Tag Archive | expropriation

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

Posted in Facebook and Twitter, Land,Agriculture, LinkedIn, public works, Special Recent Posts, Trade & Industry0 Comments

Land Holdings Bill joins state acquisition trend

Any new land holdings by foreigners to be excluded…

bbc logoThe BBC on their website quotes Minister Gugile Nkwinti of Rural Development and Land Reform (RDRL) as stating that a Land Holdings Bill “would be introduced to the South African Parliament by 2019″ which would, quoting the Minister further, restrict to locals the purchase of new land in terms of South African law.

In the light of the ministry involved and its mandate, this is likely to mean “productive” or agricultural land.

On their website and under the heading “SA to fast-track bill to block land sales to foreigners”, the BBC further reported that according to Minster Nkwinti this “would not mean annexing of current properties as this would be unconstitutional”.

Too much owned by foreigners

A weaker rand and lenient property laws had contributed to the South African decision, said the BBC, and further quoted the Minister as stating that “7% of land in SA was currently owned by foreigners.”  Minister Nkwinti has since said it might be less than 5%.

A “foreigner”, said the BBC,  is as per “the definition used by the South African Department of Home Affairs”.

Gugile_NkwintiLocally, Minister Nkwinti has said that Bill is to be tabled urgently in Parliament but that he had “no problem with the Bill being processed in the financial year ending 2016”. It is important to realize, he said, that the Bill will apply to agricultural land ownership only, or what is termed “productive land”.

Other Bills in process on expropriation

When the first outcry against the Bill was heard in South Africa, the BBC continued, it was soon confirmed by the RDRL department that residential property was not being targeted. Most of the argument against the Bill has been on constitutional issues, backed by a fear that this is the “thin edge of the wedge” in terms of investment certainty, the BBC concluded.

The reason for the Bill, Minister Nkwinti also said during a local media briefing in the parliamentary precinct, was to “address land reform and food security in South Africa.” The property referred to was that which exceeded a 12 000 hectare ceiling and the minister added that “on the basis of a just and equitable principle we shall pay for any land.”

A separate Bill is now to be enabled whereby a state valuator post is established to evaluate whether a stated market price is fair or not and to process such acquisitions. How independent this valuator will be from state pressure is not clear.

This is all in tandem with an Expropriation Bill, stated as being more designed to meet state infrastructure requirement needs, the acquisition of land for state electricity transmission grids being quoted by Deputycronin  Minister Jeremy Cronin, who briefed Parliament on the Bill, as an example. However the Bill is unclear on the use of the words “in the public interest” and what constitutes  “property” in terms of the tabled Bill.

Also out for comment at present is a Promotion and Protection of Investment Bill tabled by the Minister of Trade and Industry which deals with the subject of foreign based investment in South Africa and the “protection” of local industry and local manufacturing.

Posted in Facebook and Twitter, Finance, economic, Land,Agriculture, LinkedIn, Special Recent Posts, Trade & Industry0 Comments

Expropriation Bill has now to be faced

Much of the sting goes out of Expropriation Bill…..

landseizuresThe subject of expropriation, not necessarily of land but any property, has now reached the stage of a considerably watered down third Bill which has now been tabled and whilst there are grumbles from many quarters, it appears that the new Bill has not caused the same furore as its predecessors.

The long awaited Expropriation Bill (B4-2015) came before Parliament in the form for a briefing to the portfolio committee of public works attended by the minister of public works, Thulas Nxesi, the briefing itself remaining very much in the hands of the deputy minister, Jeremy Cronin.

Great emphasis was laid by both ministers on the difference between expropriation as a “public purpose” and expropriation “in the public interest”, a difference they said that was clearly laid out in South Africa’s Constitution.

Public purpose, public interest

nxesiMinister Nxesi in his introduction said if there was a need to put up electricity lines or build a road, it was then for a “public purpose” and he saw that there could be no argument – a statement which was later queried by opposition members.

However, minister Nxesi said, expropriating property for “public interest” had to pass a rigorous rationality test as stipulated in the Constitution but a major problem with all Bills previously tabled was that there was no recourse to the courts and on this issue the cabinet had decided to withdraw them. Jeremy Cronin seemed to come to the rescue with a far more detailed and rational presentation.  

