Expropriation Bill: Parliamentary Legal Advisor & State Law Advisor on proposed amendments

Meeting report

The Chairperson welcomed the Members of the Committee and all of those in attendance at the meeting. The Committee was meeting today to continue with its discussions and deliberations on the Expropriation Bill. The Parliamentary Legal Services was going to lead the Committee today. The Bill was not yet a final document. All members were free to raise their views on any clause that they felt was not captured the way that it should be captured. It needed to be remembered that this Bill was very important for the transformation of the country and for correcting what was wrongly done by the previous Government. This Bill was to repeal the Expropriation Act of 1975. The Committee dare not fail South Africans as all South Africans were watching the Committee deal with this Bill. It was the start of Youth Month. The Committee dare not fail the youth of 1976, which were adults today, and looked to the Government in providing the basic services through this Expropriation Bill

Presentation by the Parliamentary Legal Adviser and State Law Adviser on the A-List of the Expropriation Bill [B23-2020]

Ms Phumelele Ngema, Parliamentary Legal Advisor and Adv Shaun van Breda, Senior State Law Advisor, Office of the Chief State Law Adviser, briefed the Committee on the A-List of the Expropriation Bill. The A-List contained all of the proposed amendments to the Expropriation Bill. The Committee considered each of the amendments individually and deliberated on them.  

Clause 1

Ms Ngema took the Committee through the A-List starting with the amendments to clause 1.

Ms S Graham (DA) discussed point 9, the definition of ‘expropriation’. She was worried that it did not cover temporary expropriation. She knew that it was addressed later on, where there was a reference to including temporary expropriation. She was not sure that it should not be included under the definition of ‘expropriation’. The curtailment of rights by the State was not fully addressed under the definition of ‘expropriation’. It spoke of the acquisition of property for a public purpose or in the public interest, but it did not speak to where there was a curtailment of rights due to the use of the property by an organ of state. She was not sure if that could try to be included in the definition so that expropriation was not just an acquisition of property but also could impede the right of the usage of the property by the owner. For example, during a temporary expropriation.

She discussed point 10, the definition of ‘holder of a right’. While she understood the purpose of amending that definition, her concern was that it was not clear. She had read that several times trying to figure out what it was trying to say. Definitions were supposed to provide clarity on items within the Bill and those definitions should provide clarity and not confuse further. She was sure that there was a better way to word that definition to make it more understandable.

She discussed point 12. While she looked at all the amendments and recommendations that had been made, she could not work out how that definition would read. It was the definition of ‘owner’. She inserted the words and could not understand what it was saying. The Committee needed clarity on that.

She discussed point 14, the definition of ‘public purpose’. That was still slightly vague. She was not sure if the vagueness of that definition could be addressed.

She discussed point 15, the definition of ‘service’. She was not sure if it was necessary to put that definition in. It was an arbitrary definition. Service was dealt with extensively in another clause and she was not sure that a definition needed to be put in.

She discussed point 16, the definition of ‘this Act’. The new definition referenced sections 27 and 28. When sections were referenced later on in the Act the legal advisors needed to make sure that they were referencing the correct sections.

She discussed point 18, the definition of ‘valuer’. She was curious if ‘suitably qualified’ was a sufficient, definitive term. Although, she was happy with the definition as it stood.

Mr E Mathebula (ANC) discussed point 1. He noted that the ANC did not agree with the counteroffer. The ANC agreed with the definition already in the Bill as compared to the one in the A-List.

He discussed point 5. There was an omission that was made on the A-List. What informed the change in this?  He hoped that Ms Ngema could give the reason to the Committee. The government needed to do things as fast as it possibly could without prolonging the processes. The ANC disagreed with the counteroffer that was made.

He discussed point 6. He did not understand the rationale. He did not understand the removal of part of this section. What informed that? Why was there removal of part of this section?

He discussed point 9. He highlighted the implication of the new definition on rural areas. The Department of Agriculture, Land Reform and Rural Development would be introducing legislation that deals with communal land tenure rights. The exclusion of an unregistered right owner could be a bit problematic. For instance, whereby an unregistered owner was also a holder of a right. He indicated that except for what he had raised matters on, the ANC fully agreed with what the adviser advised the Committee. Advice could be accepted or rejected.

Ms L Shabalala (ANC) aligned herself with the contribution of Mr Mathebula. She did not wish for the Committee to amend for the sake of amending. This should only be done if any section was not aligned with the Constitution or unless there was a section that was not in the public interest or for a public purpose. Those were the guiding principles. The conceptualisation of this Bill had taken a lot of time. It had taken brilliant minds to craft this Bill. South Africa was a very litigious country. Counteroffers would prolong the process by years and years. This would affect the five years that were being mentioned. That meant that the same property needed to be given back to the original owner. Government should not shoot itself in the foot. The Committee should not make changes that confuse the ordinary person in society. People want the Bill to be done with and to be actioned.

Ms L Mjobo (ANC) aligned herself with Mr Mathebula and Ms Shabalala. The Committee should not amend just for the sake of amending.

The Chairperson discussed point 7. It said that the definition of ‘expropriated holder’ should be omitted. What was the rationale behind the removal of that?

