I encourage all South Africans to take a look at the following three Bills in the policy pipeline at the time of this writing:
1) The Restitution of Land Rights Amendment Bill of 2013
2) The Property Valuation Bill of 2013
3) The Expropriation Bill of 2013
All three of the above Bills can be viewed online.
While no-one would deny that some form of restitution is required in order to make right for the past evil of Apartheid, the intended strategy (as evident from the text in the above three Bills currently before Parliament), is one which will undoubtedly place every South African in a much worse condition than before.
A lot could be written in analyzing all the finer points of the above three Bills before Parliament and they raise some serious concerns on many different levels. However, for me, the following 3 aspects of the Bills, considered together, are particularly alarming:
1) The three Bills will empower the State to expropriate not only farming land (as the media is want to report) but other land aswell. If this was not shocking enough, the Valuation Bill defines ‘property’ as including ‘immovable property….rights in….such property’ and ‘any movable property which is contemplated to be acquired with the relevant immovable property.’ This opens the gate to the expropriation of businesses other than farms, operating as going concerns, on land targeted for restitution. The Restitution of Land Rights Amendment Bill of 2013 likewise does not require ‘land’ to be only farming land (although the Bill itself applies solely to land).
Furthermore, the Expropriation Bill of 2013 defines ‘property’ as ‘not limited to land’ and as ‘including rights in and to such property’. Such a broad definition includes private assets of virtually every kind.
The view appears to be that ALL property, including mines, shopping centers, private and farming land, is potentially “ill-gotten gains” that could legally be identified for expropriation.
2) There is no legal requirement to compensate property owners at market value.
In terms of the Property Valuation Bill, the value of land intended for expropriation will be determined by a state official, called the “Valuer General”. The office of Valuer General has the sole power to decide the value of property marked out for expropriation. Although the Valuer General is accountable to the minister, the office of Valuer General ‘must be appointed by the minister’. Both the minister and the office of Valuer General are empowered to set the value of the property lower than market value. Market value is only a starting point in determining the value of land identified for expropriation. The minister is empowered to make regulations, which set ‘the criteria for the determination of the value of property’.
An ‘expropriating authority’ may take ownership and possession of property by notice to the owner and furthermore that ‘expropriating authority’ is empowered to set a date for the payment of compensation that is later than the date on which ownership and possession pass to the State.
The more one reads, the more the 3 Bills begin looking like the State giving itself the power to “legally” steal from its citizens. It is bizarre and disturbing that such a brazen step could even be attempted as it serves to totally undermine the Constitution and the due process of law.
(Please note that the current Expropriation Act of 1975 requires that ‘not less than 80% of the compensation due must be paid to the expropriated owner when the State takes possession of the property, with interest on the outstanding balance. The Expropriation Act of 1975 also states that compensation must be equal to market value and must include damages for loss suffered, plus a small further amount calculated as a percentage. The new Expropriation Bill removes these just and reasonable safeguards against the State’s abuse of their power. This would apply not only to the Government currently in power but any successive government could just walk into this legal environment).
3) Thirdly, and for me, the most worrisome feature in the above three measures under brief consideration, is the manifest attempt by the State to oust the jurisdiction of the courts (as far as is possible without being declared unconstitutional).
Note the following points:
In terms of the Valuation Bill, an owner may dispute the valuation decided by the Valuer General. However, ‘that dispute may not be used to delay, postpone or in any other way frustrate’ the expropriation of his property. Thus the State may proceed with an expropriation regardless of any dispute, which may exist regarding the amount of compensation that is due.
Objections against valuations must commence at the office of the Valuer General. Should the property owner remain dissatisfied with the Valuer General’s revised valuation, the property owner may still not seek help from the courts but must instead seek review from a valuation review committee (appointed by the minister on terms decided by the minister). The valuation review committee has no obligation to provide written reasons for its decision. All ‘internal procedures’ may be determined by the committee alone and kept behind closed doors.
The cherry on the cake must be the following provision:
In terms of the Valuation Bill, ‘a decision of the review committee is final and binding on the parties and subject only to review by a court of law.’
(There is a difference between ‘appeal’ and ‘review’ procedures. In the case of review, the court is only authorized to enquire into and adjudicate on procedural fairness. The court is not empowered to consider the actual merits of the case. The Valuation Bill of 2013, as it stands, gives the courts only the power of review and not the power to hear any appeal against the merits of the valuer general’s decision regarding the amount of compensation to be paid.)
By way of illustration, should the above Bills be made law, consider the following scenario of a property owner whose ‘property’ (as defined) has been identified for expropriation:
A business owner running a business profitably as a going concern is ‘offered’ less than market value for his / her business and land on which it operates.
The business owner disputes the valuation but is nevertheless ‘legally dispossessed of his / her business in terms of the legislation.
The business owner, now without a business, then has to follow a lengthy review process with the office of the Valuer General.
Court review is probably now beyond the reach of such a person. The review procedure by the committee has been lengthy, the business owner no longer has possession of his / her land or business and legal proceedings are costly enough as it is.
The expropriated owner is now under extreme pressure to accept the State’s offer of less than market value.
Should these Bills be made law, the effect on the South African economy will be disastrous. No-one wants to invest in a country where property rights are on such shaky ground, to say the least.
The security of property rights is foundational to any healthy economic system. Should these Bills get through to the Statute book, they will be counter-productive and ultimately hurt those they are intended to help. All South Africans will be affected.
This must not happen on our watch!
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