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Restitution of Land Rights Act reversed

Concourt says land bill “improperly” passed

…,sent to clients 25 August….  The Constitutional Court has upheld anconstitutional-court application that amendments to Restitution of Land Rights Act were improperly processed by Parliament.  The Bill was tabled by Land Reform Minister, Gugile Nkwinti.

Groupings opposed to the legislation successfully argued that the amending Bill went through Parliament without sufficient consultation with affected parties.

The proposal made by the Bill was that further claims may be lodged going back to the 1913 Natives Act but the Bill, about to become an Act, had been in any case “put on hold” for 24 months to allow for existing outstanding claims, some 8,000 of them in terms of previous legislation, to processed first.

Existing claimants brought that particular application against the Bill on the basis that those who lodged claims under the new amendment to the Act would be “jumping the queue” and their claims might or were being ignored. The re-opening of the restitution of land process was therefore greeted by a mixed re-action, a fact not expected by the ANC amongst the populace concerned.

More haste less speed

madlangaOnce again the particular habit now regular of the governing party of hammering legislation through Parliament at the last minute before recess has bounced back on the Cabinet and the Presidency.    Justice Mbuyiseli Madlanga said in his finding that the Constitutional Court could find “no cogent reason” for the apparent haste to sign the Bill into law.

He said that there had been a complete lacking in the required public consultative process by all nine provinces as the Bill went through the NCOP process of approval. He described Parliament’s behaviour with regard to the passage of the Bill as “improper”.

How it started

When the Bill was first tabled in a meeting of the National Assembly’s Rural Development and Land Reform Parliamentary Portfolio Committee, Minister Gugile Nkwinti confirmed that the whole process of land restitution for black persons dispossessed of their land was to be re-opened for a period of five years.

Under questioning,he confirmed that no constitutional changes were envisaged, despite the fact that the new Bill would mean an Act that backdated claims to 1913.    Critics of the Bill noted at the time that the tabling of such legislation was, as they put it, “politically motivated” in the light that it was being processed before national elections and with the then forthcoming provincial elections in mind just around the corner. The outcome of those elections would confirm the Minister’s fear and that of the Cabinet.

Critics also stated that there was insufficient time to process the Bill properly. ANC MPs chose to ignore this warning. Thw whole process has therefore been a waste of public funds.

In the kitty

Minister Nkwinti then announced that Cabinet had set aside R47bn for theGugile_Nkwinti envisaged exercise over a period of five years. Opposition members were again alarmed, stating the country had neither the resources nor court time to process such a plan and, in any case, the Department of Rural Development and Land Reform was already facing an uphill struggle to process and finalise the existing claims it had on their books. Opposition members also called for sight of Treasury approval.

During the course of the Minister’s departmental presentation on strategy leading to the budget vote a week later in Parliament, when confronted by opposition MPs asking for a direct answer as to whether he would call for constitutional change on property rights or not, he replied that there was “no such question arising.”

The whole truth

Since that time the tandem Expropriation Bill has also been returned to Parliament unsigned and similarly passed in haste before a recess but, in this case, in the light of a possible adverse opinion by the Constitutional Court.

Minister Nkwinti chose to issue a statement on the the passage of the Expropriation Bill upon its being voted through the National Assembly although not in the domain of his Ministry.

cronin2This statement completely contradicted the declared motivations of Deputy Minister of Public Works, Jeremy Cronin, who had steered that Bill through Parliament declaring his legislation to be necessary for public works to execute infrastructure projects.

Nkwinti’s statement  claimed  that the Expropriation Bill “would bring about the possibility of at last of speeding-up land restitution and reform” thus laying the groundwork of his new land Rights Bill and contradicting the assurances of Cronin.

The numbers game

In his original briefing on the tandem Restitution of Land Rights Bill, Minister Nkwinti stated at the time that since its inception, the state’s restitution programme had benefited some “370,000 households”.    Normally one refers to “claimants” but it was his way of getting to his point using self-serving mathematics.

