The Government is embarking on significant new initiatives to
advance land reform.
This includes the new Expropriation Bill which was released for
public comment at the end of March, the Restitution of Land Rights
Amendment Bill which was released for comment on 23 May 2013 and a
new Land Tenure Bill which is currently being circulated within
Government departments and which has not yet been released.
The new Expropriation Bill follows a number of earlier Bills
which have been prepared by the Department of Public Works, the
last of which was introduced in the National Assembly in mid-2008
and then subsequently withdrawn. The old Bill was unconstitutional
because it attempted to oust the jurisdiction of the courts and
provided that the State could acquire property at a discount if the
purpose was to redress former inequalities.
The new Expropriation Bill, once adopted, will be a key tool in
driving reform initiatives. It will allow the State to expropriate
property to achieve land reform and access to natural
What is to change if the new Expropriation Bill is brought into
The Bill substantially widens the definition of property for
which compensation must be paid. Under the existing Expropriation
Act, compensation is paid only for the expropriation of registered
rights. Property will now include all rights in property whether
registered or not and property is not limited to land.
The second major change is that the Bill allows the
expropriation of property, not only for a public purpose but also
for the public interest.
Public Interest is defined to include the State's commitment
to land reform and to bring about equitable access to all South
Africa's natural resources by previously disadvantaged
The State will be armed with the legal ammunition to achieve
land and natural resource reform and redistribution without having
to adhere to the willing buyer / willing seller principle.
The final significant change is that the factors which need to
be taken into account in determining compensation have been widened
from those set out in the current Expropriation Act. Compensation
must be just and equitable after balancing the public interest and
the interest of the owner of the property having regard to all
relevant circumstances. Those circumstances include the current use
of the property, the history of the acquisition, the market value
of the property, the extent of State investment in the property and
the purpose of the expropriation.
In most cases, a just and equitable compensation will be
equivalent to market value. The State has abandoned the argument
that the Constitution allows the State to acquire property at less
than market value if the purpose is to redress former
The Restitution of Land Rights Amendment Bill re-opens the land
claim process by extending the date for the lodgment of land claims
until 31 December 2018. This will allow new land claims to be
lodged which were not lodged prior to the earlier cut-off date of
31 December 1998.
There was talk about the Act being amended to allow land claims
for those who were dispossessed before 1913. It was not possible
for the Bill to be amended to include dispossessions prior to 1913
because Section 25(7) of the Constitution restricts the land
restitution programme to dispossessions that took place after 19
The State has indicated that dispossessions of land that took
place before 19 June 1913 will be dealt with separately.
A new feature to the Bill is that when allowing restoration of a
right in land, the court must now take into account the ability of
the claimant to use the land productively.
We are aware that a draft Bill is being circulated within
Government departments providing for a new Act on rural land
tenure. This will apply to the land set aside (during the apartheid
era) for the occupation of blacks. This Bill will fill the gap
created by the Communal Land Rights Act which was passed by
Parliament but was subsequently found to be unconstitutional.
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