Can SA trust municipalities to handle expropriation powers responsibly?

The inter-ministerial committee on land reform has published the 2020 Expropriation Bill and public works minister Patricia De Lille is reported as proudly listing some of the government agencies which the new law will empower to expropriate property, namely “the president, seven ministers, all provincial premiers and all municipalities”. (In fact, there are even more agencies that have the power to expropriate.)

Expropriation occurs when the state takes someone’s property against their will, usually with the justification that doing so is for a public purpose or in the public interest. It is a legal mechanism that gives authorities a tremendous amount of power over the lives and prospects of private citizens. That such great power entails great responsibility is obvious.

But how confident can we be that the 295 government entities mentioned by Minister De Lille will handle their power responsibly? Let us focus our attention on the municipalities, of which there are 278 in South Africa.

A July 2020 report by the Auditor-General notes that:

• The performance reports of 67% of municipalities “had material flaws and were not credible enough for the council or the public to use”,
• Mentions “increasing indicators of a collapse in local government finances”,
• Points out that 91% of municipalities “did not comply with legislation”, and
• Only 2% of municipalities fully complied with supply chain legislation.

Under the circumstances, we must ask the question: is it wise to entrust the power to take another’s property in the hands of collapsing and broke organs of state? Can they be trusted to suddenly discover the virtues of clean governance and not to abuse this power?

It should also be noted that the Expropriation Bill has more than just land in its crosshairs: it defines property by way of reference to Section 25 of the Constitution, which explicitly states: “property is not limited to land”. In other words, houses, factories, shares, licences and trademarks could all be subjected to expropriation without compensation.

The fact that the bill lists a certain number of circumstances under which land might be expropriated is also no reason for comfort. The list is prefaced with the disclaimer “including but not limited to”, meaning that any number of other circumstances could be added in future, effectively rendering the list moot.

The Expropriation Bill is a highly dangerous piece of legislation that bears risks not only for landowners and homeowners, but for all South African who own property of any kind – as well as for the economy itself, which cannot flourish in the absence of substantive property rights.

Dr John Endres is Chief of Staff at the Institute of Race Relations (IRR).

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