CHRISPIN PHIRI: Fearmongering over the Expropriation Act is unwarranted
The new law has the potential to contribute positively to urban renewal and economic stability
27 January 2025 - 13:08
byChrispin Phiri
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The recent response to President Cyril Ramaphosa assenting to the Expropriation Act has sparked significant debate, with critics suggesting it may lead to reckless land grabs and an erosion of property rights. Some have framed this as a land seizure law.
Critics argue that the act could enable the government to arbitrarily seize land without compensation, leading to uncertainty and instability in property ownership. They fear this could deter investment and harm the economy.
The act contains specific provisions and procedural requirements that prevent arbitrary expropriation. For instance, the act lists five conditions under which compensation may be nil, ensuring that expropriation is justified and not conducted recklessly. These conditions include:
Where the land is not being used, and the owner’s main purpose is not to develop the land or use it to generate income;
Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;
Where an owner has abandoned the land by failing to exercise control over it;
Where the market value of the land is equivalent to or less than the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land; and
When the nature or condition of the property poses a health, safety or physical risk to persons or other property.
These conditions ensure that expropriation is done in the public interest and not for arbitrary reasons.
Erosion of property rights
Critics also contend that the act erodes property rights, undermining the security of ownership, when it in fact reinforces the application of section 25 of the constitution, which protects property rights. The procedural requirements, such as publishing notices and verification processes, ensure transparency and accountability in expropriation.
Property rights are not undermined; rather, the act provides a framework for the state to address public interest issues, such as urban decay, just and equitable land reform, and safety hazards, which are difficult to manage under existing laws.
Another concern is the potential negative economic effect, with critics suggesting that expropriation without compensation could lead to decreased property values and reduced investor confidence.
The act aims to address specific situations where land is underutilised, abandoned or poses risks. By targeting such properties, it can contribute to urban renewal and improve public safety, potentially enhancing property values and investor confidence in the long run.
In addition, similar expropriation laws in other countries, like eminent domain in the US, have not led to widespread economic decline, demonstrating that, with proper implementation and safeguards, the act can be beneficial.
Far from being a reckless land grab the new law aims to address specific issues such as underutilised land, urban decay and public safety hazards.
Expropriation, or eminent domain, as it is known in other countries such as the US, is not a new concept. While the issue of compensation may be debatable, it remains a secondary argument.
If one receives an expropriation notice, it is necessary to respond to the expropriation authority within 20 days indicating the response. This is inconsistent with the notion of a land grab or land seizures.
Those who assert that the new Expropriation Act will enable land seizures or land grabs often do so without referring to the actual text of the legislation. This narrative may serve political interests but does not reflect the act’s intention or effect.
It is also quite evident that a just and equitable approach to land reform is required. There have been insistences where the state has had to pay high “market prices” as part of the land reform process.
It is worth noting that there is existing precedent in international law that the Constitutional Court obliges us to consider when interpreting legislation. The European court has found that expropriation without compensation is justified under exceptional cases. In the case of James & Others v the UK, the same court held legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Our Expropriation Act echoes the same ethos. The notion of no compensation for a legitimate government action is well settled.
In conclusion, far from being a reckless land grab the new law aims to address specific issues such as underutilised land, urban decay and public safety hazards. By reinforcing property rights and implementing safeguards, the act has the potential to contribute positively to urban renewal and economic stability. It is crucial to move beyond fearmongering and political narratives to understand the act’s true impact and benefits.
In any event, compensation for land reform processes is not a constitutional requirement. In fact, the Constitutional Court has made it clear that section 25 does not exist in a vacuum. In the matter of Agri SA v Minister of Minerals & Energy, former chief justice Mogoeng Mogoeng held that: “We must interpret section 25 with due regard to the gross inequality in relation to wealth and land distribution in this country.”
All things carefully considered, fearmongering over the Expropriation Act is unwarranted. SA belongs to all who live in it.
• Phiri is spokesperson for the minister of international relations & co-operation. He writes in his personal capacity.
Support our award-winning journalism. The Premium package (digital only) is R30 for the first month and thereafter you pay R129 p/m now ad-free for all subscribers.
CHRISPIN PHIRI: Fearmongering over the Expropriation Act is unwarranted
The new law has the potential to contribute positively to urban renewal and economic stability
The recent response to President Cyril Ramaphosa assenting to the Expropriation Act has sparked significant debate, with critics suggesting it may lead to reckless land grabs and an erosion of property rights. Some have framed this as a land seizure law.
Critics argue that the act could enable the government to arbitrarily seize land without compensation, leading to uncertainty and instability in property ownership. They fear this could deter investment and harm the economy.
The act contains specific provisions and procedural requirements that prevent arbitrary expropriation. For instance, the act lists five conditions under which compensation may be nil, ensuring that expropriation is justified and not conducted recklessly. These conditions include:
These conditions ensure that expropriation is done in the public interest and not for arbitrary reasons.
Erosion of property rights
Critics also contend that the act erodes property rights, undermining the security of ownership, when it in fact reinforces the application of section 25 of the constitution, which protects property rights. The procedural requirements, such as publishing notices and verification processes, ensure transparency and accountability in expropriation.
Property rights are not undermined; rather, the act provides a framework for the state to address public interest issues, such as urban decay, just and equitable land reform, and safety hazards, which are difficult to manage under existing laws.
Another concern is the potential negative economic effect, with critics suggesting that expropriation without compensation could lead to decreased property values and reduced investor confidence.
The act aims to address specific situations where land is underutilised, abandoned or poses risks. By targeting such properties, it can contribute to urban renewal and improve public safety, potentially enhancing property values and investor confidence in the long run.
In addition, similar expropriation laws in other countries, like eminent domain in the US, have not led to widespread economic decline, demonstrating that, with proper implementation and safeguards, the act can be beneficial.
Expropriation, or eminent domain, as it is known in other countries such as the US, is not a new concept. While the issue of compensation may be debatable, it remains a secondary argument.
If one receives an expropriation notice, it is necessary to respond to the expropriation authority within 20 days indicating the response. This is inconsistent with the notion of a land grab or land seizures.
Those who assert that the new Expropriation Act will enable land seizures or land grabs often do so without referring to the actual text of the legislation. This narrative may serve political interests but does not reflect the act’s intention or effect.
It is also quite evident that a just and equitable approach to land reform is required. There have been insistences where the state has had to pay high “market prices” as part of the land reform process.
It is worth noting that there is existing precedent in international law that the Constitutional Court obliges us to consider when interpreting legislation. The European court has found that expropriation without compensation is justified under exceptional cases. In the case of James & Others v the UK, the same court held legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. Our Expropriation Act echoes the same ethos. The notion of no compensation for a legitimate government action is well settled.
In conclusion, far from being a reckless land grab the new law aims to address specific issues such as underutilised land, urban decay and public safety hazards. By reinforcing property rights and implementing safeguards, the act has the potential to contribute positively to urban renewal and economic stability. It is crucial to move beyond fearmongering and political narratives to understand the act’s true impact and benefits.
In any event, compensation for land reform processes is not a constitutional requirement. In fact, the Constitutional Court has made it clear that section 25 does not exist in a vacuum. In the matter of Agri SA v Minister of Minerals & Energy, former chief justice Mogoeng Mogoeng held that: “We must interpret section 25 with due regard to the gross inequality in relation to wealth and land distribution in this country.”
All things carefully considered, fearmongering over the Expropriation Act is unwarranted. SA belongs to all who live in it.
• Phiri is spokesperson for the minister of international relations & co-operation. He writes in his personal capacity.
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