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The Expropriation Bill and the 18th Constitutional Amendment process

- Elmien du Plessis, ZsaZsa Boggenpoel, Willemien du Plessis, Juanita Pienaar, Danie Brand, Jackie Dugard and Johan Lorenzen

The cart is still behind the horse

The statement that ‘before the Expropriation Bill can be passed, the Constitution needs to be amended, as expressed in a recent Daily Maverick Opinionista, is not correct. The processes running concurrently are typically confusing and are frequently confused. However, it is important to look at them separately.

Pam Saxby (*) wrote on the Constitution 18th Amendment Bill in Daily Maverick of 13 September 2021, asking if Parliament is putting the cart before the horse by trying to finalise the Expropriation Bill before finalising the Constitutional Amendment Process. We would like to engage with some of the questions raised in the opinion piece.

The main point that we would like to engage with is the statement that “before the Expropriation Bill can be passed, the Constitution needs to be amended”.

This is not correct.

The processes running concurrently are confusing and get confused often. Still, it is important to look at them separately as well.

Expropriation Bill

The history of this bill is relatively long and started long before the 18th Constitutional Amendment process. The first attempt at a new Expropriation Bill, aligned with the Constitution, was in 2008. That bill was shelved for fears of unconstitutionality, as it seemed to have excluded the courts’ role in the expropriation process.

The current bill is a changed version of the 2013 Bill, which became the 2015 bill after extensive deliberations. This bill was introduced in Parliament and adopted by the National Assembly (NA) and the National Council of Provinces (NCOP). It was then sent to the President for enactment, but due to a hurried process in the NCOP, it was vulnerable to legal challenges on procedural grounds.

This process was then halted because of the debate around expropriation without compensation. Notwithstanding, in December 2018, a Draft Expropriation Bill was gazetted for public comment, but the prospect of passing was slim because it was the end of the 5th Parliament. The 6th Parliament, therefore, had to revive the bill.

This draft bill was vital as it provided a clear signal in legal language of what the government had in mind for expropriation. It was also clear that whatever the outcome of the constitutional amendment process, expropriation legislation as a “law of general application” in line with the Constitution was still required. This further refinement of the bill always ran alongside the possible amendment to section 25.

The 2018 bill added mainly clause 12(3), which sets out the instances (but not restricted to the instances) where compensation may be nil. This makes it explicit that nil compensation can be paid in certain circumstances (such as abandoned land, land owned by state-owned corporations, etc. The bill can be found here). The constitutional compensation standard of “just and equitable” is still intact, and the discretion is still there to decide when it will be just and equitable to pay nil.

Mention is also made that the bill cannot be implemented without regulations. It is not clear why this is the case. The process is set out in the bill that gives certain people the authority to expropriate and sets out the requirements and consequences of a valid expropriation. This can be done without promulgating regulations.

18th Amendment Bill to the Constitution

Our Bill of Rights is written in “plain language”, consciously steering away from legalese and overly detailed formulations. This is to ensure that the Constitution is flexible and adaptable to endure. So, although Constitutions are generally not cast in stone, they are meant to endure for at least some time.

Constitutions are also “final” documents, in the sense that amending them (and especially the Bill of Rights) are long and complex processes. The current amendment to section 25 is no different and provides evidence of this. While we only will have finality on the process after the local government elections, all indications are that there will not be the required two-thirds majority to adopt the bill to amend the Constitution.

What we do have is the final proposed wording. For convenience, the proposed changes are cited below, with underlining of the additions.

25(2)(b): 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: Provided that where land and any improvements thereon are expropriated for purposes of land reform as contemplated in subsection (8), the amount of compensation may be nil.’’;

(b): by the substitution in subsection (3) for the words preceding paragraph (a) of the following words:

25(3) The amount of the compensation as contemplated in subsection (2)(b), and the time and manner of any payment, must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including—’’;

(3A)  For the furtherance of land reform, national legislation must, subject to subsections (2) and (3), set out circumstances where the amount of compensation is nil.’’;

(4A) The land is the common heritage of all citizens that the state must safeguard for future generations.