Ms Ngema responded to the questions about ‘owner’ and the impact of what ‘owner’ would be like in the final Bill. The ‘owner’ would not change that much. She discussed the rights of an unregistered owner. There would not be much changed in the definition, only in the ‘consequentials’ that appeared in the document. There was also a principle that the members had pointed out. When definitions were being presented that were relevant and meant to explain the concepts that were used in the Bill, ordinarily the ordinary definition from the dictionary and the standing meaning was the one that was taken on board. However, when definitions were presented for purposes of the Act, and to be restricted to the Act, which was when a definition should be presented. Therefore, the definitions done here were done when there was a distinction that needed to be made from the ordinary meaning and needed to be captured. It was only to clarify for purposes of the Act in light of the ordinary meaning of owner, which would still stand. There were owners that owned things but there was no law for their ownership to be registered. They were still covered within the Bill’s definition. They would not be excluded. That was the purpose of the proposal. Not too much change would be brought into the definition of ‘owner’, as the Department had previously proposed confining the definition of the owner.

She responded to the question of the Chairperson on why the definition of ‘expropriated holder’ was removed. The original definition read as, ‘a holder of an unregistered right in property, which right has been expropriated by notice in terms of section 8(1)’. What the legal team had done was to ensure that all of these, in the content, was very clear. For example, in the definitions, they brought in the ‘mortgagee’. There was an issue because previously they were not involved. The legal team was trying to bring in the clarity that was necessary when it did the revised presentation and provisions on the definition of ‘owner’ and the definition of ‘expropriated holder’ and the definition of ‘holder of a right’. These were now consequential changes arising from the proposals that were raised. The legal team took on board the directives as well as the opinions of the members that definitions should not be made just for the sake of making definitions. What was in the Bill currently should not be changed just for the sake of changing it.

She discussed the issue of temporary expropriation. Temporary expropriation was dealt with and explained as part of clause 22, the urgent expropriation. She noted that the question was about the curtailment of rights that may be there and that the proposed definitions did not cater and did not speak to that. There was a principle that more content should not be brought into the definitions. The content must appear within the provisions and not so much in the definitions.  The curtailment of rights would appear in the gist of the provision wherever the question was raised or wherever the concept was addressed. In light of curtailing rights, the content itself would explain as to what happened, who would be affected, and how they would be affected.

She discussed the ‘holder of a right’ not being clear. These definitions must not be read in isolation. She picked up there were many contentions with regard to the counteroffer. The legal team accepted the comments. Once the provision that related to ‘counteroffer’ was read and what was proposed in light of the process, members could be right that it was not necessary to define ‘counteroffer’. Or to deal with it in the manner in which ‘claimant’ was indicating. She agreed that litigation was occurring frequently in the country. The legal team would take on board what the members had said in light of the proposal. This document was still a draft and that was why members were deliberating on it.

Adv van Breda responded to the concern and question of clarity on the definition of ‘ownership’. The Bill was trying to express a clear distinction between ‘holder of a right’ and ‘owner’. As previously discussed in the Committee deliberations, there were owners whose ownership was not registered. They were holders of rights. In the Bill, a ‘holder of a right’ was defined as ‘a holder of an unregistered right, excluding owners’. Throughout the Bill, ‘holders of rights’ and ‘owners’ were referred to. The legal team did not want there to be any confusion between the two terms. There needed to be a clear distinction. ‘Owner’ was now being amended to include ownership that was not registered. That would include ownership under common law as well as customary law. That was the rationale for the amendment to ‘owner’.

He discussed the definition of ‘expropriation’, he was in agreement with Ms Ngema. An urgent expropriation, as provided for in clause 22, was a provision for temporary use. The legal team could take that under advisement as to whether the definition of ‘expropriation’ should be amended. That would be taken into consideration.

Ms Shabalala appreciated the clarity given by the legal team. She aligned herself with contributions. Under the definition of ‘an unregistered owner’, in society, there was customary law and there were people who had been able to give or inherit properties but were not able to pay for the cost of the conveyance. They were the owners of the property. All of the ground needed to be covered so that government was not taken by surprise. She believed that that definition should not be changed because it was self-explanatory and covered the risk that the Committee might encounter as it moved on.  

Ms Mjobo said that she supported Ms Shabalala on this point.

Clause 2

Ms Ngema read through clause 2 of the A-List.

Ms S Van Schalkwyk (ANC) discussed point 2, where on page 6 of the Bill, line 19, the amendment sought to omit subsection (2) and substitute it with an amendment. She needed to understand the necessity behind the change of this particular clause. She agreed with the previous formulation in the original draft Bill. The provisions in section 2(2) in the original Bill provided an opportunity for the consultation of cases in expropriation. The proposed concurrence in the first draft was understood within the context that SOE functions, purposes, and interests were already public. That was her submission. She agreed with the rest.

Ms Graham discussed the section Ms Van Schalkwyk had commented on. It said that the ‘provisions of this Act apply, with the necessary changes. She did not understand what ‘the necessary changes’ meant. What changes were those? She wanted clarity on that.

She discussed point 4 which was a new subsection that was being added. It said that the ‘power to expropriate includes the power to acquire a right to use property temporarily’. That spoke to the definition of ‘expropriation’. Why did that have to be repeated in this section? Why was it not just covered by the definition? Other than that, she was happy with the clause.

Ms Shabalala aligned herself with the contribution of Ms Van Schalkwyk. She also had some issues of clarity on the matter. On the issue of point 4 and all the rest, she agreed with what had been inserted.  

Mr Mathebula said that he aligned himself with Ms Van Schalkwyk and Ms Shabalala. He noted that the proposal to change was unnecessary. Section 25 of the Constitution, which was what the Committee had always been looking at when it dealt with the Bill. The Bill needed to be in line with Section 25 of the Constitution. The change was not necessary.

