By Minister in the Presidency for Planning, Performance, Monitoring, Evaluation and Administration, Jeff Radebe
The news that Cabinet has approved the tabling to Parliament of the Expropriation Bill 2014, has set off a flurry of discussion. This is a natural reaction in South Africa where the question of land still looms large in the hearts and minds of most people.
Our history shows that the majority were unfairly dispossessed of their land, livelihoods and dignity during the colonial and apartheid eras. The promulgation of the 1913 Land Act by the apartheid government further concretised this oppression. It saw the forced dispossession of land from the black majority; blacks people could no longer own land or property and severely restricted their movement.
The raw pain and anguish of this dark moment in our history is best captured by the now famous words of the well-known activist and freedom fighter Sol Plaatjie. Plaatjie said, “Awaking on Friday morning, June 20, 1913, the South African native found himself, not actually a slave, but a pariah in the land of his birth.”
Since 1994 successive administrations have grappled with the land issue and have sought to restore justice and dignity to the majority. It is fair to say that progress has been slow and in many cases even unsatisfactory. Twenty years after our democracy, this is simply not good enough.
Sadly, the tragic legacy of the 1913 dispossessions and those prior to that still loom large today. It has resulted in an unequal and skewed society with land, and by implication influence and economic power situated in the hands of a select few.
The Expropriation Bill must therefore be seen as but one tool to undo the ills of the past. It is by no means a panacea to all the social ills which are present in our country today. However, it is a strong starting point; a statement of intent of the need for change and redress.
The current Expropriation Act of 1975 predates the Constitution of 1996. It is therefore imperative to align the overarching legislation governing the expropriation of property to the values and provisions of the Constitution.
The redrafting of the Expropriation Act will ensure consistency with the spirit and provisions of the Constitution dealing especially with equality, property rights, access to information and lawful, reasonable and procedurally fair administrative decision-making.
The new Bill will consolidate current disparate pieces of legislation and processes of expropriation (about 150 of them) across all spheres of government.
It will align the Expropriation Act with the Constitution and provide a common framework to guide the processes and procedures for
expropriation of property by organs of state.
It allows for more clarity and will bring certainty around the question of land. It extends the purposes for which property may be expropriated from the narrow term of public purpose to include expropriations in the public interest.
In a developmental state like South Africa, we have to take special cognisance of the public interest. If passed, this Bill will allow government to act in the public interest and will provide a tool for government to achieve its commitment to land reform. It will further enhance our goal of bringing about equitable access for all South Africa’s natural resources.
Some might say that this harks back to the illegal dispossession of 1913. However, nothing could be further from the truth; those who were forcibly disposed of their land in 1913 had no say in the matter. They were not compensated, nor were they consulted. Their human rights were violated in the most horrific of ways and there was no recourse either in law or in the Constitution.
South Africa today very different from South Africa in 1913; the rule of law reigns supreme and government is bound to act within the Constitution at all times.
The Bill makes provision for all affected parties to be notified of a contemplated expropriation, to afford such parties an opportunity to raise objections and make representations to the expropriating authority, before a decision to expropriate is taken.
The expropriating authority must in turn give consideration to all submissions and attempt to reach agreement with persons whose rights and interests may be adversely affected before deciding to expropriate.
It allows for the payment of just and equitable compensation to persons affected by expropriations with such compensation reflecting an equitable balance between the public interest and the interests of those affected.
Tellingly, the market value of an expropriated property is a predominant factor in the Expropriation Act, which means that affected parties will be adequately compensated in cases where expropriation takes place. It also allows for expropriating authorities and affected persons to exchange technical reports and other relevant information, in endeavouring to reach agreement on compensation.
A deadlock mechanism has also been built in should the parties to an expropriation not reach an agreement on compensation. Either one of the parties may approach a court to decide or approve the amount of compensation, or the time or manner of payment of such compensation. It further allows that disputes emanating from expropriations to be dealt with by the Court having competent jurisdiction.
Government is confident that Parliament will pass the Bill into law later this year. It is a fair piece of legislation that takes into account the duties of state and provides for suitable compensation of all affected parties.
Twenty years into democracy we can no longer simply ignore the pressing issue of land. It is time for all of us to say let us join hands and resolve the problems of our past together. The legacy of apartheid has for too long defined our future, the time has come for this generation to stand up and move South Africa forward.