This meant, he said, that some “1.83m persons had benefited so far from theland-reform process, as against an estimated 3.5m people who had been forcibly removed from their land as a result of colonialisation and racial and discriminatory laws”.

A new closing deadline for lodgement of land claims was set by the Act as mid-2019 and a booklet on how to lodge a claim published.  Mobile lodgement offices were to visit all areas, the department told subsequently told MPs, and the lodgement process required no fees.

Tough words

Whilst the Constitutional Court has now re-affirmed that the right to restitution “could not be overstated” and that “restitution of land rights equals restoration of dignity”, Justice Madlanga was not prepared to overlook the fact that the time line of the parliamentary process had been manipulated.

“As an example, the process of public participation in the Northern areas was reduced to a shambles by haste”, he said, “and as a result of the truncated process of the NCOP, the whole parliamentary procedure had been tainted”. The NCOP was found to have “not applied its mind to the task.”

Give it time

Pending re-enactment of the Act, the Commission on Restitution on Landland-claims-court Rights may continue to receive claims and acknowledge receipt but only process them once existing outstanding claims that had a closing deadline of 1998 are finalised. After 24 months, further consideration can be made on the possible re-enactment of the legislation.

In conclusion, Opposition parties fear that the new Act will allow traditional chiefs with the additional powers granted in terms of legislation favoured by President Zuma to supersede rights on land already granted to communities.

One way only

Disquiet was also expressed by some MPs with the land acquisition claim alternatives as financial compensation was mainly the choice for claimants.

Some MPs expressed the view that they were “uncomfortable” with a monetary solution as a solution to dispossession since this almost amounted to a bribe.

DA MP Thomas Walters said in his view the reason for the slow rate of land occupation was not, as the ANC claimed, the result of whether or not there was a solution on the willing-buyer, willing-seller principle but rather a reflection of the fact that 92% of land claimants preferred to take cash pay-outs instead of working the land and creating jobs.

Minister Nkwinti strongly denied this as did the Department of Rural Development and Land Reform.

Previous articles on category subject
New approach to land reform – ParlyReportSA
Land reform: Something very sad is going on – ParlyReportSA
Minister says need for legislation on land reform a priority
Agri-SA gives views on minimum wage – ParlyReportSA

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Expropriation Bill grinds on

Expropriation: “public interest” and “property”

3- day précis…sent to clients 2 Nov….. Parties are coming closer during debate in the Portfolio cronin3Committee on Public Works to a slightly watered down Expropriation Bill, with Deputy Minister of Public Works, Jeremy Cronin, leading for the Minister who tabled the Bill before Parliament.

The name of the Bill has not resonated well amongst the international business community in the light of other events in Southern Africa.

Nevertheless, Minister Cronin has stated that eventually such a Bill will succeed, despite the concerns of many parties and that the proposed Bill has no malevolent purpose other than assisting “in the public interest”.

The public interest?

Therein lies the problem in that it remains a state responsibility to decide what the public’s interest is and which “public” is the subject matter of any decision for invoking the legislation.   As is the case with so much legislation at the moment, it is therefore a question of the wording of the Minister’s powers and the definitions of the tools at his or her disposal which is of debate.

Most of the debate earlier had centered around the definition of “property to be expropriated” in the light of the fact that the Bill cannot exceed the powers of the Constitution, wherein the word “property” is also not expanded upon – a number of court precedents arising previously where no final determination was made on the subject.

Calling in the Constitution

At one stage, the Deputy Minister proposed that “property” could be defined as “contemplated in section 25 of the Constitution”, the Deputy Minister considering this a major concession by the Department.  However, Opposition members still claimed that the word “property” could not be used in any piece of legislation without a definition of the term “property” also being listed and also in the knowledge that such terminology could not be contextualized even in terms of the Constitution.

On what could be expropriated, the Deputy Minister presented another alternative wording stating the that “the Minister’s power to expropriate property applies to property which is connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state, in terms of his or her mandate”.

