Wordsmithing the Expropriation Bill

…..Article dated May 2022…

Wordsmithing the Expropriation Bill…

Defining and explaining the “nil” expropriation clause     

In a recent meeting of the portfolio committee on public works currently engaged in debating the Expropriation Bill, were both Adv. Uday Naidoo, advocate of the High Court and Member of the Cape Bar, and Adv Geoff Budlender, to answer earlier questions put by MPs on the Bill’s wording. Both advocates have been in service to Department of Public Works in bringing the Bill to its conclusion. The kernel of the debate still remains the issue surrounding the circumstances under which “nil” compensation may be paid by the state.

The Bill is currently returned to Parliament for processing now that provincial views on the draft are to hand after six weeks of provincial hearings.

Eye to eye

Both advocates were introduced by Minister of Public Works and Infrastructure, Patricia de Lille, as being in the service of her department and were present to finalise the Bill and answer all queries from and to assist in rewording the Bill where appropriate. Their responses to the earlier questions were in a 20-page submission conveyed to Parliament as a handout for the meeting but, the Minister said to the virtual platform joining the meeting that it was important to convey the responses personally. De Lille likes to say she plays poker with an open hand.

Both Adv. Naidoo and Adv. Budlender, she said, had extensive knowledge on the legal aspects surrounding this particular legislation, its passage so far, its purpose and associated constitutional issues. They would explain their responses to the many suggestions made and their rationale behind their acceptance or rejection.

From the top

First on the extensive list of queries from MPs was the matter of the titles of the Bill.  (All proposed legislation before Parliament has a short title on the frontspiece and a long title in the following body of the draft which includes the purpose and the proposition made in the Bill……  ed)

The Committee had raised a concern that the long title in its description made reference simply to ‘nil compensation’ as a bald expression, not putting it into the proper context of ‘nil compensation’ being “just and equitable” and as such being described as part of the definition.  This was bound to cause deep concern by many on the intentions of the Bill, it was said.

Adv. Naidoo told MPs that this was a good observation and, in fact, was a query totally in line with the Constitution. The long title, now re-worked, would read:

‘…. expropriation for a public purpose or in the public interest; to regulate the procedure for the expropriation of property for a public purpose or in the public interest, including the payment of compensation; to identify certain instances where the provision of nil compensation may be just and equitable for expropriation in the public interest; to repeal the Expropriation Act 63 of 1975, and to provide for matters connected therewith.’

Property puzzle

Adv. Naidoo then referred to MPs queries regarding the words “land and its attachments”. First of all, he clarified that ‘land’ in common law includes all the pertinences which accede to the land and that everything attached to the land becomes intrinsically part of the land including physical structures, such as a house or a barn or a pool. It would also include such infrastructure as water towers and windmills and all land rights unless specifically excluded. This was established in law and was called accession, he said.

There was then a lengthy explanation from Adv. Naidoo on the issue of “intangible property” on which it would be unwise for this report to précis.   Essentially, he was explaining to MPs that the Constitution was purposefully vague on property generally as its authors had foreseen difficulties of describing such in constitutional terms. Common law on property ownership was much clearer, he said. 

Point of reference

He gave a number of circumstances of “intangible property” that might have to be dealt with by the courts and then said, “But in the end, the Constitution must be favoured as the point of reference since if the Expropriation Bill did not recognise “constitutional” property” as property under the Bill it would not be providing the protection that owners needed.”

For the very same reason, Adv. Naidoo explained, the jurisdiction of courts to deal with expropriation matters might need to be restrained.  The original Bill, he said, when defining who could hear such matters, had included Magistrates Courts – the thinking being to make access to courts more readily available to those who did not reside in urban areas and for those who might not be able to afford access to the High Court.

Under the microscope

He said that under the Promotion of Administrative Justice Act, the Minister of Justice may designate certain magistrates’ courts as having jurisdiction in respect of administrative matters and selected magistrates may be sent on training and acquire the necessary skills and expertise to preside over administrative disputes.

The problem with this concept, said Adv. Naidoo, and now raised by DOJ, is that magistrate’s courts were not “courts of record” as was the case with the 13 High Courts.   One magistrate might give a decision in a certain matter whereas a different magistrate might give a completely different decision, he said, and this would be confusing matters.   It would also be necessary at law to increase the monetary jurisdiction of the Magistrates’ Courts if these were used, he noted.

New Court

Adv. Naidoo referred to the new Land Court Bill, just tabled, which was supposed to form a court specifically to improve the land reform processing, but he said he found the Bill in its very early stage vague and unclear on its purpose and jurisdiction. (Refer earlier ParlyReport).  He had been asked to study this Bill, and indeed he had, but he could not recommend the inclusion of a court not yet formed or even defined.

In his view, the best route, he said would be to use the term High Court when defining the expression “court” and await the passing of the Land Court Bill, which would be part of changing the purpose and supposedly the jurisdiction of the existing Land Claims Court, a matter which was not the concern of the Public Works Committee.

 Offer accepted or not?

He noted that the Democratic Party were concerned about the definition of ‘disputing parties’ and had queried why the definition of ‘disputing parties’ did not include parties who dispute the decision to expropriate but only parties who dispute the amount of compensation.

Adv. Naidoo proceed to explain the reasons for this over some time, but essentially a summation might be that during the expropriation process, the administrator makes an offer of compensation.  If the offer is accepted, all well and good; there was indeed agreement and the relevant condition of the Constitution is met. If there was no agreement, then the parties go to court. 

He concluded on this matter by saying the Constitution invests the power in the court to decide the amount of compensation since there was no agreement. His presentation of the facts indicated that he felt  that the DA were over-complicating the issue.

Up-dating

The Committee also raised a query about the definition of ‘deliver’, asking why e-mail was not included in the definition of deliver.   Adv. Naidoo said the idea had merit and he left it to the Committee to add the wording, cautioning that with all the current electronic mail problems and cybercrime, the Committee should consider the requirement that any email be followed up with the delivery of posted copies as an over-rider in the wording of the Bill. He explained how to adapt the various clauses in the draft Bill to achieve this.

The Bill now goes forward for final debate and a committee vote which, if approval is gained, will mean a final vote in a few weeks in the National Assembly.  Being a Section 76 Bill, more than a simple concurrence in the NCOP will be required since the Bill must go to all nine provinces for “yes” or “no” mandates.

 

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