By: Jenni Evans
Date: January 26th 2016
Cape Town - A proposed new expropriation law is nearing completion, with MPs putting the final touches to a key element of the government's land reform programme.
The expropriation bill is in the final stages of a lengthy drafting process aimed at aligning expropriation with the Constitution and providing certainty for all affected parties, as it is used for land reform and reforms to bring equitable access to natural resources.
It sets out the painstaking steps, administrative procedures, and time frames on how property can be expropriated, and what to do if there is a dispute.
It provides for expropriation with compensation and states that no law may permit arbitrary deprivation of property.
It also makes the courts the final arbiter of any disputes.
It stipulates who is responsible for the maintenance of a property that is being expropriated until the expropriation goes through (the property owner is responsible until expropriation is finalised), among other points of clarity.
It gives local authorities, such as a municipal manager, a chance to submit an opinion on the effect that the expropriation will have on municipal planning and gives unregistered rights holders a say in the process.
The bill has support from the ANC MPs on the Public Works Committee, which is deliberating over it, but the EFF and the DA do not like it in its present form.
Compensation is a key element of the bill, which the EFF rejects in line with its own policies on expropriation without compensation.
At the other end of the spectrum, the DA, although not opposed to expropriation, has a problem with the vagueness of the word "property" in reference to property that can be expropriated.
According to the draft, property is defined in terms of Section 25 of the Constitution which deals with property rights.
This section states that property is not confined to land. It could be a person whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices. It allows restitution as a result of past discriminatory laws in the form of either property, or "equitable redress".
It states that no provision may impede the state from taking legislative and other measures to achieve land, water and related reform to address past racial discrimination.
"The definition of 'property' can be anything," said DA MP Anchen Dreyer on the sidelines of the meeting.
"It could be extended to the expropriation of intellectual property and shares, for example. It is not specified."
The opposition party had tried to have the definition changed to be more specific, but had failed.
Dreyer warned that the bill could be challenged in the Constitutional Court if it was passed as is.
The DA is also concerned that the process to determine compensation is vague.
The government has previously worked on the principle of "willing buyer, willing seller". The shift now is for compensation that is "just and equitable" and is a balance between public interest and the interest of the expropriated owner.
"It does not go far enough. It should be very clearly stipulated who determines the price and we want it to be strengthened up in that regard," said Dreyer.
The committee will meet again next week for further discussion and potentially lead up to a vote on whether the bill is accepted.
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