This was not found to be satisfactory either by the Committee since the term “that does not fall within his mandate” was vague and could be determined in any number of ways and open to any kind of interpretation.

The Deputy Minister was advised by senior counsel the way the Constitutional Court defined property land seizureremained “ a moving target”, especially section 25, and also in the Bill of Rights and this matter needed to be looked at again.

New draft for discussion

The Deputy Minister is to return to the next meeting with a further proposal on the definition of property issue which would possibly be part of a “B” version of the Bill, then to be reconsidered in totality by the committee. Such will be ready in a few days.

Another alteration of major importance so far is that a new wording using the expression “disputing party” has used in some cases instead of “claimant”. This is now used to describe “claimants” where they no longer are such in the process of expropriation, particularly in not accepting the amount of compensation offered. This is important, as thus the Bill and the parties will accept that indeed a dispute has occurred.

Two months in debate

At this stage the Bill has had three full days of “clause by clause” debate with more to come, draft clauses flying backwards and forwards, the final to be proposed by the Minister as agreed to and under the guidance of the State Law Advisor representing the State’s last offer of compromise and agreement to change wording and those changes as so far agreed to by the Committee.

Minister Cronin still maintains infrastructure projects are being held up, having to be changed or stopped. He had earlier called upon Eskom to give evidence of this.

There is general agreement that Deputy Minister Jeremy Cronin has bent over backwards with subsequent alterations to meet demands but there still exists amongst Opposition a feeling that ulterior motives exist for the legislation and the legislation is not simply “to assist Eskom buy land for electricity development”, as Minister Cronin first declared.  In the background is the threat of a constitutional challenge but this has dissipated somewhat.

The “E” word

pylonsMuch of the debate has also centered around the issues of “municipal planning” and “powers of municipal mangers” giving credence to Minister Cronin’s views. He has said the word “expropriation” is a loaded expression at this time in Africa’s history and has an unfortunate influence on the necessity for the Bill to proceed.

There is also change, seen by Opposition members as an improvement, which deals with the mediation process which previously allowed the expropriating authority to use the absence of a timeous response to bypass the process of mediation. This is not now the case, the issue of mediation being allowed to proceed under any circumstances should this be required.

Progress

More debate is to follow in subsequent days but a final document will no doubt be voted on by the committee shortly before going to the National Assembly, probably in this session of Parliament. In a meeting subsequently, a “B” version of the Bill was introduced and Chapter 4 on Intentions to Expropriate and Expropriation of Property was completed to the satisfaction of most, leaving the impression that much of the steam about the Bill in general had been reduced.

The issue of the definition of “property”, however, still remains a contentious issue simply because of legal determinations.  On 21 October, to expropriate where there was a mortgage bond was debated at length and satisfaction reached and that notice to the expropriated party and any farm workers or dwellers must be simultaneous before the issue of “just and equitable compensation” is considered.

More serious issues

On 27 October the major issue of debate involved the term of “just and equitable” compensation in the Constitution and how this would be applied to the expropriation process in the Bill.

Also debated was the question of a large community being expropriated and whether water availability, dwelling provision and the needs of a community restored. The Minister explained that the Expropriation Bill per se was about expropriation and the process and not about land reform and for this process there was plenty of legislation already to hand and new legislation planned.

The following week of November, however, should see this matter resolved mid-month providing hecronin current NEHAWU strike action of disturbing meetings does not continue, but whether all will be to the satisfaction of each party has become somewhat academic, it becoming more and more evident that Deputy Minister Cronin, who has handled each stage of the process personally, seems determined, in his patient and determined way, to see this Bill through with the property clause undefined.

Last minute attack

The EFF attempted to delete the whole of chapter 5 on compensation in the Bill as they maintained that the subject matter was expropriation, not compensation at all but such a suggestion was put aside by the chairperson Ben Martins as a political ploy rather than a serious contribution.