He argued that expropriation was an essential mechanism or tool for any state in any country to acquire property under certain instances but much emphasis had been laid in South Africa on the issue of land and white commercial farmers.

He admitted that whilst “public interest includes the nation’s commitment to land reform” in the Bill before them, a fact emphasised in the preamble to the Bill, the proposed legislation was very much in the nature of a mechanism to deal with expropriation rather than say who it applied to.

Expropriation just a “tool”

croninMinister Cronin added that this was one of many reforms taking place to bring about equitable access to all South Africa’s natural resources and reforms to redress the results of past racial discriminatory laws or practices. Such a preamble existed in much of South Africa’s legislation since 1984.

He said, “The Constitution requires “just and equitable” compensation to be determined by having regard of all circumstances without placing undue weight on any single or particular factor. National, provincial and local government were empowered to expropriate property to varying degrees through several pieces of legislation, he noted.

Deputy minister Cronin tracked the history of the Bill before them stating that the 1975 Expropriation Act was totally unconstitutional as it gave draconian powers to the state and was “wisely” withdrawn. A further 2007 Bill was also removed on these grounds and the current Bill was unable to be processed for Parliament before the 2014 elections.

In line with Constitution

settlement_law_justice_However, he said, the Expropriation Bill B4-2015 seeks to ensure consistency with the Constitution and to provide uniformity of procedure of all expropriations without interfering with the powers granted to the expropriating authorities.

Opposition members claimed that the Bill enlarged upon the definition of “public interest” contained in the Constitution and the Bill could not do this constitutionally. Nor did the Bill talk to in broad terms to the issue of compensation, whether it be a commercial farm or alternative accommodation for a shack dweller.

They argued that the new Bill did not talk to the issue of the interest of a bank in terms of a mortgage and where the bank might stand on such issues. The Bill now tabled, minister Cronin said, detailed the manner in which the expropriating authority had to follow, as well as setting up the process of evaluation and the authority to do this “in a just and administrative way”.  

On mortgages and loans from a bank, he said it was the bank that will be expropriated and not the individual.

Credibility of Bill challenged

masangoDA member Masango contradicted this and said any agreement or loan was between a person and the bank and not the state and the bank and he asked how the Bill could have possibly got through the NEDLAC process.

He also raised the issue of poor people not be able to afford litigation if the process of expropriation was contested. ANC member Madlopha said “whilst the media had been rubbishing the Bill, saying that it targets white commercial farmers”, the Bill in her mind gave the state power to expropriate with only a simple notice to the property owner, a process which seemed to contradict with common law.

Blaming apartheid and more

Minister Cronin responded along the lines that in expropriation, the property clause in the Bill of Rights guided the process. Indeed, argument, he said, will no doubt occur on “just and equitable compensation matters” but this did not remove “the consideration of colonial injustice”.   

It was the Constitution, he said, that insisted that in determining “justice and equitable” compensation it should include the process of “restitution”. Deputy Minister Cronin commented that expropriation did not just affect white commercial farmers and any compensation would consider the amount of bond outstandings. 

He concluded that the new Bill was attempting to shorten the process of any litigation. He added that the NEDLAC findings on the Bill would be supplied to Parliament and suggested that the committee ask Agric-SA to appear before them to obtain their views.

Other articles in this category or as background

Zuma goes for traditional support with expropriation –

ParlyReportSA New approach to land reform – ParlyReportSA

Posted in cabinet, Cabinet,Presidential, Earlier Stories, Facebook and Twitter, Land,Agriculture, LinkedIn0 Comments

Expropriation of land stays constitutional

Minister now quoted in Parly minutes…

In a press media briefing and subsequently in a meeting of the 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.

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

There was considerable satisfaction from opposition members as a consequence since such a statement, they said after the meeting disposed of fears of arbitrary state expropriation of land.

WSWB gone

Nevertheless, the minister was clear in his responses that the process of “willing seller, willing buyer” had been abandoned as a state mechanism.  He emphasised that whilst the principle of market valuation would still apply, it would be up to the new state valuator to establish price and not the parties involved to barter, sometimes endlessly, he commented.

