South Africa’s new land bill to expropriate land without compensation

Land expropriation without compensation has been the fulcrum around which South Africa’s Economic Freedom Fighters drive its support. For years, its leader, Julius Malema, has been calling for the retrieval of lands from white farmers to black South Africans.

Land ownership in South Africa is an emotional issue. Thousands of families and tribes owned land outside the Reserves before 1948. After 1948, many landowners (individuals, tribal groups or people organized into partnerships) lost their lands as a result of the apartheid policy of forced removals which was aimed at removing the “black spots” from white areas.

Following the end of apartheid in 1994, South Africa’s ruling Africa National Congress (ANC) committed to redistributing at least 30 percent of white-owned lands to black South Africa. Since then, only 9.7 percent of white commercial farmlands have been transferred to black people, according to the Institute of Poverty, Land and Agrarian Studies (Plaas), based in Cape Town. Whites make up 9 percent of South Africa’s population and own around 73 percent of commercial agricultural lands.

In 2018, MPs in South Africa’s National Assembly took a landmark decision to review Section 25 of the Constitution of the Republic of South Africa in order to cater to the principle of land expropriation without compensation.

The National Assembly’s decision follows the ANC’s 2017 Conference where it indicated that it would start the process towards a constitutional amendment of Section 25 to make possible land redistribution without compensation, provided that it is sustainable and does not harm the agricultural sector or the economy.

The ANC government formed an Inter-Ministerial Committee (IMC) on Land Reform to look into the issue of land expropriation without compensation. On Sunday, October 11, the committee submitted the new land expropriation bill to parliament. The gazetted bill replaces the current Expropriation Act of 1975. The bill sets the rules by which the government can lay claim to land “in the public interest” and “for a public purpose.”

Speaking on the bill, Public Works and Infrastructure Minister Patricia de Lille said the bill will ensure that any act of expropriation was done according to law. “The Chief State Law Adviser has now certified the bill as constitutional. This paves the way for the next step in the process whereby the bill has been gazetted on Friday 9 October 2020, and submitted to Parliament,” said De Lille.

According to her, the bill brings certainty to South Africans and investors regarding how expropriation could be done and on what foundation. “The legislative certainty is critical as we rebuild our economy and invest in our communities,” she said.

Part of the bills states:

• “It may be just and equitable for nil compensation to be paid where land is expropriated in the public interest 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.
• 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 in that regard, and the organ of state acquired the land for no consideration.
• Notwithstanding registration of ownership in terms of the Deeds Registries Act, 1937 (Act No. 47 of 1937), where an owner has abandoned the land by failing to exercise control over it.
• Where the market value of the land 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; and when the nature or condition of the property poses a health, safety or physical risk to persons or other property.
• When a court or arbitrator determines the amount of compensation in terms of section 23 of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996), it may be just and equitable for nil compensation to be paid, having regard to all relevant circumstances.”

According to South Africa’s Deputy President, David Mabuza, the bill indicates the ANC’s commitment to fulfilling the aspirations of the people to have an equitable society.

“It is recognition of the urgency required to address the injustices of the past and restore land rights in a responsible manner, whilst ensuring that food security is maintained; that equitable spatial justice is achieved, and that continuation of investment to expand our industrial base is secured.”