Other articles in this category or as background
Expropriation Bill phrases could be re-drafted – ParlyReportSA
Expropriation Bill has now to be faced – ParlyReportSA
Zuma goes for traditional support with expropriation – ParlyReportSA
Expropriation of land stays constitutional – ParlyReportSA
Amended Expropriation Bill returns – ParlyReportSA

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Expropriation Bill phrases could be re-drafted

Most countries have forms of expropriation…..

As a result of three full days of public hearings on the new Expropriation Bill,  Deputy Minister of croninPublic Works, Jeremy Cronin, confirmed that in a number of aspects, notably on issues of arbitration and definitions of “the public interest”, the Bill as tabled needed re-drafting considering certain constitutional aspects.

He was adamant that a Bill of this nature was needed, a fact not disputed by many in submissions, but the wording of the Bill at present certainly seems to have raised the spectre of a constitutional challenge if the hearings were anything to go by unless considerable alterations take place.

Expropriation definition will trump all

Whether the Expropriation Bill is land reform in disguise or a genuine attempt by the Ministry of Public Works to unlock mechanisms that are preventing infrastructure development became the kernel of discussion and debate. This was after some twenty five submissions by various parties across the entire business, political analyst and land ownership spectrum.

Clearly opinion is still divided but the motives for dissension and the subject of the submissions put to the Portfolio Committee on Public Works were as varied as the arguments put forward by the department itself in the need for such a Bill.

Eskom used as reason

The worry behind any disagreements with the wording of the new Bill appeared in question time. Would the Department of Public Works (DAPW) seriously put forward an ANC Alliance proposal for “land grabbing” under the simple guise of a platform of argument such as that Eskom needed to resolve land issues to extend electricity grid installations or that the N2 was held up in the Eastern Cape?

Anything else in the “public interest” including “property”, as yet undefined, would be unconstitutional, said many of the submissions, whether agreeing to the basic need to alter the anchor Act by amendment or not because the ‘willing buyer, willing seller” principle was clearly “out of the window”.

How close is Constitution on “expropriation”

Minister Cronin The Bill tabled clearly states that it “seeks to align the Expropriation Act, 1975, with the Constitution and to provide a common framework to guide the processes and procedures for expropriation of property by organs of state.”    This, the Bill says, would be in the “public interest” but again and again the query arose as to what the “public interest” might be.

Throughout the entire round of submissions, the Deputy Minister of Public Works, Jeremy Cronin, was at pains to express the benign in nature of the proposed Bill insofar as plans to expropriate land. The intention of the Bill was merely to speed up processes that hindered development in the “public interest”, he argued.

He admitted that in some cases this might include “land development” but denied that the Bill was in fact a pre-cursor to the proposed Land Reform Bill and the recently tabled Promotion and Protection of Investment Bill, where the issue of land in the one case and “property” in the other case arose.

CCCI attacks whole raft of Bills

ccci logoSuspicions in respect of this were strongly expressed by Ms Janine Myburgh of the Cape Chamber of Commerce (CCCI) who claimed to represent also the views of SA Chamber of Commerce, in completely rejecting the Bill as a flagrant attempt to undermine the Constitution.   She thus brought CCCI to a great degree into contradiction with Business Unity SA (BUSA) and even Agric-SA, both of whom agreed that such a Bill was in order but that the wording need much attention on the issues under debate.

In some respects the CCCI presentation, as lodged with Parliament and subsequently circulated, differed in basic content from the speech actually made, which was particularly vehement in its rejection of the Bill and which, Ms Myburgh said, flew in the face of the Constitution. She linked the Expropriation Bill with the Promotion and Protection of Investment and other land reform legislation from the Minister of Rural and Land Development together.

Coming round the corners is more…

CCCI was convinced that the Expropriation Bill was the first of more legislation to come that could damage any investment in the South African economy; was an attempt to provide precedent for expropriation at “any price”; and should be the subject of a constitutional challenge. The need for the Bill in totality was rejected.