Subsequently, in the newly proposed Bill on property valuation itself, the position was more clearly expressed with the proposal of an office of a Valuer-General,which the department said in its briefing to parliamentarians, had been necessary in order ” to establish an entity to carve through the current settlement process”.

The minister stated during his briefing at the time to parliamentarians that since its inception, the state’s restitution programme had benefited some 370,000 households.   This meant, he said, that some 1.83m persons had benefited so far from the 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”.

The new closing deadline for lodgement of land claims has now been set for mid 2019 and a booklet on how to lodge a claim was circulated amongst members and which is now in public circulation.

The minister emphasised his point that claim forms would not be distributed but that  claimants, whether they be a direct descendant, a juristic person such as a company or trust  or a “representative of a community”, who felt they had a right because they were dispossessed of land rights had to call first upon a land affairs lodgement office.Mobile lodgement offices would visit all areas, the department told MPs, and the lodgement process required no fees.

Backlog

Under questioning, the minister confirmed that over 8,000 claims were still outstanding from the previous lodgement process and that these would be finalised with the new process now being instituted.    R24bn has so far been expended in financial settlements or land purchases.

The minister said he had not set a target for any new claims but he was confident that the programme would be achieved at a faster rate this time around because claims could be lodged electronically.

Disquiet was expressed by some MPs that land acquisition and financial compensation were the choice for claimants.   Some MPs expressed the view that they were “uncomfortable” with a monetary solution as a solution to dispossession as 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 stated that both avenues of compensation were a correct solution since in all approved cases, the parties had been wronged and deserved redress.

What started the latest row

As part of the package, minister Nkwinti said, he had made a further proposal, much publicised, that farm workers would be enabled by law to have a share of the land they have worked on according to their service in years.     Public comment had been called for and the results would be put to Parliament.    Only then could the final result become a debatable issue.

Minister Nkwinti made special reference to the complex issues surrounding land acquisition and land claims in the Western Cape, which he said were “very complex”.    In answer to questions on the Khoi and San issues and their claims going back further into South Africa’s history, the minister said the current process was to reverse the legacy of the 1913 Native’s Act and the damage caused by apartheid.

However, he said, some sort of agreement had to be made on the Khoi and San issues and in one instance already such matters had been dealt when applicants had asked for preservation of an area as a heritage site and government had made the acquisition accordingly.    A separate report to the President’s Office was to be made on the Khoi and San issue.

EFF members of the committee rejected the proposals as unworkable and said they “would not turn around the situation where the majority farm workers who had been evicted over the years would see redress and where 40,000 white farm owners remained owning agricultural land.”

Other articles in this category or as background
http://parlyreportsa.co.za//cabinetpresidential/new-approach-to-land-reform/
http://parlyreportsa.co.za//cabinetpresidential/minister-says-need-for-legislation-on-land-reform-a-priority/

Posted in Facebook and Twitter, Justice, constitutional, Land,Agriculture0 Comments

Infrastructure Development Bill modified and passed

Minister responds on land issue….

ebrahim patelThe Infrastructure Development Bill recently tabled by Ebrahim Patel, minister of economic development, appears to have avoided major confrontation as a result of re-wording of the provisions it contained regarding expropriation of land for major projects, the Bill having originally granted the state the right to expropriate land where a development project, declared as a Special Infrastructure Project (SIP), was concerned.

The Bill was passed by the National assembly and recently went to the NCOP for concurrence. Recent reports indicate it was passed.

Most submissions criticising the Bill said that the new proposals completely overstepped the mark on the question of expropriation but minister Patel has now assured all parties that such expropriation, if it took place because of a SIP, would be in terms of existing legislation when it came to the acquisition of land needed.

PICC oversight will cost project

In terms of the Bill, each SIP is to have a steering committee which will put in place time frames; attempt to deal with regulatory delay challenges; address project management and ensure the coordinated issuing of permits and licences but the PICC budget for the particular SIP would have to be funded out of the departmental budgets or those of the state-owned companies responsible for managing a project.

The Bill also gives the stamp of approval to PICC, the body which has adopted the National Infrastructure Plan of 2012 that intends to “transform the SA economic landscape while simultaneously creating significant numbers of new jobs, and to strengthen the delivery of basic services by planning and developing enabling infrastructure that fosters economic growth.”