Section 25(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable state custodianship of certain land in order for citizens to gain access to land on an equitable basis.’’

What is important to note here is that the compensation standard remains “just and equitable”, and it clarifies that land expropriated for land reform purposes “may be nil”. This is then in line with the mandate of the Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of the Constitution’s mandate “to make explicit what is implicit” in the Constitution.

We agree that what is implicit is that the consequence of a valid expropriation is that an amount of compensation that is just and equitable under the circumstances is payable. However, in some cases, the circumstances may indicate that the just and equitable amount of compensation is R0 (or nil), just as, in other cases, it may be market value, below market value, or even above market value. This position — in other words, that compensation is always due for expropriation but may under appropriate circumstances be nil — is, in our view, the point of departure for the current interpretation of section 25 as well as the current 18th Amendment Bill. The Bill just states what is legally possible, in terms of section 25 as it currently stands, without any amendment.

As a point of departure, this position is notably different from “expropriation without compensation”, which in principle means that there is no obligation at all to compensate when property is expropriated. With “expropriation without compensation”, the expropriatee can in other words not question the payment of no compensation because there is no per se duty to compensate. In our view, this is not implicit in section 25 and would require a constitutional amendment. There is no mention of “expropriation without compensation”, in this sense, in either the 18th Amendment Bill or Expropriation Bill.

Legislation makes ‘explicit’, not a constitutional amendment

But it is not the job of a constitutional amendment to “make explicit” — that is the work of legislation. And questions can be asked if such an amendment indeed amends the law or merely clarifies it. Again, in our opinion, the Constitution is the framework, with legislation setting out the detail, giving flesh to the principles in the Constitution.

The only possible problem comes in with the addition of section 3A, that no longer leaves a discretion on whether compensation may be nil or not in a particular circumstance, but determines that legislation must set out where compensation “is” nil.  We commented (the submission can be found here) on this section stating that “just and equitable” is a contextual question, and “is” in the suggested formulation removes the discretion to determine in a particular case whether nil compensation is indeed “just and equitable”. Instead, the sentence should read, “the amount of compensation may be nil”.

This suggestion was not accepted by the committee, with the chair, honourable Motshekga, commenting that “[t]he Committee needed to bear in mind that members of the public were not all lawyers; they did not deal with such matters daily like the Committee Members. It was important that the Committee respected the public’s contribution, but where the Committee thought the contribution was based on a lack of understanding due to not being experts in the law”.

Can we please have a new Expropriation Act?

What will become of the Expropriation Bill if the Constitution 18th Amendment Bill isn’t passed? We argue that it can still go through the adoption process that Ms Saxby documents in her piece: to the National Assembly and the NCOP. Minister Patricia de Lille, in her presentation, also stated that the two are not “mutually exclusive”. This was also confirmed by the Office of the Chief State Law Adviser and by Parliament’s legal services.

That being said, we have the same concern about the false expectations that were often created in public utterances that the passing of either bill will expedite land reform. And this is where the real danger lies. Promulgating the legislation alone will not do it. There is a host of other processes that must be in place, of which the enactment of a proper Redistribution or Land Reform Act that authorises the expropriation of land for redistribution purposes should be high on the list.

But as for the Expropriation Bill: new expropriation legislation is long overdue, and the Expropriation Bill is a good piece of legislation (even if it is not perfect, see our submission here). The bill, once enacted, will give clarity to officials on how to do expropriation. That will remove the last excuse for the state not to use its expropriation powers where and if needed to acquire land for a public purpose or in the public interest.

We don’t need a constitutional amendment for that. We need the capacity. And we need the political will.

Professors Elmien du Plessis (North West University), ZsaZsa Boggenpoel (Stellenbosch University), Willemien du Plessis (NWU), Juanita Pienaar (SU), Danie Brand (University of the Free State) and Jackie Dugard (Wits University) are professors of law. Johan Lorenzen is with Richard Spoor Attorneys. This article was first published in Daily Maverick.

(*) Read Pam Saxby’s clarification on the title of the original article published in the Daily Maverick: Tip-toeing through the South African legal minefield of... (