Ms Ngema responded to the issues with subsection (2) and what ‘with the necessary changes’ means. The phrase relates to where there was mention of the names or the functionary was given the power to do something. It is related to such changes where there may be necessary as the content and the context of the provision. That is what it is related to. It was a normal drafting phrase that tried to capture where the legal team had not indicated specifically what was the relevant persons given the task.

She responded to the comments made on the new section 2(5) and the definition. At times there was the principle that it was not wise to give full content and details within the definitions but rather leave it for purposes and within the content of the provision. The details were left out of the definition. This was done to not create redundancy and confusion within the definitions. That was why subsection (5) was added, in addition to what the definition sought to present.

She discussed section 2(1) of the existing Bill. It originally read ‘despite the provisions of any law to the contrary, an expropriating authority may not expropriate property arbitrarily or for a purpose other than a public purpose or in the public interest’. Section 2(2) originally read, ‘despite the provisions of any law to the contrary, an expropriating authority may not expropriate the property of a state-owned corporation or a state-owned entity without the concurrence of the executive authority responsible for that corporation or entity’. She noted the questions raised and deliberations on Section 2(1) and 2(2). She explained why the phrase ‘or cause it to be acquired under subsection (3)’ was inserted. Subsection (3) dealt with urgent expropriation. If it would also be acquired in light of those instances, the definition and the expropriating power may still occur as long as the references and compliance with all the processes were followed. This included what was said in Section 25 of the Constitution.  These two amendments were brought in to enhance the provisions as they appeared as well as to address the issues that were raised during deliberations.

Adv van Breda responded to the concern raised on subsection (2). The existing subsection (2) was omitted as it required the concurrence of state entities to the expropriation of state-owned land. This was in conflict with the concept of expropriation and in conflict with the Constitution, which required a law of general application. Hence, it was substituted to provide that such concurrence would not be necessary.

The Chairperson said that she hoped the support staff was capturing what Members were saying on some of the issues. Members indicated that the Committee should go back to the original document on that subclause.

Clause 3

Ms Ngema read through clause 3 of the A-List.

Ms Graham discussed point 1. The phrase ‘public importance’ was used. This was a new term that did not appear anywhere else in the Act. What was the relevance of that term? What did it mean and was the use of the words ‘public importance’ not limiting in terms of why people were to expropriate?

She discussed point 2. It referenced line 27 but it was actually lined 37. She asked if the section part of subsection (3) was not redundant because it was covered in the preceding section? Or alternatively, it actually contradicted the preceding section because the preceding section spoke of public importance and this one referred to other things. She was concerned that there was a slight conflict between the two sections and there did not have to be. The second subsection was not needed if the jurisdiction of the Minister was increased in terms of what they could expropriate. ‘Public importance’ could include things like the provision and management of the accommodation and land and infrastructure needs. Maybe ‘importance’ was not the right word and something like ‘in the pursuance of their legislative mandate’ could be included. That would encompass their own needs for the pursuance of their objectives.

She discussed point 4. She was concerned that possession vests on expropriation and not on payment of compensation or settlement of the mortgage. She requested that the Committee look at section 3(5)(a) and amend that to include ‘on the payment of compensation’.

Mr Mathebula said that when the meeting started Ms Shabalala indicated to the Committee that Members should not come up with proposals to make changes simply because they wanted changes without any valid or tangible reason. In line with the advice that the Committee received, it was of no use for one to say that what the Committee was advised on that there needed to be changes on that advice. The advice given to the Committee was proper and assisted through the process of the Bill. It was in line with the Constitution and other pieces of legislation, which was used to guide the Committee in terms of coming up with the amendment Bill. He supported not changing the advice given to the Committee.

Ms Van Schalkwyk aligned herself with the comments of Mr Mathebula.

Mr W Thring (ACDP) disagreed with Mr Mathebula and Ms Van Schalkwyk. It was important for Members of this Committee that they were allowed to interrogate and make recommendations in terms of changes. The members might have seen an error and want to make recommendations to improve the Bill. The only types of recommendations that would then be allowed were recommendations from one particular group. It was important for the Committee to allow for constructive debate and input from all members of this Committee.

The Chairperson said that there was no member deliberately saying that members should not comment or must not debate on this Bill. Certain members supported each other on a particular clause because they felt that particular clause was correct, according to them. It was not right to say that they were wrong. All of the views were accepted. If the members differed and could not come closer to each other, then the Committee would have to vote on that particular clause.

Ms Ngema said that the legal team took note of the points that Members made. They would re-look at what had been pointed at, with the guidance of the voting when the voting stage came on this proposal. The legal team would then receive a final directive on what happens. The issue of ‘public importance’ and what it meant and how it may conflate and confuse issues would be re-looked at. The legal team will reconsider the meaning of ‘public importance’ and relate it to ‘public interest’ and ‘public purpose’, rather than just ‘public importance’. The legal team would consider the contradiction as had been pointed out. The suggestions and views of the members were taken on board. The suggestions would be considered.

Adv van Breda said that he did not have anything further to add in respect of subclauses (2) and (3).

He discussed subclause (5)(a). There was a proposal that ‘after compensation has been paid’ should be added. He discussed compensation. The Bill had been revised to provide that compensation must be finalised prior to expropriation. These issues were dealt with in other clauses. He did not believe that it was necessary to include it under (5)(a). He was in agreement with Ms Ngema.

