You have probably already heard that Parliament has yesterday voted against the proposed amendment to our Constitution which would have confirmed the government’s right to expropriate without compensation. The votes were 204 in favour of the amendment and 145 against. The requisite two thirds majority was therefore not achieved, and the proposed amendment has accordingly failed. The Constitution will therefore remain unchanged. This is good news.
But where does this leave us? Well exactly where we started – just 3 years down the line with lots of money wasted. Let’s recap:
- On 21 December 2018 a draft Expropriation Bill was published for comment. This was intended to become a new Expropriation Act that was in line with our new Constitution.
- Substantial public participation was then engaged in, and the government also commissioned reports and appointed a committee to make recommendations.
- Late in 2019 a draft Bill was published for comment on amending the Constitution, which would expressly allow a Court to authorize expropriation without compensation.
- On 9 October 2020 a second (and slightly amended) draft Expropriation Bill was published again, for comment. The most notable difference between this draft and the previous one, was the proposed types of land that would be earmarked for expropriation without compensation.
In our opinion the Constitution has, since 1994, allowed for expropriation without compensation in limited circumstances and the pending Expropriation Bill of 2020 attempts to give effect to this. This piece of legislation has been running parallel with the constitutional amendment and we expect that the government will now push this piece of legislation through Parliament with greater urgency. The ANC will only need a simple majority to pass this law as it does not require a constitutional amendment.
What do we have to fear from this? The answer is not much! Our new Constitution has since day 1 contemplated expropriation for minimal or zero compensation in limited circumstances. Furthermore, the constitutional requirement that land may only be expropriated for a proper reason, and in terms of a law that applies equally to everyone in South Africa remains. In addition, property can only be expropriated for a public purpose or in the public interest and all relevant circumstances need to be taken into consideration in determining the issue of compensation. The amount of compensation to be paid also needs to balance the public interest and the interests of those who are affected by the expropriation.
Let’s hope that this latest development put’s paid to further attempts to water down the protection of private property rights as enshrined in our Constitution.
For further commentary on the proposed Expropriation Bill of 2020 click here.