(Graphic: John McCann/M&G)
Regardless of the obvious public controversy, the idea of expropriation is neither new nor harmful. In reality, the authority to expropriate non-public property is important for a practical state, based mostly on the rule of legislation and constitutionalism, particularly the place the financial system is structured to protect non-public property.
With out this energy, it’s troublesome to see how the state can ship primary companies. The choice to the facility of expropriation is the abolition of personal property and its alternative with nationalisation.
It’s because, in its essence, the facility of expropriation, which vests completely on the state, is designed to allow the state to amass a selected property from a personal proprietor to fulfil a public operate.
Our expropriation legal guidelines are not any completely different. And have by no means been. The Union of South Africa and the apartheid regimes each had expropriation legal guidelines to allow the state to execute public works programmes.
The latter level is absolutely one among historical past. At this time’s critics of expropriation have tended to neglect their very own historical past wherein deprivation of property by means of expropriation created racial concentrations of property, which has produced the prevalent property racism that defines South Africa’s financial system.
If expropriation has at all times been a part of our social and financial construction, what’s the debate about then? Allow us to begin with the fundamentals.
The Expropriation Act of 2025 intends to repeal and exchange the 1975 Act of the identical designation. The 2025 Act differs from its predecessor in at the least two necessary respects, specifically that expropriation could also be undertaken within the public curiosity and for public functions.
The time period “public curiosity” is a constitutional time period, which is meant to incorporate the objective of land reform to redress the apartheid and colonial land patterns, which replicate marginalisations and land discrimination.
Within the second facet, the 2025 Act introduces a novel idea of compensation for the proprietor of property, not based mostly on “keen vendor, keen purchaser”, however on “justice and fairness”, phrases that are slippery and have by no means been able to exact authorized or financial definition, regardless of many makes an attempt at attaining precision.
Whereas exhorted by market fundamentalists, keen vendor, keen purchaser in expropriation contexts is one thing of a fiction or a fable. The act of expropriation, by definition, is about an unwilling vendor promoting to a single purchaser, specifically the state, not out of selection, however by means of authorized compulsion.
The identical might be stated of justice and fairness. But for a restorative Structure, resembling ours, the thought of property justice isn’t an summary or a theoretical one, however the concrete notion of redress for what was misplaced within the brutal and genocidal wars of colonial conquest.
Fairness can also be not self-explanatory. Within the property context, it’s truthful to see the time period as distinct from equality: the concept that all people who’s equally located ought to obtain the identical authorized therapy.
The time period of fairness is used to sign the deliberate intent to take away boundaries to equality and to actively take steps in direction of the empowerment of the deprived.
Which means a place to begin which accepts current inequalities and deliberately treats individuals situationally, after which takes corrective steps. In any other case “blindness to color” arguments merely entrench present inequalities.
So the addition of justice and fairness into the expropriation discourse is a extremely momentous one: it instructs the state to deal with property racism.
But extra clarification is warranted. What’s going to occur in follow?
Expropriation takes place in two phases. Stage one is the precise expropriation wherein the state notifies the proprietor of its intention to amass their property, the explanations subsequently, the quantity of compensation proposed and when the expropriation will happen. Such discover should invite the proprietor to remark.
An proprietor has the precise to object, together with the precise to strategy a courtroom for judicial evaluation of the choice to expropriate.
Crucially, such selections are additionally topic to judicial management below the executive justice provisions of our Structure and laws. On this sense, whereas the state has the facility to determine on the expropriation, it has no energy to determine its legality.
It is a operate of the supremacy of the rule of legislation: judges and never politicians have the ultimate say over the legality of administrative selections.
Stage two is the dedication of the quantity of compensation. The Structure requires settlement on the quantity of compensation between the proprietor and the state and failing settlement judicial dedication on specified gadgets: the quantity, the time and method of fee.
The Act permits compensation at under market worth, together with nil compensation, a topic which has triggered a lot controversy. Because the energy of the state below the Act is constrained to the mandate of the division of public works, the scope of this Act is definitely slender.
Part 3 states that the facility of the minister of public works and infrastructure to expropriate “applies to property which is linked to the availability and administration of the lodging, land and infrastructure wants of an organ of state, when it comes to the Minister’s mandate”. That mandate is the availability of lodging and different wants of the state.
Therefore this isn’t a normal land reform legislation, however a restricted legislation, to allow the state to amass property for its personal makes use of, as has at all times been the case. Situations of “nil compensation” will subsequently come up in negligible circumstances. The place they do come up, there will likely be fierce skilled financial and authorized contests as to their justifiability.
The set up of courts as remaining arbiters of the ultimate quantity — if any must be paid — itself implies that the Act can’t be described, to borrow from social historian and political activist EP Thompson as “a nasty legislation made by dangerous legislators”, even when it doesn’t but go for an excellent legislation.
Whether or not this Act will likely be an excellent legislation is determined by whether or not it’s interpreted with widespread sense and utilized with compassion.
There are some issues with the Act: vagueness and ambiguities in some phrases, obvious contradictions and circularity, which is a operate of the deep proceduralism emblematic within the Act. As an illustration, the Act says that both the proprietor or the state could strategy the courtroom within the occasion of a dispute regarding compensation.
The query, then what if nobody does? Does it imply that the expropriation stalls? The Act ought to have made a selection, in imposing the obligation on the state, always to strategy the courtroom to determine compensation if there isn’t any settlement.
And the Act incorporates at the least 17 discrete steps earlier than a remaining determination might be taken to expropriate property. And this excludes courts and their very own procedures, thus making the method of expropriation unduly cumbersome. There are various extra, and house constraints don’t allow for elaboration. The purpose is that these shortcomings within the Act don’t rise to the extent of unconstitutionality.
There’s a remaining word. This isn’t a legislation to resolve the disaster of land injustice. It doesn’t fake to be. Nor will this Act abolish non-public property rights. Claims alongside these traces are mischievous. For property rights holders, nothing harmful will come of it.
For the landless, their aspirations of an finish to property racism haven’t been fulfilled. Now one other factor should occur. One other legislation. One other spherical of controversy. But the march in direction of freedom stays.
Tembeka Ngcukaitobi is the creator of Land Issues: South Africa’s Failed Land Reforms and the Highway Forward.