The Chairperson said that the explanations that were given were appreciated. The reason members asked questions was because they read the original document and were present when the legal team responded to the issues raised in the public hearings. If members felt that a certain clause should go back to what it originally was then that needed to be noted. The Committee appreciated the responses of Ms Ngema and Adv van Breda.

Clause 4

Ms Ngema read through clause 4 of the A-List.

Clause 5

Ms Ngema read through clause 5 of the A-List.

Ms Graham said that when the Committee had the presentation by Adv Budlender and Adv Naidoo, from the Department’s legal counsel, they proposed a much more simplified version of the entire process of expropriation. It would have limited the time spent on the investigation, on the notice of expropriation, and then on the final expropriation process. Was that going to be taken into consideration when the Committee was finished with this? Was there going to be some sort of compilation done of the recommendations by Budlender and associates, the Parliamentary Legal Advisor, and the Office of the Chief State Law Advisor? The process as it stood now was very onerous and fairly long-winded. Much of the time, effort, and trouble could be eliminated if the Committee cut out some of the issues.

She discussed section 5(2)(a)(i). It was one of the things she raised during the discussions, and it was important. She had an issue with the use of the word ‘or’ because it basically said that there was no need for an agreement with the owner for a reasonable time. That needed to be looked at. The wording needed to be changed from ‘or’ to ‘and’. Even if it was a reasonable time, they still needed to get permission from the owner of the property to access.

She discussed point 7, it was amending subsection (3). She highlighted section 5(2)(a)(v) of the Bill. It said ‘insofar as it may be necessary to gain access to the property, enter upon and go across another property with the necessary workers, equipment and vehicles’. Again, there was no requirement for the valuer to get permission to access other properties to access the property in question. She still felt that permission needed to be sought for both of those subsections.

She discussed point 8. She felt that all other information should be included under subsection (4)(d)(iii). She felt that the words ‘or any other information required for the assessment’ should be added to the end of that subsection.

She discussed point 10, subsection (6)(b). On what grounds may the owner disallow in terms of subsection (2)? Was the Bill being clear enough with regard to what the grounds were for them to disallow?

She discussed point 11, subsection (7). The problem was that it spoke to the property in question being damaged, but it did not deal with damages that the owner might sustain as a result of the activity. She provided an example of the owner incurring a loss due to action by the expropriating authority, which did not pertain to the land itself. What measures could be put in place to ensure that if the owner of the property also incurred damage as a result of what had happened? That needed to be covered in that subsection. She was concerned about ‘reasonable standard’. It should be ‘close to the original state or sufficient compensation to restore it’. No one knew who determined what a reasonable standard was, and it could be well below the standard the property was at when the damage occurred.

Ms Shabalala said that she was covered by the changes inserted. It covered the rights of the owner and the occupier. Some of the owners may not necessarily be in the country. She was happy because the whole clause also emphasised that this Bill was not arbitrary. It also covered all other eventualities that may occur when this process took place.

Mr Thring discussed point 12. It was an amendment to omit subsection (8) and substitute it with a new subsection. In the original document, it said, ‘must comply with the relevant provisions of the Institution of Legal Proceedings Against Certain Organs of State Act’. He asked a question for clarity. Why was ‘relevant provisions’ taken out?

Mr Mathebula said that the members of the ANC aligned themselves with the advice given by Ms Ngema. It would be frivolous of him to propose any changes.

Ms Ngema responded that the presented proposals were the result of teamwork; the Department and the counsels had also looked into this. What appeared in clause 5 was aligned with what was discussed in the new process. She responded to the question on subsection (8). It was just removing redundancy because an Act was relevant in all of its provisions. She noted the other questions. The legal team would take it on board and do the necessary corrections where it must be done and extend the permission to the adjacent properties as well. The wording would be looked into and phase in whatever was outstanding.

Clause 6

Ms Ngema read through clause 6 of the A-List.

Ms Graham discussed point 3. What were the sanctions for non-adherence? The municipal manager was given 20 days or within a reasonable time but what would happen if they ignored any written request and did not comply? That could have a material effect on the outcome of the deliberations. At some point non-adherence needed to be addressed because there were some municipalities that did not comply with requests.

Ms Ngema said that there was an existing legal framework and if need be, reference could be made to them.

Clause 7

Ms Ngema read through clause 7 of the A-List.

Ms Graham said that this was an excellent amendment, and that the clause was fantastic.

Mr Mathebula discussed point 3. Generally, he agreed with the amendments except for this section. This required some discussion. The requirement would make it difficult and prove cumbersome for the expropriating authority to explain how the amount was arrived at with reference to supporting information. How did one provide with reference to supporting information an offer made to the expropriated owner based on a just and equitable compensation as per the Constitution, section 25? It was not by making any reference to the Constitution and case law.

He discussed point 6. The ANC rejected the amendment based on the counteroffer. It agreed with the same process where the counteroffer was made in relation to the process in the Bill. The Committee had previously said that it did not want a process that would be prolonged and unnecessary. The Bill needed to make the process shorter in order to deal with any expropriation that was to take place, in a manner that was faster. He was in full agreement with all other advice given to the Committee.

Ms Shabalala agreed with the contribution of Mr Mathebula. The information and technical know-how as to who was responsible for valuing the property rested with the valuer. She noted the powers given to the valuer. It would be a contradiction to ask the expropriating authority to come up with the details as to how they arrived at a particular value. This was not the first time the Government was dealing with expropriation. In past cases, the valuer was the one that was in charge, but the court was open. The Constitution allowed the owner to appoint his or her own valuer to contest the issue.

