Tag Archive | public works

Expropriation Bill tops parliamentary agenda

Expropriation Bill to be voted on ….

Sent to clients 4 January….The Expropriation Bill is now carried over into this year’s first parliamentary termcronin2 because of the earlier strike of parliamentary workers, still not fully resolved. The Bill originally provided for the “expropriation of property for a public purpose or in the public interest, subject to just and equitable compensation.”

What defines “a public purpose”, “property” and “the public interest” have been the subject of five weeks of hearings and debate in the Portfolio Committee of Public Works. Reference to the Constitution has been constantly made.

The Bill, considerably refined in some aspects, is expected to be passed quite early in the new parliamentary year as part of a personal determined drive by Deputy Minister of Public Works, Jeremy Cronin.

Behind the Bill

Minister Cronin has attended each and every portfolio committee debate, all the hearings and responded for the most part to Opposition questioning and the rejection, to varying degrees, to changes of some of the proposals contained in the Bill and accommodating others.

The State Law Advisor and various parliamentary legal advisors have been attending all meetings since their advice was constantly being sought during discussions in the clause-by-clause debates.

A major issue to be debated was whether this Bill could be “trumped” by BEE legislation, a trumping proposal for BEE legislation to trump other legislation having being proposed in different forums. It appears that this is now the case.

The Bill has achieved a “B” version – in other words there being so many amendments that the entire Bill has had to be re-printed and tabled, this now being the version parliamentarians are working from.

Luthuli House query

The fact that the expression “subject to just and equitable compensation” was removed by the ANC from the long title of the “B” version of the Bill has led many Opposition members to suspect the motives of the ANC in supporting many of the amendments made during the closing passage of the Bill. This issue will probably be the first to be debated when Parliament re-opens.

Until now, Deputy Minister Cronin has been going to extreme measures to explain that the main purpose of the Bill is to assist Eskom in its drive to equip the utility with the tools to enable it to connect more grid lines to under supplied industrial areas. However, the recent change has re-established a lack of trust by opposition members, particularly those representing the farming lobby, that this is really the policy behind the Bill.

Previous articles on category subject
Expropriation Bill grinds on – ParlyReportSA
Expropriation Bill phrases could be re-drafted – ParlyReportSA
Zuma goes for traditional support with expropriation – ParlyReportSA

Posted in Land,Agriculture, LinkedIn, public works, 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

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