Why South Africa’s land expropriation won’t be like Zimbabwe

Government’s draft bill on land expropriation without compensation will not necessarily fast-track land reform in the country – and could lead to further litigation and contestation in the country, says Bulelwa Mabasa, a member of the president’s Land Reform Advisory Panel.

Mabasa – who is also a director and head of the Land Reform Restitution & Tenure practice at law firm Werksmans – told 702 that the draft bill states that the ultimate decision as to whether compensation will be paid still lies with the country’s courts.

She added that land expropriation without compensation was only one of a number of land reform tools open to government, despite receiving the ‘lion’s share’ of media coverage.

“Expropriation has always been with us and has always been used for public purposes such as the building of roads and schools. The only difference now is that it has to be brought in accordance with the Constitution.

“The Constitution tells us that land reform as a programme is something that is in the public interest and that expropriation, which is traditionally used for public purpose projects, could now be used for purposes of land reform.”

Mabasa said that the new bill introduces a balance of power and additional scrutiny by the country’s courts. Expropriation without compensation as a concept in South Africa is not akin to nationalisation, she said.

“What is on the table here is not the state is going to nationalise all land and have all control of the land – quite contrary to what happened in the land reform programme in Zimbabwe.”

Instead, Mabasa said that notice will be given to landowners in advance and the state has to give reasons around:

• Why the government needs this particular land;
• What kind of work has gone into it;
• What is the purpose of the expropriation?

The state also has to give a landowner opportunity to object to the expropriation, as well as the amount of compensation, she said.

“So it is not to say that every expropriation will attract a zero compensation – these circumstances are spelt out in the legislation which does give clarity to people looking to investors in the country.”

When can land be expropriated? 

Government has published an updated draft of its land expropriation bill this weekend ahead of its official introduction to parliament.

One of the key focuses of the bill are the circumstances when land may be expropriated without compensation. This includes:

• Where the land is not being used and the owner’s main purpose is not to develop the land or use it to generate income, but to benefit from an appreciation of its market value;

• Where an organ of state holds land that it is not using for its core functions and is not reasonably likely to require the land for its future activities in that regard, and the organ of state acquired the land for no consideration;

• Where an owner has abandoned the land by failing to exercise control over it – notwithstanding registration of ownership in terms of the Deeds Registries Act;

• 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;

• When the nature or condition of the property poses a health, safety or physical risk to persons or other property.

In an attached explanatory statement, government said that expropriation without compensation is not a ‘silver bullet’, but only one acquisition mechanism that in appropriate cases will enable land reform and redress.

Government said that the bill also brings certainty to South Africans and investors because it “clearly outlines” how expropriation can be done and on what basis. This legislative certainty is critical as the country rebuilds its economy and invests in communities.