Ms Ngema said that this was teamwork that had been worked into these proposals. She responded to the question about the counteroffer. The whole process was built-in to ensure that when the expropriating authority made a decision it would have all of the information at hand. That was why there were the investigation stages and processes of requesting information. They would have collated and obtained all of this information, in line with the Promotion of Administrative Justice Amendment Act and section 23. The expropriating authority would be in a position to explain how the decision was arrived at. The decision was meant to have a justification as per the decision-maker who made an adverse decision against another person or their rights.

Adv van Breda responded to the concern that the expropriating authority would now have to provide supporting documentation. It was the expropriating authority that would instruct the valuer so that supporting documentation would then be obtained from how the valuation was determined. He did not see that it would be a difficulty.

Clause 8

Ms Ngema read through clause 8 of the A-List.

Ms Graham commented on point 2. Under subsection (2)(b), it stated ‘delivered to a known holder of a right whose rights are not expropriated’. That phrase was not as clear as it could be. She commented on subsection (2)(c)(v) and (vi). The word ‘on’ needs to be removed from those two subsections.

She discussed point 9, in subsection (4)(e) the inclusion of the word ‘of’ seemed to be incorrect within that sentence. Otherwise, it was an excellent clause.

Mr Mathebula discussed point 6. He wanted to know on what basis paragraph (f), on page 11, was deleted from the Bill? What was the rationale behind this deletion? Under normal circumstances, it was not that government would always agree with the expropriated owner in terms of the compensation of a particular property. In an event that one could not agree in terms of the compensation that the Government was to give the expropriated owner, the owner had Constitutional rights to challenge the compensation that government was giving to them. If this paragraph was deleted, it was like the Bill was taking the Constitutional rights away from the owner to challenge the compensation that was made. The owners also had ways of determining the value of their property. If Government was going to give them less than what the property was worth, then they had every right to approach any competent court. If this paragraph was removed, it would be problematic.

Ms Van Schalkwyk said that she had a discussion with Mr Mathebula on this issue. She thought that he was actually referring to page 11, from line 40, which sought to omit paragraph (h). The members needed to understand the basis of this deletion. The deletion was of paragraph (h) which said ‘if the amount of compensation is disputed, a statement that the expropriated owner may institute proceedings in a competent court to dispute the amount of compensation, or request that the expropriating authority commence such court proceedings, within 180 days of the date of expropriation, which time period may be extended by the court on good cause shown’. She wanted to know the basis of the deletion of that paragraph (h).

Ms Ngema explained that the removal of paragraph (h) was done because of the enhancement to clause 7 and the new provisions that were stated, in light of the new process and the enhancement that would take place. All of this would then have taken place during the negotiation stage. It was not just taken out and abandoned. It was taken care of at an earlier stage in respect of the new process that was defined.

Adv van Breda discussed the omission of paragraph (h). The reason it was omitted was due to the amendments that were brought in the earlier clauses. That was why paragraph (h) would no longer fit in the subsection. He discussed the dispute with regard to compensation. There was still clause 21 which did provide owners and holders, as well as mortgagees, with the right to dispute an intended expropriation and approach an appropriate court for relief.

Clause 9

Ms Ngema read through clause 9 of the A-List.

Clause 11

Adv van Breda read through clause 11 of the A-List.

Ms Graham said that even though clause 10 was not discussed in the document she wanted to raise a point about it. Clause 10(6) stated that the ‘expropriating authority may require the expropriated owner to compensate a person who held an unregistered right’. She was still not sure if an expropriated owner could be forced to do that. That needed to be kept in mind going forward. She was happy with the amendments to clause 11 as presented.

Ms Van Schalkwyk said that she agreed with the amendments that were proposed for clauses 10 and 11.

Clause 12

Adv van Breda read through clause 12 of the A-List.

Ms Graham said that the DA still believed that section 12(3) was unconstitutional. It was a mechanism to amend the Constitution via ordinary legislation. The DA would object to that going forward.

She commented on point 2, the proposal of the new paragraph being inserted for property with a new purpose. If the DA could not get clause 12(3) removed, then that made sense. It was a valid proposal to insert into the amendments.

Mr Mathebula said the changes made under clause 12 did not make sense. It was a bit problematic. The proposed formulation in the A-List was not clear. It would make the reading of the clause unclear and ambiguous. The formulation provided made it legally possible for the expropriating authority not to incur costs in an event that the expropriated owner fails to comply with section 14(1). Dealing with the compensation claim was one matter he wanted to raise under clause 12.

Ms Van Schalkwyk noted point 2, where a paragraph (f) would be added and point 3, where subsection (5) would be added. She strongly agreed with the proposals that were made in those two amendments.

Adv van Breda responded to the comments made on the omission of the word ‘to be paid to an expropriated owner or expropriated holder’. The omission of those words was inconsequential because they were implied. There was nothing wrong with leaving the wording in, but it would be repetitive. Subclause (1) provides that ‘the amount of compensation to be paid to an expropriated owner or expropriated holder must be just and equitable reflecting an equitable balance between the public interest and the interests of the expropriated owner or expropriated holder, having regard to all relevant circumstances’. Therefore, it was implied that payment would be made to the owner or holder. The legal team could take that into consideration as to whether that wording should not be omitted.

