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The Expropriation Bill, which provides in certain circumstances for expropriation of property with nil compensation, is set to be challenged in the Constitutional Court if it is passed in its current form by the National Council of Provinces (NCOP) and signed into law.
This follows the National Assembly on Wednesday considering and passing the bill.
Agri South Africa executive director Christo van der Rheede and Democratic Alliance (DA) Shadow Minister of Public Works and Infrastructure Samantha Graham-Maré confirmed on Thursday that they intend to challenge the constitutionality of the bill if it is passed by the NCOP in its current form and assented to by the president.
However, Graham-Maré expressed the hope that this will not be necessary and the DA will be able to bring enough pressure to bear to amend the bill before it is enacted.
Van der Rheede said the National Assembly on Wednesday did not use the debate on the bill to engage with the serious flaws which remain in it and “missed this opportunity to mitigate its likely harm to the agricultural sector and wider economy should the bill in its current form be adopted”.
He said Agri SA’s position remains that the inclusion of the nil compensation clause will undermine access to capital and capital formation for the sector and economy.
Examples from similar land policies implemented in countries like Zimbabwe and Venezuela illustrate the potentially disastrous impact these policies can have on agriculture, the broader economy and society, he said.
Van der Rheede said another significant issue with the bill is how it defines expropriation itself, which Agri SA believes is too narrow.
He said this essentially opens the door to a form of indirect expropriation through the limitation of property rights without compensation being payable.
“These issues will have a negative impact on our shared national commitment to building a more inclusive agricultural sector.
“It will weaken the protections afforded to private property and this could see an exodus of capital from the agricultural sector and the broader economy.”
He said the anticipated loss of jobs and investment will impact both emerging and established farmers alike.
“A further assault on the certainty of property rights will only add to a climate that deters investment in, among others, the agriculture sector, which will undermine the country and region’s food security.”
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Graham-Maré said the bill seeks to undermine private property rights in favour of state ownership by sneaking expropriation without compensation through the back door inside of ordinary legislation.
The DA therefore believes the bill is unconstitutional and violates Section 25 of the Constitution, she said.
Graham-Maré said Minister of Public Works and Infrastructure Patricia de Lille’s response was that the independence of the judiciary would ensure that compensation would be fairly determined.
However, she said the average person is not able to afford the costs of litigation, particularly against the state which has access to vast legal resources and no limit on expenditure.
“Litigation should be the very last resort, not the preferred method, for determining just and equitable compensation.”
A number organisations have previously criticised and voiced their opposition to the bill, including the Banking Association of South Africa (Basa).
Attempts to obtain comment from Basa on Thursday were unsuccessful.
However, the association highlighted a number of concerns about the bill in a submission released last year, including:
The purpose of the bill is to repeal the existing Expropriation Act of 1975 to provide a common framework in line with the Constitution to guide the processes and procedures for the expropriation of property by organs of state.
It also provides for several circumstances where it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest.
These include where:
Parliament previously said the introduction of the Expropriation Bill should not be confused with the Constitution Eighteenth Amendment Bill, which was proposed to amend Section 25 of the Constitution to allow for expropriation without compensation.
The Expropriation Bill seeks to outline how expropriation must be done and guides the processes and procedures for expropriation of property by organs of state.
The Constitution Eighteenth Amendment Bill in December 2021 failed to receive the required number of votes in the National Assembly to be passed.
Listen as Fifi Peters talks to Bulelwa Mabasa from Werksmans about the bill (or read the transcript here):
This article originally appeared on Moneyweb and was republished with permission.
Read the original article here.
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