By Solly Phetoe
All societies require a framework for expropriation. The Expropriation Bill recently passed by Parliament presents a sober law that meets South Africa’s needs and international best practice.
South Africa’s past continues to be felt across society with property and land still largely held by white men 30 years into democracy, despite constituting 4% of the population.
Debate around the bill has focused on one element, namely compensation. This matter has been unhelpfully polarised on an issue that is very sensitive.
The reality is all societies have expropriation laws, including South Africa. The task is to ensure it reflects the needs of South Africa, protects the rights of ordinary citizens and advances transformation.
The Expropriation Bill adopted by Parliament meets these progressive criteria.
Our existing Expropriation Act was enacted in 1975 at the height of the darkest days of apartheid.
Naturally, it does not represent the progressive values of the 1996 Constitution. The overhauling of the act is long overdue.
The current provisions in the act requiring the state to provide market-related compensation when expropriating land have been an obstacle to advancing land reform, restitution and distribution time and again.
A decade ago the state was compelled to spend R800 million in a single purchase of the Mala Mala Game Reserve, a third of its land reform budget for that year!
Despite the government’s best efforts, we have not been able to sufficiently shift the overall racially skewed ownership of land since 1994.
Some may see nothing wrong with this and imagine that apartheid never happened. Anyone with the most cursory familiarity of South Africa’s landscape would ask why 30 years into democracy are our communities, home and land ownership still reflective of the colour of one’s skin?
We can continue to tackle land reform at the current pace, but at our own peril. We need look no further than Zimbabwe to see first-hand the dangers of ignoring the original sin of colonialism, apartheid and racially skewed capitalism.
If we continue on this path of denying the real hunger for land among millions of ordinary South Africans, we will only have ourselves to blame when one day society rebels.
Listening to the critics of the bill, one would imagine that this was some rushed last-minute job thrown together under the cover of darkness.
The reality is the bill has been painstakingly drafted and consulted over the past decade at Nedlac and Parliament.
Cosatu along with colleagues from Organised Business were part of these extensive negotiations. During these engagements, the bill was substantially improved.
It is important to understand that expropriation is a norm across the world, irrespective of ideology. In most instances, expropriation is government acquiring land to build a road, a dam, a power station, a school or a hospital to provide an essential public service to society.
The bill provides a single framework for expropriation for all levels of government. It identifies the criteria for when it may be used, namely to meet a public service such as the above-mentioned or to address the legacies of dispossession of apartheid and colonial rule or the inequalities that still pervade today.
Compensation is provided for and its calculation is set along carefully considered criteria. These include the current use of the property in question, the public good it is needed for, how the property was acquired in the first place and what compensation was paid for it then as well as the current value of the property.
The state will be enabled to determine whether full, partial or no compensation must be paid along these criteria for a set category of land properties.
These are where land has been abandoned, or is idle but needed for a public purpose, or state land, or land where the value has been artificially inflated because of state investments.
In short, the state is not being given a blank cheque to run amok as it pleases but rather a carefully crafted tool that should be used to protect the state’s limited fiscus for land that is needed to advance the needs of society and transformation and to prevent the unfair and unaffordable profiteering by land owners at the expense of the state and society.
Two components in the bill have been critical for Cosatu. One is the above transformation mandate. Two are the protections for the rights of ordinary citizens, namely workers.
Most land expropriated is to expand a road or build a school or a dam among others. In most instances these may affect the homes or property of workers. We have a vested interest as the Federation in a bill which affirms the rights of workers but equally that provides rational cheques and balances on the power of the state.
We have experienced systemic abuse of expropriation under the apartheid and colonial regimes. District Six, Sophiatown and countless other communities are painful scars of this trauma.
We have also seen that even in a constitutional democracy, state capture is a real possibility. We thus need a bill that provides transparency, accountability and legal protections and recourse to the courts by any aggrieved party.
The bill does exactly that. It stipulates what is to be done, by whom, when and how. It affirms the rights of all parties to go to court to seek legal recourse as needed.
The bill is a fair compromise that will be an important tool for the government to advance the cause of land reform and transformation while simultaneously providing the clarity that society seeks and most importantly protecting the rights of workers.
Cosatu supports this progressive, common sense and long-debated Bill. We commend the government led by our ally, the ANC, on this important milestone.
We are confident it passes constitutional muster. It will empower the state to release land needed for the farmworker seeking security of tenure, the rural woman looking for a plot of land to set up her own business, the resident of an informal settlement wanting to build his own home.
What we cannot afford to do, is continue to deny millions their fundamental birthright, namely access to land.
Solly Phetoe is General Secretary of Cosatu.
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