Bill ostensibly to “free up” state land
The Office of the Chief State Law Adviser, the legal entity that provides legal advice to the Cabinet, has cleared the recently re-introduced Public Works Expropriation Bill as constitutional, a declaration necessary for all Bills called for by the Speaker of the House when tabled.
Certification to this effect has been handed over to the speaker’s office.
The Bill, designed to provide for the expropriation of property for a public purpose or in the public interest, was published for comment at the beginning of 2019.
Jeremy Cronin’s umbrella
The Expropriation Bill has a history of slow development since a first draft appeared in 2016, the Bill always being a public works ministerial issue since state property, in both an acquisition and disposal sense, is the subject matter. Public Works runs the State Assets registry.
In December 2019, and before Covid, a third and most probably final draft of the Bill was published by government gazette by the Minister of Public Works, Thulas Nexsi, with a 60-day period for public comment. Over 50,000 such comments were made apparently.
Many felt the Bill was being pushed under the mat quietly during the Covid emergency and objections have been most accusatory accordingly
The first tabling of an Expropriation Bill was in 2017, mentored through Parliament by Jeremy Cronin (ANC), and which had some success in being adopted but never made the final cut at the end of the Fifth Parliament. This Bill therefore fell away.
The 2019 up-dated version of Expropriation Bill came out only a short while after ConCourt had decided to tell Parliament to form an ad-hoc committee to gain public opinion on the whole subject of ‘nil’ compensation.
This proposal was very much in the shadow of the continuing noisy debate surrounding the whole question raised by the EFF on the question of land reform and the motion put before Parliament to bring change to Section 25 of the Constitution.
Form a committee
Having ruled subsequently that the public must be drawn into any proposed amendment to Section 25 of the Constitution, President Ramaphosa then asked that Parliament task a special ministerial committee with the Deputy President in charge and prepare a report based on the hearings regarding section 25 matters.
Much confusion existed for a while in the public mind as to what the Concourt findings intended on the matter; whether the EFF motion was in any way coupled with this and how the latest draft Expropriation Bill before Parliament fitted into the whole jigsaw of land reform. Once again this Bill fell away with the end of the Fifth Parliament.
Now with the final and third version of the Expropriation Bill having been tabled in Parliament by current Minister of Public Works, Patricia de Lille, much of the sting and loathing towards the whole subject of the acquisition of land for nothing has been reduced by time passing.
“Nil compensation Cronin said many times, was not necessarily an oxymoron for Mugabe and his excessive actions, but some times a necessary state action. Nobody was “land grabbing”, he said, despite inferences to this extent by the extreme right wing, followed by the left with the EFF.
More hopeful is the propsal that the Expropriation Bill could be a major tool of land reform, the objective being rather being to acquire land out from the state assets register for new settlements, better housing, industrial complexes and possibly unused but arable land for black farming development.
The right wing is highly suspicious and they are joined by many political analyists who feel that legislation if approved is a loose cannon in the hands of socialist reformers and anarchistic forces.
With Deputy President
In the meanwhile, the Presidential Ad hoc Committee under Deputy President Mabuza, in clarifying the weight of opinion on altering Section 25 of the Constitution, has turned out to be a very lengthy process as seem to be all ministerial tasks of recent.
In this case, MPs chosen by Parliament to launch into public hearings also delayed because of Covid 19.
Meanwhile, this latest version of the Expropriation Bill gives more clarity on its legal proposals to acquire land under circumstances which land can be acquired. This includes property on the land defined and where no compensation need be paid for the transfer of ownership under certain circumstances.
Should it be set for ‘nothing’ in such cases this is seen as being for ‘zero’ payment, not ‘nil’ compensation, a far better synonym carrying the inference of acquiring rather than “grabbing”.
Comment in informed quarters has been that providing all and sundry do not flood the political arena with fake news and purposeful misunderstandings to cause trouble, this latest version of the Bill outlines a number of quite acceptable of circumstances for a just and reasonable acquisitions by the State for the zero sum.
The final answer
The provisions of the Bill state compensation to be paid to an expropriated owner or holder must be just and equitable reflecting an equitable balance between the public interest and the interests of the expropriated owner or holder.
It also states that it may be just and equitable for zero compensation to be paid where land is expropriated in the public interest under certain circumstances such as where the land is occupied or used by a labour tenant, where the land is held for purely speculative purposes.
It also, importantly, would apply to a situation where the land is owned by a state-owned entity and where the market value of the land is equivalent to, or less than, the present value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land.
Freeing things up
To many, especially in Public Works itself, the Bill represents an easing of the logjam that has beset the process of freeing up further land, Patricia de Lille having been an exponent of new processes that are needed for urgent land re-distribution in urban areas for township settlements. The department of Public Works is, of course, the owner of the state asset register of properties.
The Bill is expected to receive the urgent attention of Parliament , bearing in mind that Committee chair Dr Mathole Motshekga has said that the new deadline for comments from the public will be 28 February 2021. Oddly enough, to the day ,this is exactly what happened in February 2020 to the previous Bill because of extreme public interest.
Dr Motshekga said this was because the public did not have sufficient time to comment meaningfully on the Bill, he said.
On the question of whether it is necessary to continue with the question of amending section 25 of the Constitution, Thoko Didiza, Minister of Agriculture and Land Reform, has entered the fray and said that the finalisation of this issue remained necessary since clarity at law was needed on the whole matter of “nil” compensation.
Deputy President David Mabuza, chairing the inter-ministerial committee and who seems as always to have done very little, has commented that that the tabling of the Expropriation Bill is a “cogent indication that government is indeed at work to realize redress.”