In Legal Updates

Here’s what you need to know

Government has published an updated draft of its land expropriation bill ahead of its official introduction to parliament.

The bill is set to replace the current Expropriation Act of 1975, and spells out clearly how and when expropriation can take place in South Africa.

The Department of Public Works and Infrastructure drafted the Expropriation Bill following a lengthy consultation process that included receiving about 50,000 comments from South Africans. The Department also consulted business, labour and community stakeholders through the National Economic Development and Labour Council (Nedlac).

The bill is part of the work of government in ensuring that a comprehensive land redistribution for agricultural purpose, human settlements and industrial development is implemented, said deputy president David Mabuza.

“The publication of this important bill, is a cogent indication that government is indeed at work to realize redress and fulfil the aspirations of the people to have an equitable society,” said Mabuza. “It is a recognition of the urgency required to address the injustices of the past and restore land rights in a responsible manner, whilst ensuring that food security is maintained; that equitable spatial justice is achieved, and that continuation of investment to expand our industrial base is secured.”

In an attached explanatory statement, government said that expropriation without compensation is not a ‘silver bullet’, but only one acquisition mechanism that in appropriate cases will enable land reform and redress. Government said that the bill also brings certainty to South Africans and investors because it “clearly outlines” how expropriation can be done and on what basis. This legislative certainty is critical as the country rebuilds its economy and invests in communities.

When can land be expropriated? 

One of the key focuses of the bill are the circumstances when land may be expropriated without compensation. This includes:

  • Where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from an appreciation of its market value;
  • Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;
  • Where an owner has abandoned the land by failing to exercise control over it – notwithstanding registration of ownership in terms of the Deeds Registries Act;
  • Where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land;
  • When the nature or condition of the property poses a health, safety or physical risk to persons or other property.

When will compensation be paid? 

Public Works and Infrastructure minister Patricia De Lille said that the bill outlines circumstances when it may be just and equitable for nil compensation to be paid.

“However, it does not prescribe that nil compensation will be paid in these circumstances, she said. The bill provides that the amount of compensation will be determined by the courts.”

Section 25(3) of the Constitution determines that the amount of compensation and the time and manner of payment must be ‘just and equitable’. It should also reflect an ‘equitable balance between the public interest and the interests of those affected’, having regard to all relevant circumstances. The factors which will be considered include:

  • The current use of the property;
  • The history of the acquisition and use of the property;
  • The market value of the property;
  • The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; The purpose of the expropriation.

Courtesy: Estate Agency Affairs Board

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