Ms Ngema pointed out that the concerns and questions raised in this section may become clear once the Committee considered clause 23. The concerns and questions would be dealt with when the Committee got to clause 23.

Clause 14

Adv van Breda read through clause 14 of the A-List. Clause 14 was rejected and replaced with a new clause.

Ms Van Schalkwyk said that the ANC disagreed with the new clause 14 and agreed with the original formulation in the initial draft Bill. The counteroffer of the new clause 14 was rejected. She emphasised that the ANC members agreed with its formulation in the initial draft Bill.

Ms Shabalala said that she aligned herself with the contribution of Ms Van Schalkwyk. The Committee should stick to the original clause 14. It was sufficient and did not negate the prescripts of the Constitution.

Ms Graham supported the inclusion of the new clause. In line with how the rest of the Bill was formulated, this clause made absolute sense. It fairly represented the rights of everyone involved in the issue. She believed that it should be retained as proposed.

Ms Mjobo said that she aligned herself with Ms Shabalala on rejecting this new version. She supported the first version of clause 14.

Mr Thring said that the ACDP supported the new clause, and that the new clause should be retained.

The Chairperson said that the members were also representatives of political parties. The ANC did not support this new clause 14. The ANC supported clause 14 which was in the original draft Bill. The ACDP and DA supported the new clause 14. This was one of the clauses that the Committee would vote on to see which one the Committee supported.

Clause 15

Clause 15 was rejected and clauses 16 to 33 were renumbered accordingly.

Clause 16

Adv van Breda read through clause 16 of the A-List.

Ms Graham said that she supported the inclusion of the new clause 16.

Ms Van Schalkwyk said that she agreed with clauses 16(1) and (2). She disagreed with subsection (3) due to the counteroffer. She rejected subsection (3).

Mr Thring said that the ACDP supported the amendment to clause 16 in its entirety.

The Chairperson said that certain political parties agreed and disagreed with this clause. For all of the clauses the members could not agree on, the Committee would vote on them. The ANC was clear with regard to the counteroffer. The ANC disagreed with the counteroffer from the very beginning.

Clause 17

Adv van Breda read through clause 17 of the A-List.

Clause 18

Adv van Breda read through clause 18 of the A-List.

Ms Graham said that she was happy with the change in clause 18, the substitution of ‘bond holder’ with ‘mortgagee’. However, this clause still did not address the imbalance of power between the bank and the bondholder. The input from Agri SA was that it dissolved the rights to the land but not between the owner and the bank. That made market value a very important area to look at when looking at the valuation of the property. She was concerned that the bank in this instance had more power than the owner. It was something to look at going forward.

Ms Van Schalkwyk commented on clause 17. She wanted the rationale behind the change of the heading. She agreed with the proposed amendments to clause 18.

Adv van Breda said that the payment of fines was dealt with in another clause, clause 27. The heading to clause 17 was simplified. It was not a substantive amendment. The heading as it stood was a bit long-winded. The amendment was to simplify it.

Clause 19

Adv van Breda read through clause 19 of the A-List.

Ms Graham discussed point 3, the inclusion of a new paragraph (c). It stated, ‘until the right to possession vests in the expropriating authority’. Could it not also say, ‘or ownership passes to the expropriating authority’ whichever comes soonest. The expropriating authority might have ownership of the property and not possession. At what point did they become the owner of the municipal charges? Maybe the paragraph should include ownership as well as possession.

Adv van Breda said that Ms Graham raised a valid point. The legal team would take it under consideration and discuss it with the Department and their counsel.

Ms Ngema said it needed to be kept in mind the context where the date of expropriation and date of possession were clarified in light of vesting in clause 9. The legal team needed to check if that was not sufficient. She believed that it may be fine, but the legal team would look at it.

Clause 21

Adv van Breda read through clause 21 of the A-List.

Clause 22

Adv van Breda read through clause 22 of the A-List.

Ms Graham discussed clause 21. She believed that any lack of consensus should halt the expropriation process. She liked the amendment to subsection (8). It was a step towards what was trying to be achieved. Compensation was going to be the biggest sticking point during negotiations and if there was a lack of consensus then the process should not be proceeded with. It was very difficult to unscramble an egg. Once the process had happened then the person who was disputing would have less chance of success. She discussed clause 22. The legal team had not looked at subsection (9) of that clause. It stated that ‘an expropriating authority may at any time during the temporary use of the property, commence with the expropriation of the property and must comply with all relevant provisions of this Act’. She believed that this unfairly favoured the expropriating authority, who would already be in possession of the property. It made it very difficult for the owner to argue against it. It leveraged the expropriating authority better than it did the person who was the property owner. She wanted that looked at going forward to see whether that clause should remain. The expropriating authority should not have possession when they were applying for permanent expropriation.

Ms Van Schalkwyk agreed with the proposal for amendments to clauses 21 and 22.

The Chairperson said the process the Committee was doing today was the culmination of a number of processes in which the members had dealt with the Bill clause by clause. The Committee raised issues and the legal team came back to present. She hoped that the members would not push in something that was not previously discussed when the Committee went through the Bill clause by clause. The members should not just expect that because they raised an issue that it should appear in the Bill.

Adv van Breda responded that only proposals were made that the legal team considers certain clauses and issues that it may give rise to. The legal team would consider the proposals moving forward but it was the prerogative of the Committee whether it should be included or not.

Clause 23

Adv van Breda read through clause 23 of the A-List. Clause 23 was rejected and replaced with a new clause.

