Someone once advised that the best way to assess legislation is to imagine how one would react if it had been enacted by the opposition. It is surely the point of law to direct people along a path that is good for the country, for society at large and for their own welfare and not to put on to the statute book some extract from a party political manifesto. I’m sure that there are few countries in the world where legislation has the ideal level of party political neutrality, but it is very difficult in South Africa, particularly, to encourage all people to view the legislation without the perception of one bias or another.

In addition, all legislation has a context which is critical in the framing of its objectives. In South Africa, the context is influenced very strongly by past inequities and iniquities. Thus, few laws that have been enacted since 1994 have not made reference in their preamble to the necessity for equality and redress. The effect of this, however, has been to heighten suspicion of the law and its motives on the part of some, albeit a minority, of the population. Consider, for example, the Municipal Property Rates Act. It was highly controversial for reasons that to my mind were quite obscure. So suspicious were its detractors that they circulated email messages trying to persuade people that it would spell ruination for property owners and farmers, especially. When I read the bill, with as much objectivity as I could muster I hope, I found it difficult to understand what the fuss was about. But it wasn’t the literal aspect of the draft that raised hackles; it was the suspicious belief that the government intended to fleece established property owners for the benefit of poorly-administered municipalities whose financial priorities were determined by greed. This was never the intention of the law, and, in fact, if one reads it carefully one will recognise that there are sufficient checks to constrain municipalities in their rates budgeting. Unfortunately, this spirit was not conveyed to all municipal implementers who in a number of instances have justified all the suspicions that were voiced at the time of adoption and before.

Perhaps the most controversial bill on the table at present is that which will regulate expropriation. In this, too, there is not nearly as much to fear as long as one reads the words objectively. Yes, it is true, access to the courts is restricted in the matter of determining market value and this is a fundamental weakness. It is unacceptable that the Minister should determine a market value, albeit after advice from an unqualified group of advisors, when the state is one of the interested parties. This must be a matter for the court. The term “public interest” might be better defined, but is a pretty neutral phrase except to those who interpret public interest and party political interest to be one and the same thing. The reason, I believe, that the agricultural community is so angry about this legislation is that the motivation for the bill was couched in political rhetoric which traced the inequities of land-ownership since the time of van Riebeeck. In terms of this, the motivation for the bill is clear: government must enact a law which enables it to seize land from farmers who oppose transformation by refusing to sell their land at a price that government is willing to pay. The timing of the legislation is also suggestive since it has been put on the table when government is lamenting the slow pace of land reform which, incidentally, appears to be attributable more to the inefficiencies of the bureaucracy than the unwillingness of farmers. It might have escaped the notice of many, that we already have an act which regulates expropriation but it is outdated and out of accord with the democratic constitution. There is nothing sinister in a government’s right to expropriate property as long as it occurs within a framework of fairness, transparency and regulation. Those who support the present government are not fearful of the consequences of enactment; those who do not trust the government fear the worst. I would like to think that government has integrity in this regard and that the drafters of the legislation, notwithstanding the wholesale politicisation of the preamble to the policy leading to the bill, were intent on putting up a reasonable and fair document. The question is: will those responsible for implementing the act prove that the fears of statutory theft were warranted?

Andrew Layman: PCB CEO

This article appeared in The Mercury on the 18 June 2008