Boiling point

Expropriation without compensation is coming. Read this carefully.

Yesterday, the President signed into law the Expropriation Act. The schedule for implementing this change is not known, but it is now inevitable.

The Act, which allows for the expropriation of any property, whether land, cash, moveable property, or corporate shares, without compensation. The justification for expropriation will be anything that is in the “public interest”. That means that just about anything can be confiscated for just about any reason.

But of course, we are expected to believe that the Constitution will save us. But the only constitutional limits against this are a) that it has to be rubber-stamped by a court, and b) that it is not allowed to be arbitrary.

However, arbitrariness is so slippery a word that it almost has no real meaning in this context, since any general principle, such as “public interest”, a public works project, or just “redress” (i.e., skin colour), can justifiable be considered a non-arbitrary principle.

Just think how many times you’ve seen the term “apartheid-era spatial planning” in the media - it is not just farms, but high-value properties in city centres that are at risk.

The constitution already provides that discrimination is legal, so long as it is “fair”, and fairness is defined precisely on the grounds of race in this country, and has been for some time, provided the race of the person being discriminated against is white.

Regarding the state’s interpretation of the Constitution in this regard, we actually have the official legal stance of the President’s official legal council regarding land reform, Advocate Tembeka Ngcukaitobi, currently busy with the ICC case against Israel:

The question under the Constitution is not whether expropriation without compensation is constitutionally permissible. It is. The question is when it is permissible to expropriate without compensation. In particular, when is it constitutionally permissible to expropriate land without compensation in order to advance land reform?

Later, Ngcukaitobi explains in greater specificity the circumstances in which land can be confiscated without compensation:

“(a) the land is abandoned or unused; (b) the land is held purely for speculative purposes; (c) the land is under-utilised and owned by public entities; or (d) the land is actively farmed by labour tenants in the absence of a title deed holder.”

The Act itself adds another condition: “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”, meaning that any budgetary estimate for development which exceeds the market value of the property can be used to deny compensation.

It also allows the national government to seize property from other spheres of government it deems not to be employing for its “core function”.

The Expropriation Act will empower the Minister to expropriate any property on behalf of any state entity.

The notion of abandonment is particularly concerning, because the loss of control due to land invasions has already been used to justify expropriation in several instances, though until now, the owners have been compensated.

From my research into land invasions for Sakeliga, as well as simply from conversations with people in ordinary life, I have learned that it is common for ANC cadres to arrange for land invasions, especially in the run-up to general elections, in order to curry favour, or to establish illicit rentiership.

Speculation is also a concerning development, because whether any landlord will be allowed to keep their property is now entirely (if you’ll excuse the wordplay) a matter of speculation.

The moment the expropriation is signed, the ownership is transferred to the state, which can immediately deny entry to the previous claimants. The victim will be given 40 days’ notice, and will be penalised for any failure to maintain the property during that time.

Most would assume, given that our courts are still more or less reasonable entities, that this cannot go too far, and that the likelihood is that most victims of the state would in some way be compensated.

And that is why the ANC has passed the Land Courts Act.

This Act of Parliament establishes a new court system explicitly for the streamlining of accelerated expropriation. It will be selected directly by the Presidency, and the JSC will act only in an advisory capacity.

It will have equal jurisdiction to the High Courts, leaving only the Supreme Court of Appeal and the Constitutional Court itself as a means of appeal.

But these laws establish that the land will be expropriated first, before any appeals process can be heard, meaning the the use of the courts for delay tactics is impossible.

The judges of this court will also be immune from all forms of prosecution or legal summons except for acts of domestic violence.

13. (1) Proceedings under this Act may be instituted by-

(a) the Commission;

(b) any person acting in their own interest;

(c) any person acting on behalf of another person who cannot act in their own name;

(d) any person acting as a member of, or in the interests of, a group or class of persons;

(e) any person acting in the public interest; or

(f) any association acting in the interests of its members.

This opens the way for anyone to launch proceedings to expropriate any piece of land for any purpose.

Witnesses and anyone who accompanies them to court are to be monetarily compensated.

And here’s the kicker - hearsay, and documents without providence have the same weight as any official document:

Admissibility of evidence

21. (1) The Court may, in the case of claims under the Restitution of Land Rights Act admit evidence, including oral evidence, which it considers relevant and cogent to the matter being heard by it, whether or not such evidence would be admissible in any other court of law.

(2) Without derogating from the generality of subsection (1), it is competent for any party before the Court to adduce-

(a) hearsay evidence regarding the circumstances surrounding the dispossession of a land right or rights and the rules governing the allocation and occupation of land within a claimant community at the time of such dispossession; and (b) expert evidence regarding the historical and anthropological facts relevant to any particular land claim.

(3) The Court must give such weight to any evidence adduced in terms of subsections (1) and (2) as it deems appropriate.

(4) Whenever a judgment, order or other record of the Court is required to be proved or inspected or referred to in any manner, a copy of such judgment, order or other record duly certified as such by the registrar of the Court under its seal is prima facie evidence thereof without proof of the authenticity of such registrar's signature.

Additionally, the Court will have the right to deny the submission of any evidence it wishes if it will speed up the process and reduce cost.

Reactions

The DA and VF+ have responded by saying they will challenge the Expropriation Act in court. There is little reason to believe they will have any grounds for success here.

The VF+ has called an early leadership competition, which will be held on the 22nd of February, likely to challenge the grounds on which they remain members of the GNU. If they manage to leave, they will become the only opposition party to the right of the state, and be in good stead to compete in upcoming local elections, laying the path for a potential secession, a policy they officially support.

Afriforum released a statement,

“calling on the Minister of Public Works and Infrastructure, Dean Macpherson, to refuse to be a co-signatory to this contentious law. If the Minister undersigns the Expropriation Act’s proclamation, he will allow Ramaphosa and the ANC to co-opt other parties in the Government of National Unity (GNU) to carry out the ANC’s destructive policies. This will make a complete mockery of the GNU.

In terms of Article 101(2) of the Constitution, a written decision by the President must be co-signed by a Minister if that decision affects a function assigned to the Minister. Without it, the promulgation of a law cannot take place.”

This will force the President to fire the Minister. Dean McPherson himself has committed to ignore this request, promising to implement the law in such a way as to protect property rights. How much sense this makes is up to the reader, though, charitably, one could assume that nothing will happen until the Land Courts Act is signed, and Dean McPherson is out of office.

By then, it is possible that the heat will have died down, and expropriation can continue without much fanfare.

It is worth noting in this context, that Ngcukaitobi’s legal opinion instructs not to expropriate foreign-owned property, only property owned by citizens of South Africa, due to the constraints of international law.

But there appears to be an effort to unseat McPherson, and he currently has a major corruption scandal hanging over his head, over allegedly meddling with a tender process, and for allegedly bribing a journalist. He rejects these claims and vows to resist.

Consequences

Without changing a letter of the Constitution, these two acts render any and all rights to private property effectively null.

What the timeframe is for their implementation remains to be seen, but it could take anything up to five years for the heat to reacha crescendo.

In the meantime, the ability to resist will depend on the will and daring of the Solidariteit Movement and its affiliates and constituents.

If by some miracle, the Constitutional Court balks at the extraordinary nature of this new legal framework, we may well delay these actions by another few years.

But ultimately, it is time to make many preparations. The Solidariteit Movement knows what they are.

The Cape will need to become more vigilant regarding land invasions and political intimidation, and will need to beef up neighbourhood security, and learn to be cautious, restrained, and attentive.

In short, we will all need to become, in some fashion, organised.