Under the controversial recently assented Expropriation Act, the South African government actually has a higher burden to prove and justify why an expropriation is necessary owing to the Act being drafted in a hugely administrative and burdensome way.

This was according to Werksmans Attorneys director for land reform Bulelwa Mabasa, who stressed that the Act promoted just and equitable compensation, only providing for no compensation in very pointed circumstances and instances.

Last month, President Cyril Ramaphosa signed into law the Expropriation Bill, which sets out how the State can expropriate land in the public interest. The Bill has been met with criticism and concern, particularly the section that sets out expropriation with nil compensation.

Speaking exclusively with Polity, Mabasa noted that the argument that had been raised about expropriation without compensation was that the Constitution inextricably linked expropriation with compensation.

“So the argument there is that in South Africa, we don't have a system that allows for expropriation without compensation. Those instances that allow for expropriation without compensation are things like unused buildings, unused land where the landowner has abandoned the land, and also where the State holds property or assets, where, for example, the State doesn't require to hold such assets, and property in order to deliver on service delivery,” she explained.

She highlighted that the process to expropriate under the new Act was in fact extremely laborious and time consuming, making it more difficult for the State to expropriate.

“…it needs to first send a notice of intention of expropriation. It then needs to ensure that they have reports from many different government departments, from the Department of Land Reform, from the Department of Electricity, from the Department of Environment,” she explained.

Mabasa pointed out that there were many hoops that the State had to go through to justify an expropriation.

She explained that the State must also offer an amount of compensation, which a landowner or private owner had an opportunity to object to.

“…they have an opportunity to go through mediation. They have an opportunity to go to arbitration. And, ultimately, the courts, when there is no agreement, are the ones that are going to make a determination on the amount of compensation. So there is a section that may be controversial in the Act, if I'm not mistaken, that says that an expropriation can continue while all of these processes occur, and that the compensation may be paid afterwards,” she said.

DA COURT ACTION

Meanwhile, Mabasa pointed out that the Democratic Alliance’s (DA’s) court challenge against the Expropriation Act could have raised more substantive issues, saying she viewed it as a missed opportunity.

She said the DA could have raised issues such as compensation, provisions, and maybe even the burden that the Act placed on the finalisation of the amount of compensation.

Last week, the party filed court papers in the Western Cape High Court, challenging the constitutionality of the Act, calling for it to be nullified in its entirety.

Mabasa noted that the DA's challenge was mainly based on procedural issues.

“They have said that they weren't procedurally ready, that those provinces in the National Council of Provinces (NCOP) did not meet the necessary requirements of passing a law in the NCOP. Now those are very much procedural issues,” she said.

She highlighted that if there were any constitutional issues that had been raised, those needed to have been substantive issues rather than procedural issues.

“…but, of course, there is also the argument that procedural law is also necessary in order to reach a substantive conclusion on whether something is lawful or not,” she explained.

She said it was safe to say that the DA's challenge did not really go far enough in challenging the actual substance of the Act.