By a landslide of 202 votes, the controversial Expropriation Bill was passed by the National Assembly on 23 February 2016.

The Bill sets out the legislative requirements in terms of which the state will be able to expropriate privately owned property for public benefit. With this Bill the state seeks to give effect to section 25 of the Constitution of the Republic of South Africa, 1996, which empowers the state to expropriate land by offering “just and equitable” compensation to the affected owners.

Under this legislation, the state is able to acquire land without the owners’ consent by paying the owners an amount that is determined by the office of the Valuer-General, effectively doing away with the “willing buyer, willing seller” approach. The affected property owners are, however, able to challenge the compensation offered by the state through the courts.

The Bill aims to speed up land reform and thus provides for property to be expropriated only in the public interest and for a public purpose. It has been endorsed by its proponents as a measure to protect the state from having to pay exorbitant amounts of money to effect land restitution, while ensuring that expropriation is carried out in an administratively fair way, as required by the Constitution under section 33.

Many have criticised the Bill on the premise, among others, that the definition of “property” given in the Bill is too wide as it provides that “property is not limited to land”. The effect of this narrow definition is that the state could very well be justified in laying claim to absolutely any kind of property, whether immovable or movable property.

The Bill has been denounced by its opponents as a threat to agriculture as well as foreign and other economic investment as it creates an unjustifiable uncertainty about the security of their property rights.

Others however argue that the Bill was simply poorly drafted, citing the legislature’s failure to provide for how and when the compensation will be paid to affected property owners. This could have far reaching consequences in that there will be an urgency for them to make, for example alternative accommodation arrangements whilst not knowing when they will receive the compensation.

The Bill has now been sent to the National Council of Provinces for concurrence before the President can sign it into law.

Fundile Sangoni – Candidate Attorney