ADVOCATE Tembeka Ngcukaitobi has become the latest critic of the Expropriation Bill but for different reasons, describing it as not going far enough, an instrument for government acquisition and not for for the landless.
Ngcukaitobi, author of The Land Is Ours: Black Lawyers and the Birth of Constitutionalism in South Africa, published in 2018, said the bill, recently passed by Parliament, differed from the apartheid-era Expropriation Act 1975, which was the responsibility of the then Minister of Agriculture.
”Yet here, in 2024, the function of expropriation is not located in the department with a mandate for land reform,” he explained.
The 1975 act, which Ngcukaitobi insisted had to be repealed, provided for expropriation of land and other property for public and certain other purposes.
Instead, the bill empowers Public Works and Infrastructure Minister Sihle Zikalala to expropriate property connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state.
”Basically, the minister can only expropriate if the state needs accommodation, land, and to develop infrastructure. Nothing else. The promise of expropriation for ‘land reform’ is rendered moot,” he wrote.
Ngcukaitobi added that Zikalala’s mandate is not land reform but also to manage the state’s land, accommodation and infrastructure, and that its mandate will not change.
”The consequence is that the bill can only be used to help the Department of Public Works to acquire buildings, roads and land for the state, not for the landless,” he said.
Ngcukaitobi added that the proposed statute, which now awaits President Cyril Ramaphosa’s signature, promises much but delivers little and is a betrayal of history in its problematic and constrained framing.
”The Expropriation Bill – which should have been passed 30 years ago – has been resurrected. Not to address the colonial and apartheid crisis of land injustice, it seems, but as political football,” the senior counsel wrote in the latest edition of the ANC Today, the governing party’s weekly newsletter.
According to Ngcukaitobi, an analysis into the bill’s structure shows that as an instrument of land reform, its impact will be negligible.
Ngcukaitobi explained that the bill adopts the standard definition of expropriation as being an instrument to empower the state to acquire property, without the consent of the owner.
He said the bill is not an engine for land reform and will not result in land being in the hands of poor people who need it but cannot afford it, and will not guarantee access and productive use of the land.
”But a new bill, which speaks to land, is what is needed. Regrettably, the Expropriation Bill is not the law we need for land reform,” Ngcukaitobi stated, adding that it is impossible to argue against the centrality of land redistribution for the country’s future.
The bill also makes provision for instances where it may be just and equitable for expropriation to be without (nil) compensation including 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 appreciation of its market value.
Other cases where there may be nil compensation are 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 and the organ of state acquired the land for no consideration.
No compensation will also be paid where an owner has abandoned the land by failing to exercise control over it despite being reasonably capable of doing so and where its market value 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.
A court or arbitrator will also be able to determine the amount of compensation in terms of the Land Reform (Labour Tenants) Act and that it may be just and equitable for none to be paid, according to the bill.
The Land Reform (Labour Tenants) Act states that an owner of affected land or any person whose rights are affected, is entitled to just and equitable compensation for the acquisition by the applicant of land or a right in land, but a court or arbitrator shall determine compensation if there is no agreement.
Some opposition parties have threatened legal action should Ramaphosa sign the bill into law, with the DA describing it as constitutionally flawed and an attempt to introduce expropriation without compensation through the legislative back-door after failure to amend section 25 of the Constitution in 2021.
The Freedom Front Plus has threatened to initiate a legal process to oppose the bill all the way to the Constitutional Court.
Trade union federation Cosatu said the bill will help end the days of land reform and a cash-strapped state being held at ransom by exorbitant compensation demand and remove the need to compensate unjust colonial and apartheid expropriations.