Expropriation to be as presently defined

But the Bill as introduced into Parliament overstepped the mark on the question of expropriation when it came to ensuring that a SIP became a national priority and the minister has indicated that a new cause has been drafted to make it clear that any expropriation required in terms of the strategic integrated projects will be carried out in accordance with the provisions of current legislation.

Minister Patel told parliamentarians that all thirty written submissions had been received and noted and the Infrastructure Development Bill had, as a result of these public hearings, strengthened the constitutionality of the work of PICC, reduced ambiguity on the subject of SIPs whilst ensuring that public consultation had led to transparency.

He said the Bill was important as it involved some R1-trillion on infrastructure since 2009 and the Bill in giving legal standing to the work of PICC was a “milestone in South Africa’s economic development”.

Environmental impact overlooked by Bill

Another complaint was that despite the fact that, if passed, the Bill would co-ordinate some of the biggest infrastructure projects in South Africa’s history, the provisions  make no reference to the need for infrastructure development to be environmentally sustainable other than a clause acknowledging that the SIPs will still need environmental authorisation under the National Environmental Management Act (NEMA).

South Africa has a comprehensive environmental impact assessment (EIA) regime and the department of water and environmental affairs, over the past five years, had spent time and parliamentary effort to improve, streamline and speed up EIA processes, the minimum period for such clearances going no faster than 300 days for clearance on EIAs as far as NEMA is concerned, under any circumstances, in the national interest.

The idea of PICC being allowed to reduce this environmental clearance to 250 days, or even shorter time frames for mega-projects, has the environmental world in a stir it seems, the shortening process, they say being impossible to manage to and which renders EIAs meaningless.

Environmentalists say that decisions about big projects that will affect the whole nation for generations to come must be made using comprehensive information about social and environmental impacts in compliance with NEMA and this takes time, the minimum possible being 300 days as envisaged by NEMA.

It seems that minster Patel has solved the land expropriation issue but has not satisfied the environmentalists who still complain that in its present form the Infrastructure Development Bill will not achieve its aim as far as fully integrated development in the national interest is concerned.

The Bill is headed for promulgation sometime in the mid year, and was passed before the end of the present session in an extended session of the NCOP.
Earlier articles on this subject:
http://parlyreportsa.co.za//cabinetpresidential/infrastructure-development-bill-legislates-growth-path/
http://parlyreportsa.co.za//cabinetpresidential/gigaba-answers-critics-infrastructure-build/
http://parlyreportsa.co.za//cabinetpresidential/gigaba-answers-critics-infrastructure-build/

Posted in Cabinet,Presidential, Earlier Stories, Enviro,Water, Facebook and Twitter, LinkedIn, Trade & Industry0 Comments


This website is Archival

If you want your publications as they come from Parliament please contact ParlyReportSA directly. All information on this site is posted two weeks after client alert reports sent out.

Upcoming Articles

  1. MPRDA : Shale gas developers not satisfied
  2. Environmental Bill changes EIAs
  3. Border Mangement Bill grinds through Parliament

Earlier Editorials

Earlier Stories

  • Anti Corruption Unit overwhelmed

    Focus on top down elements of patronage  ….editorial….As Parliament went into short recess, the Anti-Corruption Unit, the combined team made up of SARS, Hawks, the National Prosecuting Authority and Justice Department, divulged […]

  • PIC comes under pressure to disclose

    Unlisted investments of PIC queried…. When asked for information on how the Public Investment Corporation (PIC) had invested its funds, Dr  Daniel Matjila, Chief Executive Officer, told parliamentarians that the most […]

  • International Arbitration Bill to replace BITs

    Arbitration Bill gets SA in line with UNCTRAL ….. The tabling of the International Arbitration Bill in Parliament will see ‘normalisation’ on a number of issues regarding arbitration between foreign companies […]

  • Parliament rattled by Sizani departure

    Closed ranks on Sizani resignation….. As South Africa struggles with the backlash of having had three finance ministers rotated in four days and news echoes around the parliamentary precinct that […]

  • Protected Disclosures Bill: employer to be involved

    New Protected Disclosures Bill ups protection…. sent to clients 21 January……The Portfolio Committee on Justice and Constitutional Affairs will shortly be debating the recently tabled Protected Disclosures Amendment Bill which proposes a duty […]