Ms Ngema added input on this new clause. It was fairly new and there was nowhere else it had been dealt with in other statutes. It had been brought in through jurisprudence. There was one case that the legal team had come across from the KwaZulu-Natal High Court. Such a matter had been brought before the court, where in the Richards Bay area there was an issue against the municipality. The previous owner of the property that was expropriated wanted to have their property back or be given the right of buying first. She noted the challenges facing the original clause 23, the withdrawal of expropriation. Questions would be asked about the integrity of the state if the state decided after the expropriation process to, later on, find itself in a situation where expropriation had to be withdrawn. This new clause arose out of the deliberations and the discussions between the support team of the Committee in light of everything that had transpired and the issue of repurchasing and re-acquiring the expropriated property back to the persons who initially owned it. There were various issues related to this including that the previous owners must all be consulted and give consent. It was going to be a long process and there were various issues. The legal team acknowledged that this provision was breaking new ground. The legal team was not even sure if it was in line with an existing policy because every draft legislation needed to arise out of an existing policy. It was never regulated before. It was something that was completely new, and members needed to have that at the back of their minds. Members needed to consider the usefulness and necessity of this provision. It was a suggestion in light of everything that had happened and the deliberations that had taken place, both from the public submissions and Members’ concerns. This new clause was presented as a proposal.

Ms Shabalala said that she had an uneasy feeling that this was a result of ‘the devil’s advocate’. This was to cast doubts on whatever might happen. This new clause would create unintended consequences. She was happy that the legal team mentioned the matter around KwaZulu-Natal. It was a given that most of the land that was purchased for the benefit of the community would find its way back into the hands of the previous owner. This had been a backlash to government policy and a setback to transformation. She would not support this clause in any given circumstances. It was very divisive and might come with unintended consequences. It might divide groups of people. She imagined a situation where the land was expropriated. Then five years later because of litigation it found itself having to be given back to the owner. What was the fundamental reason for expropriating this land in the first instance? This new clause was a collision course between the members and their communities. It defeated the whole purpose of expropriation. She did not support the new clause. 

Ms Graham said that the purpose of this Expropriation Bill was not for land reform purposes. The purpose of this Bill was to ensure that government had a mechanism to expropriate property to do its work. That was not necessary for land reform. There were other reasons why expropriation took place. For example, government could expropriate for the purposes of building a hospital. If the funding fell through or the budget was reassigned, and it no longer needed to build a hospital then it no longer needed the land. She appreciated that there was a ‘sunset clause’ in this new section which was not in place in the past. It provided a strong and detailed mechanism for the return of property where the property was no longer required for the purposes for which it was expropriated. She reiterated that land reform was a very small part of what the Expropriation Bill was about because there were land reform mechanisms. This Bill was to deal with all the instances where government required property to further its objectives. It was an excellent clause, and she fully supported its inclusion in the Bill.

Mr Mathebula said that Ms Shabalala had put it clearly, as to the contradictions this clause had. The members might find themselves in collision with their communities as a result of this clause. The Committee might be found wanting by the courts. The Committee should not proceed with such a controversial clause. The Committee should rather stick with the original clause 23. It would help allay some of the ambiguities, doubts, and fears that Members would have in relation to this new clause.

Ms Van Schalkwyk said that she aligned herself with the views of Mr Mathebula and Ms Shabalala. She focused on subsection (1)(a) where it said, ‘did not commence with physical use of the property’. The operative words being ‘physical use’. When she looked at those words they could mean many things. For land restitution, did it mean the erection of houses on the land for land restitution beneficiaries? For a housing project, was it restricted to the building of the said houses? She provided a number of examples. What about the approvals, planning, and necessary surveying? That was an area of concern. It was very broad and could lead to a lot of litigation. She supported the view that the Committee refer back to the original proposal and not use this major amendment.

Mr Thring said that the amended clause 23 was progressive. If South Africa had this clause in the previous dispensation, under the apartheid regime, many of the problems facing the country would actually be resolved. It gave no recourse when the previous government failed to fulfill the reasons for expropriation. This new clause was clearly a protection measure that needed to be included. The ACDP agreed with its inclusion.

Adv van Breda said that there were no questions except the concern with regards to the physical use of the property. The Department had proposed that the word ‘physical’ be omitted because it would be difficult to define what ‘physical use’ would mean. Referring to the word ‘use’ would be all encapsulating and there would be no limitation in respect thereof.

The Chairperson said that this was one of the clauses that Members disagreed on.

Clause 25

Adv van Breda read through clause 25 of the A-List.

Clause 27

Adv van Breda read through clause 27 of the A-List.

Clause 28

Adv van Breda read through clause 28 of the A-List.

Ms Graham said that she was happy with both clauses 27 and 28 as presented.

Ms Van Schalkwyk said that she was in agreement with everything that had been presented.

Clause 32

Adv van Breda read through clause 32 of the A-List.

Ms Mjobo said that she disagreed with the formulation. She supported the original formulation. That formulation would make this Act unforeseeable. She preferred the original formulation.

Ms Graham asked if it was clause 32 that Ms Mjobo had just objected to? She wanted clarity on that. All the amendment was doing was correcting paragraph (a) and to substitute with subsection (1). She was wondering why Ms Mjobo was objecting to that clause?

Adv van Breda responded that the amendment to clause 32 was simply a correction. In subsection (2) it erroneously refers to a ‘paragraph (a)’. Clause 32 did not consist of any paragraphs. This should be a reference to subsection (1). It was merely a correction.

