PROPERTY NEWS - We recently published an article in which the DA’s shadow minister of public works and infrastructure, Samantha Graham-Maré, criticises the proposed expropriation bill.
In the article she asks South Africans to sign the DA’s petition against the bill by 28 February, when the last submissions about the bill will be accepted by the Parliamentary Portfolio Committee on Public Works and Infrastructure.
In response to this article, Patricia de Lille, the Minister of Public Works and Infrastructure, submitted the following article, defending the bill, for publication.
We publish Minister De Lille’s response in full.
Like it or not, the 2020 Expropriation Bill remains true to our Constitution
By Patricia de Lille
In the advent of the digital age, the internet and its capacity for blazing speed and massive volume, misinformation and deliberate fear mongering, creating unnecessary panic and division, can be considered the greatest enemy of land restitution, redistribution and land tenure in our Rainbow Nation.
Since the Land Expropriation Bill was published in October 2020 and submitted to Parliament for further processing, material facts about the bill have been twisted and the truth has been distorted. The perpetuation of lies has become a consistent mechanism used by opponents of land reform.
Bill remains true to our Constition
Some of the opponents of land reform, such as the Democratic Alliance (obviously) and by extension the Institute of Race Relations (IRR) who has called for the rejection of the “draconian” bill, opining that it is unconstitutional and will strip millions of South Africans from their homes and other assets without fair procedures including the courts or equitable compensation.
The truth is the 2020 Expropriation Bill remains true to our Constitution. It was drafted by the Department of Public Works and Infrastructure (DPWI) after widespread consultation and with the assistance of senior attorneys and constitutional experts.
Our democracy is guided by the 1996 Constitution. The Bill is intended to replace the current and apartheid era law, the Expropriation Act of 1975 which has been inconsistent with the constitution in many respects.
The current bill proposes to bring the law into line with the rule of law, and above all, should pass constitutional muster. That is why the Chief State Law Adviser has certified that it is consistent with the constitution.
Any assertion that the 2020 bill is unconstitutional only serves to drive a narrow agenda to maintain the status quo where the majority of people of colour do not have adequate access to land.
Enemies of land reform who are tone deaf whiners want us to forget that for centuries people of colour have been denied the right to own property. Dating back to colonial times, the 1913 Native Land Act and the Group Areas Act displaced them through forced removals.
They were dumped in slums and their prime property taken away from them by successive apartheid and colonial governments.
To this day, the majority of South Africans live on the outskirts of our towns and cities, far away from economic opportunities and do not own any land, thanks to the apartheid regime’s draconian laws. These are the wrongs of our past that we have been working to remedy since the advent of South Africa’s democracy.
The constitution obliges the state to take “reasonable” legislative and other measures to enable citizens to gain access to land.
Recommendations by land panels
Lest we forget that the Presidential Advisory Panel Report concluded that the 1975 Act is “inconsistent with the Constitution” and that “the correction of this has been long-delayed.” The Panel pointed out that the 1975 Act “undermines the constitutionally enshrined principles of lawful, procedurally fair and reasonable administrative justice.”
Also, the Presidential High Level Panel on Agriculture & Land Reform, having considered the proposed Bill, recommended that the DPWI should fast-track the finalisation of the bill as one of the mechanisms to be used for land reform purposes in line with constitutional framework of the country.
Expropriation is only one of the methods that may be used for the acquisition of land that could be used for land reform purposes.
Section 25 of the constitution provides a solid and clear foundation for the implementation of the law and states that “property may be expropriated only in terms of law of general application for public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.”
Therefore the constitution is very clear on why property may be expropriated and that the compensation will be determined by agreement between parties and in the absence of an agreement, the land owner can approach the courts.
It does not prescribe that nil compensation will be paid in all circumstances. The Bill provides that the amount of compensation will, in the absence of agreement, be determined by the courts.
It is extremely dishonest to suggest that government will arbitrarily take people’s property such as their homes and that property owners have no say in the matter or no recourse available to them.
It makes no sense that a democratic government will revert to apartheid style practises of taking homes or business premises away from people. Surely, no court would agree to this either.
Peddling lies about no and nil compensation
The IRR’s Dr Anthea Jeffreys and her like-minded, tone deaf whiners and enemies of land reform also peddle the lies that the bill is unconstitutional because it proposes no and nil compensation.
At her age, I would like to know what Jeffreys did to oppose the 1975 Expropriation Act. There are many examples and I am sure that Dr Jeffreys must be aware of them.
The bill’s compensation provisions are anchored around section 25 of the Constitution which states that “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.”
Therefore the bill spells out clearly how and when expropriation can take place.
The bill and the constitution are clear: compensation for expropriation must be “just and equitable” having regard to all relevant circumstances. The Bill outlines circumstances when it may be just and equitable for nil compensation to be paid.
The IRR and other commentators pretend as if nil compensation is or will be a foregone conclusion in all expropriation cases. Nowhere does the bill or the constitution say this.
The independence and fairness of our judicial system has also been proven time and time again and I have always put my faith in the courts and so can any land or property owner.
When it comes to the issue of nil compensation, the bill prescribes clearly the conditions in which nil compensation may be considered. I encourage everyone to read the Bill.
Facts, truth and honesty
At the beginning, I deliberately mentioned the phrases 'facts and truths' because they are intimately related. Facts, truths, supplemented by honesty are socio-economic and political ecosystems.
Opponents of land reform must know that particular selection of facts may not change each fact but any selective omission of facts or deliberate misinformation create, not falsehoods, but contextual lies.
Everyone is entitled to their own opinion and there is a saying that is very apt for those who are deliberately creating facts and truths because of their perceptions and privileges: “Your opinion is your opinion, your perception is your perception, do not confuse them with facts and truths”.
So expropriation in a democracy will never be arbitrary, willy-nilly or deprive people from the right to own property as was done by some of the most devastating pieces of apartheid era legislation.
The Expropriation Bill brings certainty by clearly outlining how expropriation can be done and on what basis. What we all must acknowledge is that widespread land reform is long overdue and it is urgent.
Let us keep the debate alive on the 2020 Expropriation Bill, but let us do so responsibly. Let facts, truths, and honesty serve as mechanisms that keep harmony in our beloved Rainbow Nation.
Patricia de Lille is Minister of Public Works and Infrastructure.
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