On 23 January 2021, land experts and activists, Advocate Tembeka Ngcukaitobi and Professor Ruth Hall, were hosted by Siviwe Mdoda, land justice educator at the Tshisimani Centre for Activist Education, for the first of a series of webinar discussions on the currently tabled Expropriation Bill.
The premise of the discussion was that the Expropriation Act 63 of 1975 is out of date and does not provide for the government to expropriate land for the purposes of land reform and restitution in recognition of previous land dispossession as stated in Section 25 of the Constitution.
Mdoda noted that while land expropriation was supported by land activists, it was a discussion that made land owners nervous, mostly because of the history and politics of land in South Africa. He said it was for this reason that the discussion needed to be platformed, allowing for a deepened understanding of the Expropriation Bill of 2020, which is an amendment of the Expropriation Act of 1975.
Ngcukaitobi traced the history of land in South Africa by explaining that there was no concept of private land until the arrival of settlers from the Netherlands and England. This, however, was not to say that the native people of South Africa had no understanding of ownership, because they owned things such as livestock and dwellings.
He traced the genesis of the law of private land ownership that started to take shape with the Land Commission of 1846, which made recommendations in favour of private land ownership over tribal ownership. This notion took hold first in Natal (now KwaZulu-Natal) and took longer to concretise in the Cape, particularly the Eastern Cape. This was followed by another Land Commission in 1883, which asserted that land belonged to chiefs. This was untrue, as chiefs held the land in trust for their communities. The commission rejected private land ownership by natives and decided that the land would be owned by the Crown (the Queen of England) and that trusteeship would be in the hands of the government.
Ngcukaitobi said that in 1912 the state had made it clear that it had the right to attain land forcibly and without compensation. With the growing need for land the Natives Land Act of 1913 was introduced. This act explicitly stated that natives had no rights to land in urban areas. This allowed for the land dispossession of natives by the state in order for the settlement of white people to take place. This also gave rise to the Group Areas Act of 1950, according to which people were segregated and resettled by the state according to their racial classification. According to the final Group Areas Act that was passed, if an alternative property was provided for people removed from expropriated land, it was deemed sufficient compensation.
Ngcukaitobi explained that between 1912 and 1965 land expropriation arguments circled around the question of whether people would be offered full market-related, above or below market-related compensation for land taken by the state. The premise was “willing buyer, willing seller”. The question of the willing buyer and willing seller was however later challenged by apartheid-era judges, as this assumed the state was not the only one buying land for public use.
The arguments by the apartheid-era judges were that the notion of a willing buyer and willing seller when it came to state expropriation was “fictitious” and that price was merely an approximation or a thumb-suck. The basis of this argument was that there was only one willing buyer, and therefore no competition and no open market.
Ngcukaitobi said that in 1994 the new government recognised market-related compensation for the expropriation of land in the Constitution not as a standard, but as a factor. This was something the apartheid-era judges would have been surprised by as they found this assumption arbitrary.
The new argument that has been introduced into the current bill is whether there should be compensation at all for the expropriation of land, said Ngcukaitobi.
Expanding on the discussion, Hall said there needed to be caution in how the land reform and expropriation discussion was framed. What the ANC was saying about expropriation was different to what the EFF was saying. It was not talking about nationalisation but about expropriating particular properties through a particular legal process, and the issue of legitimate ownership of the property was not being addressed.
According to Hall, the reason a new expropriation act was necessary was because the existing act of 1975 was implemented when the state was expropriating land for the purposes of consolidating Bantustan homelands which no longer exist. The Expropriation Act of 1975 also contradicts Section 25 of the Constitution because the Constitution says land will be expropriated for the purposes of land reform, public services and, in what Hall says is a particularly powerful part (Section 25.5): “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
While Hall supports the Expropriation Bill, her concerns are:
Hall’s ultimate concern, however, was that without adequate consultation citizens would think the bill was about empowering the state and not the people. This necessitated a debate about what should trigger an expropriation and how compensation should be determined.
Other issues that Hall felt needed to be addressed before the bill went ahead were the decriminalising of land occupation, dealing with stuck restitution claims and pushing for a land redistribution bill that would give life to, and be clear on, what “equitable access to land” meant and what the state was obliged to do to make this a reality.
In closing, Ngcukaitobi said the Expropriation Bill needed to be framed in a way that safeguarded the property rights of vulnerable groups such as those living in informal settlements or in what were previously known as Bantustans. The current bill “draws no distinction between people who already have attenuated rights to their property”, such as the people of Xolobeni, those who fall under the Ingonyama Trust, and those with individual property rights.
“The entire apartheid state was based on the increasing encroachment on the property rights of black people,” said Ngcukaitobi, a fact which emphasised the need to properly critique the implications of the bill in its current form. DM/MC
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