute it to those who need it most. The main risk with this bill is that after all these years in the making, once enacted the state won’t use it. As it has for the past 25 years, it may choose to allow landowners’ rights and interests to supersede those of the landless.

A further worry is how the government will allocate the expropriated land, and how transparent and democratic this process is. This concern is founded on its track record in recent years, when the initial pro-poor focus of land reform gave way to elites getting properties on cheap rentals, or even for free, from the state.

Another core issue ignored by the lobbyists is that those facing expropriation include not individuals but, more commonly, large communities. How will people with informal and customary rights in the former bantustans, on farms, in informal settlements and elsewhere, be treated? Surely special provisions should be adopted to secure the rights and interests of large and poor communities who are unable to respond to an expropriation threat in the same way that an individual owner might?

The answer is not to stand in the way of the bill. Rather, we can recognise that it’s a necessary condition for real and meaningful change but, by itself, it’s not enough. Rather than fighting the last battle, as the IRR is wont to do, we would all be better served by accepting expropriation as a necessary element in reversing inequalities.

I propose two specific measures to bolster the expropriation process, and make it democratic and responsive to the needs of society:

• A land redistribution bill to set out what the state must do to ensure every citizen can gain access to land on an equitable basis (as required in section 25(5) of the constitution). This would say what should trigger an expropriation and when the state should be compelled to act. This proposal was already set out in broad outlines by parliament’s high-level panel in 2017, chaired by former president Kgalema Motlanthe and endorsed by the presidential advisory panel on land reform & agriculture in 2019, chaired by the late Vuyo Mahlati. While expropriation is about state power, what is still needed is confirmation of people’s power to hold the state to account.
• A compensation policy should set out how the state will weigh up all relevant considerations to arrive at an offer of compensation that is just and equitable. It should interpret the constitution’s criteria for determining compensation and say when the state will seek to pay minimal or no compensation, or modest compensation, or market-related compensation, or a premium above this level. This is a law that is applicable to all South Africans, and a policy needs to clarify how different situations will be approached, in a fair, just and consistent manner.

The irony, of course, is that those opposing the expropriation bill are perpetuating the uncertainty they so decry. It’s high time a new expropriation bill is enacted to confirm the state’s powers that were negotiated in the 1990s — so that we can get on with the urgent task of ensuring that the state is pushed to use these powers. As a country we cannot afford another 25 years of inaction.

• Ruth Hall holds the DSI/NRF chair in poverty, land & agrarian studies at the University of the Western Cape’s Institute for Poverty, Land & Agrarian Studies. She was a member of the Presidential Advisory Panel on Land Reform.