There will be no arbitrary seizures of property

Legislation: Minimum wage exemption regulations gazetted
21/12/2018
Legislation: Input sought on FICA compliance guidance papers
21/12/2018

There will be no arbitrary seizures of property

While substantive land reform must be undertaken, this must be done in a rule-governed manner and in ways that reinforce the transformational imperative so well expressed in section 25 of our Constitution. ‘Whatever Parliament decides in regard to a constitutional amendment (and we expect it to be a minor amendment), a complementary, general law of application to guide all expropriations will still be required,’ say Public Works Minister Thulas Nxesi and Deputy Minister Jeremy Cronin. In a commentary in Business Day, they say the objective of the draft Expropriation Bill (expected to be gazetted soon) is to ‘put down a marker, to provide a clear signal of the government’s intentions. After public comment, we expect to submit the Bill to the current Parliament, with the expectation that the sixth Parliament after 2019’s elections will revive it’. The authors argue that expropriation – with or without compensation – is part of what needs to be a major land reform programme. ‘The President, several Ministers, all provincial Premiers and all municipalities have expropriation powers in terms of various laws. The problem is that there is no overall statute providing general law of application to those with expropriation powers. What we have on the statute books is an outdated (and draconian) 1975 Expropriation Act, which is unconstitutional in several respects. In particular, it fails to provide guidance to expropriators, to those affected and to the courts on what constitutes an administratively just expropriation.’ Nxesi and Cronin point out that the Expropriation Bill is essentially the 2015 version – with a brief new section dealing with circumstances in which nil compensation may be just and equitable. ‘Both the 2015 Bill and the new version meticulously follow the spirit and letter of section 25. At the very outset, both Bills state that no expropriating authority may arbitrarily expropriate property. All steps in the process, including the question of what constitutes just and equitable compensation, are subject to judicial review.’ They add: ‘What has now been added is a brief section outlining circumstances in which it may be just and equitable for no compensation where land is expropriated in the public interest. Such circumstances include where the owner has abandoned the land; where the land is occupied or used by a labour tenant; where the land is owned by a state-owned corporation (subject to concurrence with the relevant executive authority); where the land is held for purely speculative purposes; and where the market value of the land is less than the current value of direct state investment or subsidy in the original acquisition or subsequent capital improvement of the land.’ The authors point out that even in these situations – in which it may well be an injustice to pay more than a nominal or indeed nil compensation – a case-by-case approach will still be required. ‘The constitutional requirement is for a just and equitable balance between the public interest and that of those affected.’

Full analysis in Business Day

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