The Expropriation Bill is set to be enacted soon. Under which circumstances may expropriation without compensation be permitted?
It is a well known fact that not only does gardening benefit the soul, but it might just be your saving grace when you think you run the risk of being expropriated of your land without compensation.
Expropriation of land without compensation has been the focus of debate and disagreement for well over 15 years. The Bill, which allows for expropriation of land without compensation is finally set to become law in South Africa and ‘flower' into reality.
The Expropriation Bill, which underlines expropriation of land without compensation, was passed in the National Assembly and transmitted to the National Council of Provinces for concurrence last year and will likely be signed into law by the President soon.
On 6 March 2023 the period provided for the public to submit their comments to the National Council of Provinces in respect of the Expropriation Bill (a proposed Act, yet to be enacted) will end.
Many share the view that the Bill would lead to land grabs by the State whereas others are of the view that the Bill lacks the power necessary to effect land reform successfully.
However, when asked, members of the public generally do not know which property is actually set to be expropriated without compensation in terms of the Bill.
Section 12(3) of the Bill sets out the circumstances under which land may be expropriated for “nil compensation”.
First and foremost, the Bill states that land may only be expropriated where it is just and equitable, secondly if it is done in the public interest and all relevant circumstances are taken into consideration.
The Bill introduces five circumstances which may serve as a guideline when nil compensation may be just and equitable, these are: –
- Where land is not used and the owner's main purpose is not to develop the land or use it to generate an income, but to benefit from appreciation of its market value;
- Where an organ of state holds land that is not used for its core functions and is not reasonably likely to require the land for its future activities in such regard and the organ of state acquired the land for no consideration;
- Land where the owner has abandoned the land by failing to exercise control over it;
- 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 such land; and
- When the nature or condition of the property poses a health, safety or physical risk to persons or other property.
Based on the current criteria, the Bill makes provision for the land of any owner, whether a member of the public or organ of State, to be expropriated without compensation in cases where they have evidently abandoned their land or do not use their land for its main purpose or to generate an income.
Many political parties and stakeholders have done their groundwork and are ‘sharpening their hedge clippers' in order to challenge the constitutionality of the Bill once signed and enacted. Only time will tell whether the Courts will trim back certain provision and make a finding of whether the Act is indeed “Grondwetlik”.
Perhaps it is time to remind your neighbours to put their ‘gardens' to use.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.