Expropriation without compensation: Committee discusses draft bill to amend Section 25

Chairperson of the ad hoc committee tasked with amending Section 25 of the Constitution, Mathole Motshekga. (Jan Gerber, News24)
Chairperson of the ad hoc committee tasked with amending Section 25 of the Constitution, Mathole Motshekga. (Jan Gerber, News24)

MPs are considering including the specific circumstances under which land can be expropriated without compensation in the amendment to Section 25 of the Constitution.

Parliament's legal services presented the draft bill to amend section 25 to the ad hoc committee charged with this task on Tuesday.

The draft bill includes a preamble, which will not be included in the Constitution, should the bill be adopted. This preamble provides the context for the bill, explaining that expropriation without compensation is a legitimate option for land reform to address the historic wrongs and ensure equitable access to land and further empower the majority of South Africans.

Subsection 2 of the Constitution's section 25 currently reads: "Property may be expropriated only in terms of a law of general application; for a public purpose or in the public interest; and subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court."

The draft bill adds the following sentence to that: "Provided that in accordance with subsection [3A] a court may, where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil."

The draft bill also includes the following as subsection (3A): "National legislation must, subject to subsections [2] and [3], set out specific circumstances where a court may determine that the amount of compensation is nil."

FF Plus MP Corné Mulder and DA MPs Glynnis Breytenbach and Werner Horn suggested the specific circumstances should be included.

Horn said if the circumstances were not included, it could bring the amendment's constitutionality in question.

Mulder said if the circumstances were included in the Constitution, it would provide some certainty.

ANC MP Regina Lesoma said their arguments sounded convincing but added the Constitution could not be over-prescriptive.

The committee decided to discuss the matter further on Thursday.

The DA and Mulder were concerned they would not have the opportunity to consult their caucuses on the draft bill, as Parliament rises on Wednesday and there would not be another caucus meeting. They are usually held on Thursday mornings.

Committee chairperson Mathole Motshekga also decided not to extend the public participation period for the bill after receiving a request from AgriSA.

The bill will be gazetted later this month, which opens the public participation process.

The committee heard National Assembly rules made provision for the publication of a bill at least 30 days before it was introduced. The committee previously adopted its programme in which it agreed the bill would be published in the Government Gazette this month, which opens it up for public participation.

"Due to the festive season, the committee agreed the bill will be published a second time early in January 2020 for public comment after which the public will have about a further three weeks for input," Motshekga said, according to a statement released after the meeting.

Motshekga emphasised this process was not starting afresh and its workflows from that of the Fifth Parliament's constitutional review committee.

"We would like to encourage South Africans to participate in the public participation process," he said, according to the statement.

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