The chairperson, Ben Martins, complained that the CCCI submission brought “nothing to the party” with no alternative suggestions, “nor an attempt to understand the processes involved”. They should only discuss the Bill before them. The UDM stated that they doubted whether Ms Myburgh, an attorney, “had even read the Bill” and Minister Cronin, said that the input by CCCI was an embarrassment and a waste of the committee’s time. There would be a Bill tabled eventually, that was a fact that seemed to be accepted, but to contribute nothing was a pointless exercise, he said.

He expressed his view that Ms Myburgh should not even be allowed to respond to these different criticisms since her organisation either had not read or did not understand the Bill. He asked how the Bill could be “unconstitutional” when it directly enforced the “public interest”. What was being discussed, he said, was to define this with wordings necessary to resolve issues, achieve this, and move forward.

Minister Cronin said that CCCI had adopted an alarmist attitude, which he was continually at pains to oppose, and added that a wide majority of stakeholders who had intervened in the public hearing thus far, including Business Unity South Africa (BUSA), Agriculture South Africa (Agri-SA) and the Banking Association South Africa (BASA) amongst others, had raised useful contributions which had to be considered.

Minister Cronin said that he hoped that the media present would have the intelligence to understand the processes envisaged by the amended Bill and the suggestions that had so far come forward were part of a process that all countries had.  He condemned the attitude of CCCI towards an Act that had been in place but needed revision because of circumstances.

Institute of Race Relations

anthea jeffriesRight from the start of hearings, the first being from the South African Institute of Race Relations (SAIRR) represented by Dr Anthea Jeffrey, the point was that in the case of poorer folk the whole question of court litigation costs was not only a dubious issue but the time frame for lodging an appeal had to be extended from 60 to 120 days.

When asked why SAIRR should become involved in land issues, Dr Jeffrey replied that it was just a question of the unconstitutionality of the issues and for many years SAIRR had been involved in discrimination against black land ownership.

She said that under the present Act the validity of any expropriation could be challenged, whereas under the new proposals it could not; SAIRR was deeply concerned that all types of property could be expropriated; property that was expropriated “in the public interest” should be better defined and she asked that the new Bill should trump all other Bills.

She complained that Bill in no way assumed responsibility for loss of livelihood; loss of property and the unintended consequences of taking land. She reminded MPs that over 8.6m black people owned their own homes in South Africa.

Dr Jeffrey was asked what she meant by making the remark that “a number of interested organisations would be taking the current wording to the Constitutional Court if the wording should stand”. Would SAIRR really appoint silk and go to the Court, they asked.  She replied succinctly, “It totally depends what you put in the Bill”.

Earlier, Ms Vuyokazi Ngcobozi, Parliamentary Legal Advisor, reminded the Portfolio Committee that it needed to be mindful of Section 25(2b) of the Constitution which states that if parties did not agree on compensation, they should approach a court.

People could not afford to take the route of going to court, she said, and arbitration was expensive. However, this was a right which is provided for in the Constitution. Alternative approaches had to be considered, she said. There was, throughout the hearings, much debate on which courts should be used.

Eskom goes up front as reason

eskom logoEskom in its presentation said that it was currently experiencing significant delays in acquiring servitudes for the construction and installation of its infrastructure and this was largely due to an “ineffective expropriation process”. They quoted one essential transmission line to the Western Cape which had been held up for six years and one even more critical line to the Vaal Triangle industrial area held up for four years.

When asked why the land had to be bought, Eskom said in many cases this was the only route to acquire rights. At this point, the Deputy Minister responded that there was absolutely nothing against the acquisition of servitudes in the public interest but the issue remained the market value for such rights, whether ownership or servitudes, and the Bill itself therefore remained a Bill about expropriation of such rights.

