With a 28 February deadline for the public to object to expropriation without compensation, we sat down with the DA’s member of Parliament who is currently championing this issue, Samantha Graham-Maré.
Samantha Graham-Maré (SGM): All governments are required to expropriate property for public purpose or in the public interest at some time or another. They might need to build houses or build a road and need the property for those purposes. We have, in the main, operated on the willing buyer-willing seller principle. However, there are reasons why government should not necessarily be required to pay market value for property it needs for the execution of its duties. In this instance, the government would then determine that no compensation be paid to the owner of the property.
There are several issues with the Expropriation Bill that have us concerned. Firstly, it refers to all property, not just land. This includes intangible property.
CM: What is your role in Parliament in tackling this issue?
SGM: The Expropriation Bill 23 of 2020 is set to repeal the Expropriation Act of 1975. This Bill aims to be the law of general application that would give effect to Section 25 of the Constitution which is the Property Clause. The Bill emanates from the Department of Public Works and Infrastructure. I serve in Parliament as the Shadow Minister of Public Works and Infrastructure and as such, I am responsible for promoting the DA’s position on the Bill, as well as ensuring that public participation is properly followed.
CM: Haven’t we already concluded the public participation process on expropriation without compensation?
SGM: There are currently two processes underway. There is the process around the 18th Constitutional Amendment which aims to amend Section 25 of the Constitution. The public participation part of this process has been concluded and the Ad Hoc Committee established to deal with this is busy with their deliberations. The Expropriation Bill process has just commenced. There is a period for written submissions which concludes on 28 February 2021. Following that, there will be a period of oral submissions to the Portfolio Committee. In early April, depending on the State of Disaster, we anticipate public hearings throughout the country, followed by further deliberations of the Portfolio Committee. So, in short, public participation is finished for the Section 25 Amendment, but is only just starting for the Expropriation Bill.
CM: What is wrong with the Expropriation Bill?
SGM: There are several issues with the Expropriation Bill that have us concerned. Firstly, it refers to all property, not just land. This includes intangible property.
We have an issue with the bases for expropriation without compensation and in particular, that this is not a finite list. The Bill allows for additional bases for expropriation without compensation to be used. There is a lack of clear direction on how certain aspects such as land that is not being utilized or where a person does not exercise control over their land which would leave it open to interpretation. This is extremely dangerous.
The definition of public interest is too broad and might also open up the floodgates of land expropriation on spurious grounds.
The role of courts is extremely limited and the access to the courts could actually only be after expropriation has already taken place. This provides no protection for private individuals against the state.
Finally, it is of concern that the government can refuse to allow its land to be expropriated but a private individual cannot.
There are other concerns, but these are the biggest ones.
CM: Would land invasions take place?
SGM: One of the criteria for expropriation of land without compensation is that the registered owner has lost control over that land. So, where a land invasion had taken place, that would constitute a loss of the exercise of control. It is our contention that this would incentivize land invasions.
The Expropriation Bill is about vesting land in the state and not about individual, private ownership of land.
CM: How do we achieve meaningful and just land reform if this isn’t the way?
SGM: It is important to bear in mind that the Expropriation Bill is not about land reform. It is about repealing the 1975 Expropriation Act which gives government the power to expropriate land for the use of the state. Whether or not that would translate into land reform would depend on the government, but it is not designed for that purpose. Furthermore, the Expropriation Bill is about vesting land in the state and not about individual, private ownership of land.
Land reform can only happen if there is political will, sufficient budget for the process and the intention to create property owners instead of state lessees. The focus should be on ensuring that people are given title to their property. Whether we provide title deeds for homeowners or for farmers, for land reform to be meaningful, it must result in ownership. Creating an environment for Zimbabwe style land grabs is not going to solve the problem. Nor is giving arable land to cadres who cannot farm it while depriving real farmers of the opportunity.
Land reform should also not just be quantitative. It is not about how much land or how many houses have formed part of the land reform initiative. What really matters is whether or not the homeowners have retained their homes and if the farmers are successfully farming their land. This is a better indication of meaningful land reform.
CM: What is the DA doing about it?
SGM: In the urban context, the DA is far ahead in the areas where we govern with the provision of title deeds. The comparisons are astounding. Each title deed gives that family dignity, ownership and the opportunity to begin building generational wealth.
In the rural context, in opposition, the DA has been at the forefront of fighting for the rights of emerging and Black farmers to own their land as with David Rakgase and now in the case of Ivan Cloete. In both instances, the ANC government has been the biggest obstacle for these farmers.
In government in the Western Cape, in the period of 2014 to 2019, the Western Cape government had a 72% success rate with land reform projects. Land reform rests with national government, but the DA-led Western Cape government has implemented mechanisms to support land reform beneficiaries to ensure that they become productive farmers and not just beneficiaries.
CM: How can the public participate in order to support the DA’s plan to stop this bill in its tracks?