The long title

Adv van Breda read through the long title of the A-List.

Ms Graham said that she supported the amendment of the long title. It covered everything with respect to the Act. She thanked the Parliamentary Legal Advisor and Adv van Breda for the work done in addressing the concerns raised both in the public hearings and the written submissions on this Act. The document that the Committee had been presented with today was a strong reflection of the inputs that were made. She expressed her gratitude for the work done.

Ms Van Schalkwyk said that she was of the opinion that the Committee was still busy with the Bill. The Committee had not finalised everything. She discussed the long title. She agreed with the new proposal that had been presented.

Mr Mathebula said that he supported Ms Van Schalkwyk’s comments.

The Chairperson thanked the members, Adv van Breda and Ms Ngema for their contributions. It should be noted that there were clauses and paragraphs in which members of this Committee. disagreed totally. She had made some notes on the disagreements on the A-List. There were issues members had raised and could not agree on them. These included contentions on clause 2, clause 7, clause 14, clause 16 and clause 23 where there was total disagreement. There were serious disagreements on these clauses. The Chairperson said that on clause 14, the proposal from Mr Mathebula was that the Committee go back to the original formulation in the initial draft Bill. The Committee had been presented with a new clause 14 and a new clause 23. These were significant contentions, and the Committee would need to vote on them. The final say would come from the members as the Committee would send the draft to Parliament after it had been adopted by the Committee. The Committee listened to the people of South Africa through public hearings, written submissions, and oral presentations. The legal services advised the Committee on all these matters. Because of the disagreements, the Chairperson proposed that the Committee vote on the clauses that she had noted. She asked which members thought that the Committee should take the proposed amendments as is?

Ms Graham said that the members were not advised that there was going to be any voting on any of the clauses today. Members were not prepared for that. She requested that the voting on the clauses be deferred to the next meeting.

Mr Mathebula said that he did not agree with Ms Graham. It was procedural that once the Committee dealt with the Bill it would have to vote. The Committee needed to remember that it had been delayed in dealing with this Bill. The Committee could not afford another delay. The people of South Africa wanted to know what was happening with the issue of this Bill. He did not agree with that proposal. Voting was voting. There was nothing to prepare when required to vote. The Chairperson was reading out options to Members on whether they agreed with what the legal team had presented. There was no need for consultation and to go for a caucus. The Committee should proceed with voting.

The Chairperson said that there were clear disagreements on what was being proposed by the legal services. The Committee would have to resort to a voting process. The document needed to have all of the clauses that needed to be inserted and revert back to the original clauses if the Committee decided so. She asked which members thought that the Committee should take the proposed amendments as it was presented by the legal team? She wanted to see who agreed with all that had been presented.

Ms Van Schalkwyk said that she was not sure she understood the Chairperson correctly. There were some clauses that were agreed upon and some that the members had not agreed upon. It would be extremely difficult at this stage for the members to just raise their hands if they agreed on all clauses. Surely it had been noted all the clauses which were agreed upon and those that members had raised contrary views upon. She asked the Chairperson to note her concerns.

The Chairperson said that she noted the concern of Ms Van Schalkwyk. There were clauses that she noted in which there were serious disagreements. She said it was mainly clause 14 and clause 23 where there are major disagreements. Some members said that the clauses should revert back to the initial draft Bill and other members said that the clauses should be changed to those proposed by legal services. She asked Ms Van Schalkwyk if she was fine?

Ms Van Schalkwyk said that she did not capture all of the inputs made by all the members. She was not sure if it would be to the Committee’s disadvantage or advantage at this point to proceed with the voting process. Would it not be safer for the Committee to allow the A-List to be cleaned up and printed? It should be availed to the Committee to look at the final version before the members voted on it. She was cautious on this matter.

Ms Graham supported the proposal made by Ms Van Schalkwyk.

The Chairperson said that on clause 14 and clause 23 there was serious disagreement amongst members. The legal team needed to highlight those clauses.

The Chairperson asked if there was any counter-proposal? There was no counter-proposal. The Committee was just deferring this issue. She hoped that the Committee would have finished the issue of the A-List today. Then the document could be presented to the Committee and adopted. The Committee had amended this quarter’s programme several times. She asked the Committee Secretary when the Committee could meet.

Ms Nola Matinise, Committee Secretary, said that the proposal by Members was correct. The process required the Committee to go through the cleaned-up A-List. That would be coordinated after this meeting. The Committee would go through the A-List and consider all of the clauses. That was where the voting would have to take place. This would be done before the Committee report on the Bill would be considered and adopted. The Committee Secretary suggested that a meeting could be scheduled on a Friday morning within the weeks left in the quarter.

The Chairperson said that the Committee could not continue to postpone the Bill. The Committee would deal with the A-List next week Tuesday. On Wednesday the Committee would have to deal with the report from the Department on the parliamentary villages. It was another issue that the Committee could not postpone. The Chairperson appreciated the Members’ robust debate. It was the responsibility of the Committee to ensure that this Bill was passed. One of the agendas of the Bill was to transform how government dealt with the issue of property. The Bill was to repeal the Expropriation Act of 1975. That was very crucial. The Committee appreciated what had been done by the Parliamentary Legal Services, the Office of the Chief State Law Advisor, and the Department’s Legal Services. She hoped that on Tuesday, the Committee would finalise everything.

The meeting was adjourned.