SA Institute of Valuers

This point was made by Saul du Toit of the SA Institute of Valuers (SAIV) in urging both the committee and the department not to leave the notion of value as openly definable and to align it with market value for purposes of fairness and constitutionality and the rights of a property owner.

He found himself answering provocative questions from EFF members who stated the land was not the property of the current owners in the first case so the question of rights did not apply.

Mr du Toit urged members of the EFF to obtain a copy of “Grundrisse” by Karl Marx, in which Marx explained how “labour” actually allocates a certain value to land.  He again confirmed that it was highly doubtful whether some magistrate’s courts, which had to take a fair share of the load of expropriation cases away from costly High Court actions, had the experience but not necessarily the competence, to deal with expropriation matters.

One submission, from a valuator, Mr Peter Meakin, suggested that that all land, as in Hong Kong, should become state land and leased back to owners, thus completely changing the structure of taxes and rates into rent and leasing costs, making expropriation a much easier matter, providing just compensation for property only as the main issue. The impracticality of this suggestion led to very little debate.

Agric-SA- “process must totally protect”

agri-saMs Annelise Crosby, parliamentary representative for Agri-SA, said they “supported orderly land as a prerequisite for rural stability and inclusive rural development.” She stated that “expropriation should only be used as a last resort where negotiations had failed”.

Agri-SA had been totally opposed to the original 2008 Bill on the basis that it restricted access to the courts and was not in line with Section 25, 33 and 165 of the Constitution and she said that government “should be applauded for the extensive and inclusive consultation process which it undertook on the 2015 Bill before the showed significant improvements”.

However, expropriation without compensation, she said was traumatic, causing financial loss, emotional stress and suffering.  Agri-SA proposed that the full 100% of compensation offered be paid to the owner on the date which the state took responsibility of the property. Under no circumstances should an expropriation lead to insolvency on the part of the land owner because the compensation was not sufficient to settle the loan secured by the mortgage bond and settlement paid in time.

Claimants, she said, should as far as possible be placed in the same position as was the case before the expropriation. The definitions of “expropriating authority” and “public interest” were broad and left a lot of room for uncertainty.

Also Ms Crosby said, “due regard must be given to the owner’s right to privacy and these should therefore be resolved in the wording, submitted by Agric-SA, before the Bill was finalised if it was to be acceptable.”

Banking Assoc: Expropriation should only be for land

basaThe Banking Association of SA (BASA) went a stage further, stating the whole preamble to the Bill and the Constitution should be altered to state that the Bill be restricted to land, water and related reform as opposed to “other types of property”.

BASA noted since the instigation of the original Act the word “property” had become a debatable issue at law. This was agreed later by Minister Cronin and not even the Constitutional Court had been able to rule on this.  BASA pointed out that the Bill had to be aligned to the Constitution which called for “just and equitable” access to land which was missing in the proposed Bill, thus there being no adequate safeguard against abuse of the power to expropriate.

BASA stated that the new Bill left out the previous expression of “consequential loss” contained in the original Act and any replacement or amendment should be aligned to relevant international norms and standards. In terms of global regulatory requirements, they said, lenders are required to make use of market values against which mortgage loans are made and they could see “no valid reason” for leaving out the relevant clauses as contained in the original Act.

“Expropriation is a drastic measure which places an inordinately heavy burden on the shoulders of particular individuals. The full extent of their consequential loss must be taken into account, not disregarded”, BASA emphasised. They disagreed with the concept that any property that had been “taken without the consent of the expropriated entity or person” should not be taken into account.

BASA set out a full alternative set of wordings and concluded by urging government use caution and act in strict compliance with the Constitution, especially in cases when a heavy burden on the expropriated person became apparent. They concluded with the comment that South Africa could ill afford to have an Expropriation Bill that works against investment growth and the creation of jobs. This was not conducive to a satisfactory international business environment, they said.

Taking bits out of land destroys values

The South African Institute of Valuers (SAIV) further said that land assets should be considered as holistic units and should not be divided up by any expropriation process since the units thus divided, they argued, become non-viable and lost their use or value. The expropriation process, they argued, had to be related to market value for purposes of fairness and constitutionality.

