Expropriation is not a new idea. The concept of governments taking private property for a use that benefits the overall public has existed for hundreds of years. In the United States, it is known as “eminent domain” and has been used by the state to build bridges, roads and airports. In Brazil, expropriation has been used to promote socio-economic change. 

In South Africa, “expropriation” has been used for infrastructure improvements such as the construction of sections of the Gautrain. In March 2020, the City of Cape Town agreed to use expropriation as a tool to address the housing needs of thousands of poor people.

On 4 March 2020, the City of Cape Town, in a negotiated settlement with residents of the Marikana informal settlement, property owners and the Western Cape Provincial Minister of Human Settlements, agreed to purchase the land underlying the Marikana informal settlement in Philippi. Marikana is home to more than 60,000 people and was the subject of the landmark case, Fischer v Unlawful Occupiers and Others, which was an attempt by the private landowners to evict the people who call the settlement home.

In August 2017, the Western Cape High Court dismissed the eviction application and instructed the City of Cape Town to enter into good faith negotiations to purchase the land or to expropriate it if purchase negotiations failed. The property owners, the City of Cape Town and the Western Cape Provincial Minister of Human Settlements together appealed the judgment. 

The current negotiated order, made by the Supreme Court of Appeal (SCA), requires that the City of Cape Town “purchase the properties that are subject to the High Court’s order at a price to be determined in an arbitration between the City of Cape Town and the property owners”. In short, the agreement acknowledges the impracticality of relocating 60,000 people who have made Marikana informal settlement their home.  

Two-and-a-half decades after democracy, an estimated 2.9 to 3.6 million people live in informal settlements throughout the country as a direct result of a lack of affordable housing. The state’s inadequate response to the lack of housing in South Africa has meant that millions of poor people live in constant danger of eviction, in inhumane conditions, with limited or no access to water, sanitation and waste disposal services, or electricity. 

Many informal settlements are located on privately owned land. Municipalities cite their inability to encroach on, and the potential “wastage” of resources spent on developing infrastructure on, privately owned land as their justification for providing access to only temporary services. When asked about flush sanitation, a municipal official was quoted as saying that, “Marikana was established pursuant to an illegal land invasion of private land and, as such, the City can only legally provide temporary services”. 

As a result, the City of Cape Town has only provided residents in Marikana informal settlement with chemical toilets, “portaloos”, and communal standpipes. These temporary services are not suited to long-term use, but more than 60% of the informal settlements in the Western Cape have received “temporary” services for 10 years or more. 

By finally agreeing to purchase the Marikana land, the city will secure the tenure of tens of thousands of its residents.

The SCA order is a coup for the residents of Marikana, but only insofar as it is a public acknowledgement of the city’s ability to expropriate land. The democratic state’s ability to expropriate land for a housing programme in the public interest has never required an amendment to the Constitution or the passing of a new Expropriation Bill. 

The tools to address what President Cyril Ramaphosa has called the “original sin” already exist. Specifically, section 9(3)(a) of the Housing Act 107 of 1997 reads: “A municipality may by notice in the Provincial Gazette expropriate any land required by it for the purposes of housing development in terms of any national housing programme, if (i) it is unable to purchase the land on reasonable terms through negotiation with the owner thereof…”. However, the state has resisted the High Court instruction to expropriate land to provide secure tenure and services to informal settlement residents for almost three years. 

By finally agreeing to purchase the Marikana land, the city will secure the tenure of tens of thousands of its residents. The next step will be the effective implementation of Housing Code programmes such as the Upgrading of Informal Settlements Programme (UISP). The UISP provides for a process that allows municipalities to incrementally upgrade informal settlements to provide their residents with improved infrastructure and access to basic services. It prioritises upgrading informal settlements where they exist, or in situ, over relocation.

Moreover, the city’s successful implementation of the UISP and in situ upgrading of a settlement the size of Marikana, will encourage other municipalities to take positive action by securing the land on which other informal settlements lie.

Correcting the deliberate and intentional dispossession of black people in South Africa will require thoughtful effort. Government can negotiate the purchase of, or expropriate, land, which is an effective tool for land redistribution. It is a solution that will meet the needs of the millions of people who have been unable to access land or affordable housing in South Africa. The City of Cape Town is about to embark on an unprecedented task of expropriating land to provide housing for poor people. This is an undeniable victory. The hope is that the SCA order compels other municipalities to proactively bring South Africa closer to a reality in which poor people have access to adequate housing. DM/MC