Easier pickings

2008-07-04 00:00

While public opposition to the Expropriation Bill has understandably focused on the threat it poses to constitutionally enshrined rights and to food security, insufficient attention has been paid to the way in which this bill facilitates the abuse of power by state functionaries. It does nothing to address the fundamental reasons for the failure of the land restitution process, but may well benefit corrupt government functionaries and civil servants at the expense of those who deserve to gain from land restitution. If implemented as legislation it may even fuel civil strife, including through encouraging land invasions.

This bill allows expropriation not only in the public interest but also for “public purpose” defined as including “any purpose connected with the administration of provision of any law by an organ of state”. This vague definition allows for virtually any pretext to be found for expropriating.

The Minister of Public Works is among those deemed an expropriating authority and her powers are near absolute. She may decide to appoint advisory boards but is given absolute discretion in the composition and size of these boards. There is neither democracy nor transparency in the functioning of these boards and their powers are frightening, especially as they relate to gaining access to private property. Of even greater concern is that a failure to comply with their instructions will constitute an offence. The minister may also delegate most powers relating to expropriation to functionaries of the level of deputy director-general or those at the level of director.

In addition to the minister there are other expropriating authorities which can be “any organ of state in terms of Section 239 of the Constitution”. This definition is extremely wide, and includes “any department of state or administration in the national, provincial or local sphere of government‚ as well as sundry other functionaries and institutions”. It is clear that it is envisaged that members of provincial executives and municipalities are seen as among those taking decisions about expropriation. The scope for abusing the powers accorded by the bill is thus greatly expanded.

Another alarming provision of this bill is that it allows the minister to expropriate on behalf of juristic persons, subject to such persons covering costs relating to the acquisition of such property. A not-for-profit organisation (NPO) is given as an example of a juristic person, but such a person would also include a variety of other legally constituted private entities such as trusts and traditional authority structures.

The powers accorded to expropriating authorities are near absolute, subject only to “review” by the court and lacking as this bill does any checks and balances on these powers, the tendency for absolute power to corrupt ab-solutely is a serious threat. Given the conduct of some members of the government and the civil service, there is good reason to fear the worst.

Consider, for example, the following hypothetical but perfectly plausible scenario.

An employee of the Department of Land Affairs (where, according to an auditor-general report, 216 employees hold 314 directorships), sets his sights on a valuable piece of agricultural land and encourages landless people to invade it. He runs an NPO through a relative who is a front, and that relative approaches the minister under the pretext of purchasing land for co-operative farming. The land would probably have depreciated because of the invasions. Having acquired the land, the NPO might then proceed to levy charges against all those living on it, or even force them off it and resell it at a higher price — people are driven off land all the time, despite existing legislation, and there is nothing to stop those acquiring expropriated land from reselling it at a higher price.

This scenario raises the crucial question about who exactly is likely to benefit from this legislation. Poor people do not have the money to purchase land through juristic persons, and nor are they likely to be able to engage successfully with bureaucracies without assistance. The court battles which will arise if this bill becomes law are unlikely to involve those most in need of land, since there are virtually no legal services for poor people.

The inescapable conclusion is that this legislation has been hastily thrown together in a desperate attempt to circumvent existing legislation about land restitution and reform.

Existing legislation is perfectly adequate but it has been very badly administered, one of the reasons being that the Department of Land Affairs is extremely short of competent staff and grossly unprofessional conduct goes unsanctioned by management. The Expropriation Bill puts the cart before the horse insofar as land redistribution is concerned.

Over the past few years landowners who have insisted on seeing evidence of the validation of claims before agreeing to sell have been told that the Land Claims Commission — which is unable to validate many of the claims because they are totally lacking in historical validity — will simply expropriate. If this legislation is passed, the commission will be able to carry out these threats, with potentially disastrous consequences for human rights, and for the stability of the country

If passed into law, this bill it will raise expectations and may fuel land invasions as people stake claims to land they may have no historical right to. Where such invasions have taken place already the agricultural potential of the land has suffered and owners have been attacked. Given the intense emotion surrounding issues of land, it is possible that arbitrary expropriation will fuel determination on the part of fringe right-wing elements to resist at all costs, with extremely serious implications for stability — and for race relations.

This legislation must be rejected but it must be replaced by a mechanism for redressing past wrongs and ensuring an equitable distribution of land based on broad consultation and consensus of representative groups of all South Africans.

If Parliament presses ahead and passes it without reformulating land policy — and without cleaning up the inefficiency and corruption in the civil service — it will be inviting increasing instability, and possibly anarchy, in rural areas.

• This is a summary of a more detailed submission made to the parliamentary committee inviting comment on the Expropriation Bill by the cut-off date on May 16. This bill seems to have been put together very hastily and insufficient time was given for public comment. The full submission is available on request.

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