Discussion again centered on what courts should be used, SAIV sharing its experience with the Gautrain expropriation where some 1,400 cases of expropriation were satisfactorily concluded by arbitration before the necessity of going to the courts arose.

SAIV called for privacy on compensation agreements, for if the amounts paid, the Institute said, were to become public, landowners could rely on data from previous cases and play these off against each other as well as against the state.

Minister Cronin’s consistent assurances throughout the hearings that the amended Bill was benign on the issue of expropriation and mainly for state utilities to complete infrastructure projects was challenged after a submission on the third day by Prof. Ruth Hall for Institute for Poverty, Land and Agrarian Studies (PLAAS)

She said the amending Expropriation Bill highlighted “the necessity to bring expropriation laws and theirRuth hall compensation components into line with the Constitution in order to remove the ‘veto power’ of landowners in relation to land reform and to ensure consistency in expropriations undertaken by the different arms of government.”

Prof. Hall said that the proposals, for the first time, properly phrased historical factors into a Bill, particularly regarding the shaping of compensation in order to address the apartheid legacy and the necessity for redress. She said a state “advisory panel on expropriation” could provide all citizens with a cost free framework for negotiations and arbitration in order to address the costly and “intimidating” court system.

Minister Cronin hastened to assure Prof. Hall that this legislation, like much of South Africa’s current legislation, had the main purpose of addressing improprieties of the past and was designed to continue the process of redress.

sapoaThe South African Property Owners Association (SAPOA), represented by Adv. Gerrit Grobler, felt that in broad terms the Bill conformed to international standards and the department was to be commended. “It is workable, practical and constitutionally sound but there were a few outstanding matters needed to be attended to and that the Bill could not go forward as it was.”

Originally only the High Court where the property was situated could determine compensation for all instances of expropriation, Adv. Grobler said, but in 1975 the Expropriation Act provisions allowed for compensation to be decided by a magistrate but subsequently were deleted from the Act because compensation mostly fell outside the experience of magistrates.  This had to be cleared up and decided upon, he said.

He advised that the 60 day notice of expropriation was too short and felt it would not meet constitutional muster.   It could not be expected that property could be valued and a claim for compensation prepared in such short time. He suggested 6 months in the light of court rolls being overloaded.

Mr M Ndlozi (EFF) said that SAPOA represented land and property of capitalists, some of whom were the main beneficiaries of the policies of a criminal government. SAPOA needed to have a conversation around the criminal acquisition of land, he said.

Adv. Grobler, when replying, said if a property owner who had paid full value for the property, whether in 1960 or 1975 and the property is taken away, then the owner would lose the market value which he or she had paid for the property. That was a fact. If the land was acquired for nothing, then this would be taken into consideration.

gerrit groblerAdv Grobler said he was not a politician but a lawyer and therefore could not discuss any member’s personal ideologies. He followed only the Constitution which outlined the principle that compensation for expropriation be paid.

However, SAPOA continued with the proposition that High Courts, or preferably arbitration beforehand, had to take place first in terms of the Constitution but the argument remained, as had been stated from the start of the hearings, that these costs were too high and the period in which a defence could be prepared before expropriation took place was too short. This had to be reconciled, he said.

Adv Grobler again repeated that the Bill was a good piece of legislation which needed a few technical adjustments. Magistrate courts were specifically good in matters relating to criminal law but not to expropriation. However, he stressed that the proposals would “not serve the bottom end of the market”.

Deputy Minister Cronin thanked the presenters for providing clarity on the jurisdictional areas of the High Court and the Minister notably remarked that it made sense to begin assessing things from a market value point of view.

