On 20 February 2021, FMF made a submission to the Portfolio Committee on Public Works and Infrastructure on the Expropriation Bill, 2020 which can be read HERE
Executive summary
The Free Market Foundation played an important role in the creation and entrenchment of section 25 of the Constitution, the property rights provision, in the mid-1990s. We therefore consider it of paramount importance to continuously and diligently engage in defending the morality and integrity of this provision. Our submission on the Expropriation Bill, 2020, should be seen in this light.
If the Expropriation Bill is passed in its current form, South Africa will be in the unenviable position where the Constitution recognises and protects individuals' and communities' property rights, but the legislation through which constitutional provisions must find their practical application, does not. In fact, the legislation will be undermining such constitutional property rights.
The Bill, regrettably, is marketed and sold to the public in the garb of social justice and land reform, when in fact it is undermining the public's freedom. This creates the impression that rights are an idea owned by the State, and not the people. This would be faulty both according to human rights theory, but also according to the logic of the Constitution itself.
Section 1(c) of the Constitution provides for the co-equal supremacy of the Constitution and the Rule of Law. The Rule of Law among other things requires that law be clear, non-contradictory, and reasonable, and that provisions not be written in such a way as to give officials unbridled discretionary powers. Furthermore, the constitutional guarantee of property rights must be respected to ensure a prosperous and free society.
The Bill, among other things, is problematic for the following reasons:Three of the Bill's definitions – expropriating authority, public interest, and public purpose – are too vague and would entail absurd consequences, and thus fall foul of the Rule of Law imperative.
The Bill bizarrely gives executive government entities the right to refuse expropriation. This is contrary to the nature of expropriation, which is involuntary. Section 9(1) of the Constitution, which guarantees equal application of the law, would be undermined if different rules apply to ordinary South Africans than those that apply to government entities and officials. Expropriation should either be voluntary for everyone, or involuntary for everyone.
The provisions that provide for "partial expropriations" allow the Minister, if they are "satisfied" that the property is no longer viable after a portion thereof has been expropriated, to expropriate the remainder of the property. This is problematic because only the user or owner of the property is qualified to decide whether they still have use for the property in such circumstances. Giving the Minister such an unconstrained discretionary power is inappropriate to a Rule of Law-respecting society.
The controversial provisions that apply to expropriation without compensation should be changed to remove the ill-considered references to labour tenants and land speculation, among other things. Providing nil compensation for abandoned land and State-owned land is, however, a worthy feature of the law.
Finally, the Bill was not accompanied by a legally-mandated socio-economic impact assessment. For this reason alone, the Bill must be withdrawn and subjected to deep and intellectually-honest study.
The Free Market Foundation has recommended in this submission under heading 4 how Parliament could rectify these and other problems.
In general, however, the Bill seeks to make it too easy for government to engage in expropriation in general, and must be beefed up with additional safeguards for the rights and interests of citizens and others who own property in South Africa.