The Expropriation Bill - 1

21 Jan 2021 12:00 am

Wiseman Bhuqa analyses the Expropriation Bill with reference to nil compensation, and its its relationship to the current expropriation enabling framework of Acts and Ordinances which prescribe expropriation with compensation.

THE EXPROPRIATION BILL: AN EXPOSITORY DISCOURSE FOR DEEDS REGISTRATION

The Expropriation Bill 23 of 2020 introduces a new legal framework which regulates expropriation of property in South Africa, and more explicitly, land expropriation without compensation. As far as the issue of compensation is concerned, section 12(1) makes provisions for payment of compensation; while section 12(3) regulates the instances where a nil compensation is just and equitable.

In terms of section 12(3) a nil compensation is just and equitable under the following circumstances:

  1. Where the land is used for generating market value, other than by development and generating income;
  2. Where land is held by a State Organ and the latter does not use that land for its core functions, provided that the State Organ paid no consideration for it;
  3. Where an owner has abandoned the land by failing to exercise control over it;
  4. Where the market value of the land is equivalent to, or less than, the value of direct state investment or subsidy in the acquisition and beneficial capital improvement of the land, and
  5. Where the nature and condition of the property poses a health, safety or physical risk to persons or other property.

The new expropriation Act acknowledges the existence of enabling expropriation laws which operate within its framework. Cognisance must be taken that section 31 of the new Expropriation Act (Bill) expressly provides for the repeal of only one Act, to wit, the Expropriation Act 63 of 1975, while the hundreds of other existing expropriation Acts continue to apply parallel to the new Act. The Act then has a non-conflict clause to ensure that none of the other expropriation Acts are inconsistent with it. In this regard two sections are relevant, namely:

  1. Section 30(1) of the new expropriation Act which provides that any law dealing with expropriation that was in force immediately before this Act came into operation must be interpreted in a manner that is not consistent with the latter; and
  2. Section 30(2) which provides that in the event of a conflict between the Act and any other law the Act prevails.

These existing expropriation Acts and Ordinances prevail as an integral part of the new expropriation framework, and empower the relevant State institutions to expropriate property for public purposes. However, the latter do not make provision for expropriation without compensation; therefore, these laws will undergo suitable consequential amendments in order to accurately align with the new Expropriation Act and the amended section 25(1) of the Constitution as far as the “Nil compensation” is concerned.

The following legislation forms part of the expropriation enabling and empowering framework:

  • KwaZulu-Natal provincial roads act 4 of 2001-section 3(2)(g) power of the Minister to expropriate with compensation to promote and implement a provincial road network;
  • Section 190 Local authorities’ ordinance 25 of 1974;
  • Municipal Ordinance 20 of 1974, Western Cape and Eastern Cape;
  • Section 7(1) Transvaal Roads Ordinance 27 of 1957;
  • Section 6 of the read with item 7 schedule 1 of the Legal Succession to the South African Transport Services Act, 1989;
  • Extension of security of tenure act 62 of 1997-section 26 the Minister for the purposes of any development under this Act may expropriate land;
  • Land Restitution Act 22 of 1994-Section 42E (1);
  • South African National Roads Agency Limited and National Roads Act 7/1998 –section 41;

The nature and type of expropriation prescribed in the above laws is expropriation with compensation.

The list is not exhaustive; there are copious other laws that form part of the enabling framework across the three tiers of government and related institutions, and they all arguably provide for expropriation with compensation. Amongst these concurrent pieces of legislation are the two acts that provide procedures for registration of expropriated immovable property: namely the Deeds Registries Act, 1947 (Act No. 47 of 1937) and the Sectional Titles Act, 1986 (Act No. 95 of 1986), which will, in due course, undergo relevant consequential amendments in line with the new Act. The former also makes provision for compensation, see proviso to section 31 of the Act.

Framework Legislation

1. The Constitution: s25
2. The new Expropriation Act (framework legislation)

The

Empowering Legislation

Various Provincial Acts and Ordinances

Judiciary

Procedural Legislation

Deeds Registries Act and Sectional Titles Act

(Courts)

Table illustrating the expropriation framework in South Africa

TRANSITIONAL MEASURES
In terms of section 32(1) of the new Expropriation Act, the Act does not apply to expropriations initiated prior to the commencement of the Act.

Wiseman Bhuqa
Former Lecturer: Deeds Registration Practice and Procedure
Directorate: Deeds Training, Office of the Chief Registrar of Deeds/Justice College