On the Eskom matter, he said the problem with Eskom was that the entity was pursuing the “willing buyer, willing seller” approach and a couple of landowners held out to drive up prices. Therefore such a Bill as tabled was important to tackle land acquisition although it had to be in line with the Constitution.   Adv. Grobler was thanked by the chairperson, Ben Martins, for his thoughtful observations.

cosatu2The Congress of South African Trade Unions (COSATU) submission descended into an argument between their need for an answer why land restitution had “failed so far” and the fact that the land was “stolen” in the first place. A response was made by FF+ member, F Groenewald, that most of the land referred to had been stolen from the Khoi-San by such historical parties as King Shaka in the first place.

Chairperson, Ben Martins, called for order and asked both parties to continue their debate “at another timeBenedict Martins in a different place” since the issues were irrelevant to the meeting.

However, Mathew Parks, parliamentary coordinator at COSATU, submitted the view that government should never compensate theft and emphasised that arbitration should be able to take place prior to referring to a court at low cost. The present process was, moreover, described as long, costly and intimidating. This could be sorted out without changing the Bill.

He suggested as a solution the development of an advisory panel on expropriation which would provide actors in a dispute with a comprehensive framework, enabling the development of fruitful negotiations.

He described the recent criticisms directed against the Bill in the media as attacks lacking any foundation. He urged members of the committee to vote in favour of the Expropriation Bill as it stood.

In conclusion, Deputy Minister Cronin said that Department of Works and his Ministry Department had much benefited from the general support and advice contained in the majority of the submissions. It was a Bill which was now perceived as a nearly completed and was now a working document which any government needed to bring matters in line with international practice.

He added that the Freedom Charter “did not contain any reference to the possibility of nationalising any land” and this was a “red herring”.

Other articles in this category or as background
Expropriation Bill has now to be faced – ParlyReportSA
Zuma goes for traditional support with expropriation – ParlyReportSA
Expropriation of land stays constitutional – ParlyReportSA
Amended Expropriation Bill returns – ParlyReportSA

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We can do better says new public works minister

Thembelani Nxesi, minister of public works minister, during his maiden budget vote speech, told parliamentarians that he welcomed the budget of nearly R8bn for next 2012/13, saying “while it represents an increase of approximately 2% from the previous year’s budget, it sends a clear message that the department must not think of a real increase in budget, until there is real improvement in performance”.

On the leases, the minister said there were no quick wins as years of poor management, under capacity and lack of financial controls had provided fertile terrain for fraud and corruption. Minister Nxesi says serious irregularities have come to light, thanks to the detailed work of the Special Investigating Unit.

On this issue, Nxesi said, “To give a sense of the scale of the task we face, the department manages approximately 3000 leases – of which a quarter has lapsed and is being paid on a month by month basis. Recent media reports have highlighted problems experienced by the South African Police with their accommodation. To place this in perspective: we manage 1,277 leases on behalf of SAPS.”

Twenty-two such leases have already been identified in one region alone — involving payments of over R64m, the minister told parliamentarians. He said, “This includes leases where the department paid for the duration of the lease without the building being occupied. We have instructed our lawyers to approach the High Court to nullify these irregular lease agreements, and institute civil action against whoever unduly benefited. “

He said, “Criminal cases are being opened against several officials; more are expected. I am informed that some criminal investigations have been concluded and arrests are imminent.”

The long-awaited Expropriation Bill will be tabled during 2012, said Nxesi. This was shelved in 2008 after objections that it was unconstitutional since the draft aimed to allow the state to expropriate farms in the public interest, including for land reform.   The issue was, when the bill was shelved, as to whether government officials, rather than the courts, should decide on the amount of compensation for owners of expropriated farms .

Previous minister of public works, Geoff Doidge, said last year a new draft was underway and would be “be applicable across the board as appropriate in constitutional terms for all state entities to use where a common framework is needed as a guide to expropriate property”.

Legislation will also be introduced “reforming” the Council for the Built Environment, Nxesi said.

Posted in Cabinet,Presidential, Finance, economic, Public utilities, Security,police,defence, Trade & Industry, Uncategorized0 Comments


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