Readers engaged in agriculture, and especially those who own land, will be aware of the Expropriation Bill which is now under consideration. Legislation cannot be separated from the issues of context and motive and it is for this reason, rather than any specific wording, that people sometimes get hot under the collar. In this particular case, a preliminary document – the Draft Policy on the Expropriation Bill - which set out the rationale for a new legislative framework in the sphere of expropriation is a litany of anti-apartheid rhetoric which, unfortunately, compromises the rationality of the proposed legislation. It is little wonder, therefore, that the agricultural community views the bill as a thinly-disguised legitimisation of property seizure by the state in order to hasten the pace of land reform. In political circles the slow pace of transfer, which is freely acknowledged, and sometimes deplored, by agricultural groups is attributed to unwilling sellers. In contrast, members of the agricultural sector have argued that it is departmental inefficiencies that have hampered progress and that there are more perfectly willing sellers than we think.

Nevertheless, we will shortly have a new piece of legislation. Expropriation is not by any means a new or radical process. Government has had the right to expropriate property for decades, but the old legislation, dating from 1975 is out of kilter with the country’s constitution and, the land reform issue aside, requires amendment in order to be constitutional. Well and good, but as I suggested earlier, this rationale has been relegated, by injudicious contextualisation, to a position of marginal importance. Property rights, as agreed in the pre-1994 negotiations and in the Constitution, have been categorised as “compromise”, the implication being that the ANC, left to its own devices, would not have entrenched these because of its commitment to “egalitarian values”.

In order to better appreciate the letter of the law, rather than the apparent intentions, it is better to avoid reading the Draft Policy. In essence, we have to recognise that “public purposes”, defined in the act of 1975, are very different now in 2008. Thus, there are more and different circumstances under which expropriation may, and should, be effected. We should also recognise that “property” is not just farmland, nor has it ever been associated with farmland alone. It is also not about confiscation, although this is the residual fear, I expect. The critical matter is the level of compensation. Now, it is not unknown for property owners to surreptitiously seek expropriation as a way of getting rather more for the property than might have been the case on the open market, nor is it unknown for those who wish to avoid expropriation to set too high a price for its accomplishment. In between there are the many who hope for a fair price, but fear that the new bill might deny them this.

The bill is not free of some significant concerns. One of them relates to the fact that the level of compensation will be influenced by national and regional Expropriation Advisory Boards which, unlike the high court judges that might be called upon to review the compensation, do not have to have “appropriate experience and expertise in the field of expropriation”. It is contentious, too, that the level of compensation when agreement cannot be reached is to be determined by the Minister in the first instance. This has been informed by an interpretation of the Constitution which is open to challenge. The Constitution declares, if there is no agreement, that the amount of compensation must be “decided or approved by a court of law”. Using an argument that the word “decided” is used conjunctively (rather than disjunctively), the architects of the bill have reasoned that the primary decision regarding compensation may, and will, be taken by the Minister. It seems to me that this is a case of the interpretation being made to suit the purpose and will result in a situation where the Minister, who clearly desires the expropriation, is the primary arbiter, having referred for guidance to unqualified, inexpert advisory boards. Let us hope that the bodies that raise objections do so on the basis of particular matters, such as the ones mentioned, rather than rail against expropriation by equating it to lawless confiscation.

Andrew Layman: PCB CEO

This article appeared in The Mercury on the 14 May 2008