Contested Expropriation Bill closer to becoming law, but don’t hold your breath

19 Mar 2024

The National Council of Provinces, with eight provinces for and the Western Cape against, has adopted the Expropriation Bill. However, the legislation must return to the National Assembly for changes to be approved. That means its 16-year legislative journey is unlikely to be completed before the May elections.

Time is against the National Assembly to properly process the largely technical changes the National Council of Provinces (NCOP) made to the Expropriation Bill and then to bring the legislation for a vote. Only five working days remain on the parliamentary calendar before the House rises on 28 March ahead of the elections.

If it runs out of time, the option of reconvening the National Assembly remains, even if MPs are on the elections campaign trail, particularly if a fully virtual sitting had to be called. Once the House approves, the Expropriation Bill goes straight to the presidential in-tray.

But politically it’s an awkward pickle. If the National Assembly fails to finalise the Expropriation Bill, it lapses come the 29 May elections. It would be up to the post-poll incoming MPs to revive the legislation and finalise it.

Read more in Daily Maverick: Putting the Expropriation Bill into perspective – it’s not the ugly ogre some make it out to be

DA NCOP delegate Tim Brauteseth said lawyers would be briefed to demand that President Cyril Ramaphosa return the Expropriation Bill to Parliament for reconsideration due to constitutional concerns.

“The DA will continue to fight this archaic Bill to the very end in order to protect the property rights of South Africans... (T)he DA will not allow them to pass dangerous legislation for bad faith electioneering,” he said in a statement.

Earlier, Brauteseth pointed out that getting the NCOP’s provincial mandates was rushed – particularly in Gauteng, Eastern Cape and Limpopo – to get the minimum support of six out of nine provinces to pass the Expropriation Bill.

This raised procedural issues that could provide grounds for court action.

In contrast, labour federation Cosatu welcomed the NCOP’s approval and called on Ramaphosa to ignore opposition from “hysterical fringe right-wing elements” and sign the Expropriation Bill into law.

“(The Bill) will be a welcome step towards honouring the ANC’s 2019 elections manifesto commitment to accelerate government’s efforts to ensure all South Africans have equal access to land, water and other natural resources,” said Cosatu in a statement on Tuesday.

For the ANC, having the expropriation legislation on the statute books would be a coup and undoubtedly used on the campaign trail. Its manifesto under priority two on building industries for an inclusive economy states the ANC will:

“More effectively use provisions in the Constitution and expropriation legislation to accelerate land reform and redistribution to reduce asset inequality and protect security of tenure, improve food security and agricultural production, promote rural and urban development and enable greater access to housing.”

False starts

It’s been a 16-year journey to get here.

The governing party’s efforts on the expropriation legislation started – and failed – for the first time in 2008 when the draft law, which ditched the “willing seller, willing buyer” principle, was withdrawn on the back of the ANC conference resolutions in Polokwane in 2007.

Parliament’s legal advisers indicated that banning recourse to the courts would be unconstitutional; instead of amending the Bill, it was withdrawn.

It took until March 2015 for a revised expropriation Bill to come to Parliament. It was passed in May 2016, but was returned to Parliament by then president Jacob Zuma in February 2017 because of concerns over public participation.

By then the next version of the Bill was becoming ensnared – and stalled in Parliament – in the jockeying before the ANC’s mid-year policy conference and then the December 2017 national conference.

The so-called radical economic transformation grouping was pushing for expropriation without compensation as a mechanism to return land to black South Africans who lost their rights with the 1913 Natives Land Act.

At the eleventh hour, the ANC’s 2017 national conference adopted compensationless expropriation without endangering food security, agriculture and other economic activity.

Fast-forward to February 2018. The ANC joined the EFF motion to establish a parliamentary review into amending Section 25 of the Constitution to ensure compensationless expropriation was possible. A year earlier, the ANC had rejected a similar EFF motion.

That constitutional review unfolded with unprecedented countrywide public hearings, where expropriation without compensation emerged as shorthand for redress and social justice. The expropriation draft law before Parliament was officially withdrawn to make way for other legislation.

But by late 2021, the toenadering of the ANC and EFF faltered as the EFF continued to push for state ownership of all land. The political fallout meant the constitutional amendment failed to meet the required two-thirds majority in the House on 7 December 2021.

Bill in NA’s court

The current version of the expropriation legislation was introduced in Parliament in October 2020, allowing “nil compensation” in the expropriation of, among other, state land, abandoned land or land held for speculation.

The Bill was adopted in the National Assembly on 28 September 2022, with objections by the DA, EFF, IFP, Freedom Front Plus and ACDP.

Then the NCOP began its processes. That was done by December 2023, but the NCOP committee on transport, public service and administration, public works and infrastructure decided to delay the finalising of provincial mandates to February 2024.

It took longer. Two weeks later than the initially scheduled vote, the NCOP approved the Expropriation Bill on Tuesday.

What happens next is up to the National Assembly. DM

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False starts

Bill in NA’s court