LETTER: Mass taking of land may well lead to custodianship
The Expropriation Bill’s definition of expropriation itself is problematic
Ann Bernstein of the Centre for Development and Enterprise disputes the validity of the concerns the Institute of Race Relations has raised regarding the Expropriation Bill and the prospects of a custodial taking of land (“Custodianship of land is not on the table”, April 25). We welcome the engagement.
She is correct that the bill is not directly about custodianship, but our perspective on this is informed not just by the legal terms of this piece of legislation (though there is much that is problematic in the bill), but by the thrust of policy, politics and ideology.
The mass taking of land is an idea that keeps coming up, including in draft legislation and the pronouncements of senior politicians and civil servants. As I noted previously, this was put forward as the state’s intention to an audience at Davos in 2019. And it would dovetail with the outlook of a political party with a vision that is fundamentally statist.
The Expropriation Bill’s definition of expropriation, which by all appearances seeks to introduce the reasoning of the 2013 Agri SA judgment into law, suggests the mere deprivation of property will not qualify as expropriation; the state will need to take ownership to do so. When it takes property as “custodian” of the nation this will not constitute expropriation and no compensation need be paid.
This — combined with the constitutional amendment — would provide a legal backstop to head off challenges brought against a custodial seizure.
The issue, then, is less whether the Expropriation Bill will introduce custodianship, but whether it pushes that agenda forward. We believe it does. We believe custodianship is firmly on the table and that, given the nature and gravity of SA’s current malaise, it makes eminent sense to be alive to it.
Institute of Race Relations
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