Expropriation Bill [B4-2015]: public hearings with Deputy Minister in attendance Day 2

Meeting report

Agri-SA submission
Ms Annelize Crosby, Parliamentary Representative for Agri-SA, said Agri SA is a federation of agricultural organisations comprising nine provincial agricultural unions and 24 commodity organisations. Agri SA supported orderly land reform - equitable land distribution is a prerequisite for rural stability and inclusive rural development. Agri-SA believed that expropriation should only be used as a last resort where negotiations fail. There needed to be a clear purpose for expropriation. Compensation should never be dependent on the state’s ability to pay. The land owner should always be afforded recourse to the courts to contest both the merits of the expropriation and the compensation amount. Agri-SA opposed the 2008 Bill on the basis that it restricted access to the courts and was not in line with Section 25, 33 and 165 of the Constitution. The Department of Public Works was applauded for the extensive and inclusive consultation process which it undertook on the 2015 Bill, there were significant improvements from the 2008 Bill; however there were still areas of concern.

Claimants should as far as possible be placed in the same position as was the case before the expropriation. The definitions of “expropriating authority” and “public interest” were broad and left a lot of room for uncertainty. The gathering of relevant data was crucial to the calculation of compensation which was just and equitable. Also due regard must be given to the owner’s right to privacy, these should therefore be restrictions on official documents such as title deeds, and all information provided should be kept confidential. Agri-SA welcomed the details outlines in Clause 8 around notice of expropriation and the process involved. Documentation must be provided on how compensation was calculated. However a number of commentators were concerned about expropriation before determination of disputes by courts. With regard to the verification of unregistered rights in expropriated property, she said if the expropriating authority determined that a claim in respect of an unregistered right was invalid, the claimant must be able to refer the matter to a court for determination.

No land owner should unduly benefit from land reform. However no individual land owner should be unduly penalised for something which is in the collective national interest. Land owners should therefore not be under-compensated for their property. Agri SA acknowledged that market value was not the only consideration, however it still has a central role to play in the approach adopted by our courts. Agri-SA views land reform as a national priority which should be funded with general taxpayer money. Individuals belonging to one industry could not be expected to bear the costs of a national priority. Landowners, whose land was earmarked for land reform purposes, must be placed in a position to continue farming elsewhere should they wish to do so. With regard to Clause 12.2 which dealt with solatium, she said property which was taken without the owner’s consent could not be factored in when calculating compensation. Agri-SA proposed that the clause be deleted. Expropriation without compensation was traumatic, causing financial loss, emotional trauma and suffering. Agri-SA proposed that the full 100% of compensation offered be paid to the owner on the date which the state took responsibility of the property. Under no circumstances should an expropriation lead to insolvency on the part of the land owner because the compensation was not sufficient to settle the loan secured by the mortgage bond.

Land was often the farmer’s single greatest capital asset as well only source of income, therefore if the compensation received was significantly less than the outstanding loan this could result in the land owner being more in debt with no form of income to balance the loan. Market-related compensation was therefore very important for the sector. She indicated that international experience showed that expropriation did not always speed up land reform efforts; however it may have a role as a last resort.

Discussion
Dr Groenewald (FF+) said the submission from Agri-SA was not very clear in one respect - it identifies the big problem with the bond holder and the land owner, and yet Agri-SA seems to support Clause 18. He said it was part of the problem that the land owner did not have money to go to court. If the court determined that the owner was liable for the outstanding amount, the owner could go insolvent. Could more clarity be provided on Clause 18?

Mr K Sithole (IFP) asked why nothing was being said about farm workers and their rights. Could Agri-SA unpack its statement on Clause 12? Why was nothing being said about the actual property on the land to which Agri-SA was referring?

Mr M Filtane (UDM) referred to the submission which indicated that due regard should be given to owner privacy; this was a concern because in the previous day’s public hearings Eskom expressed a concern that there were farmers who would not allow people on their farm for negotiations, and this caused serious delays for Eskom. To what extent did Agri-SA assist Eskom in getting access to farms? The submission said payments needed to be made soon after the expropriation; could Agri-SA suggest a period for when these payment need to be made? How would government approach a situation where a farmer has been defaulting on bond payments, who would need to settle the loan amount during the process of expropriation?

Mr S Masango (DA) asked about the unrestricted court access mentioned in the submission. Courts were only approached when there was no agreement on the compensation amount for expropriation. Was the submission suggesting that a court be approached at the start of the expropriation process? The consensus from the submissions heard so far was that parties should avoid going to court as much as possible.

Ms P Adams (ANC) said Agri-SA mentioned that people had a fear of expropriation. She asked what they were doing to alleviate those fears since this legislation aimed to afford members of the public certain rights and privileges. Agri-SA acknowledged it did not want individuals being expropriated to be either enriched or impoverished by the process. The submission stated that "there are strong arguments for compensation to improve the position of those affected wherever possible" and this seemed to be a contradiction.

Ms A Dreyer (DA) according to the submission, the Bill did not inhibit access to courts. Would Agri-SA not agree that it would be better for the state to go to court rather than the expropriatee, given the costs of litigation? She asked for comment on whether the unavailability of "trane geld" (money afforded for the sentimental or emotional attachment to land) would encourage people to actively oppose expropriation in a bid to get the money.

Mr F Adams (ANC) asked whether Agri-SA had an alternative dispute resolution mechanism in place and if not, when such a mechanism would be put in place and if they had the capability to develop such a mechanism. It was important to fully engage before approaching the court system and an alternative dispute resolution mechanism was also very important for organised agriculture. International experience showed that expropriation did not necessarily expedite land reform nor was it the objective of this legislation. He asked Agri-SA to provide proof to the Committee where this had happened. 

Ms Crosby responded to the concern around market value and the bond holder, what Agri-SA was trying to do was to emphasize the economic and financial consequences of paying a compensation amount that would be less than the market value. Even though the Constitution allowed for this, there were still negative consequences especially for the bond holder. The other point which the submission was trying to make was that of the debate which took place between Agri-SA and Nedlac on whether there should be statutory preference in favor of the bond holder or should the contractual agreement between the parties sustain the agreement? Agri-SA did not see the need for a statutory intervention. She agreed farm workers were indeed a very important part of the industry; Agri-SA however did not represent them. The Bill did make provision for unregistered rights, which are the kind of rights farm workers would have. Farm workers rights were therefore protected in the Bill.

Mr Omri Van Zyl, Agri-SA Chief Executive Officer, responded that in terms of the Extension of Security of Tenure Act which governed farm workers, farm workers would be considered during the expropriation process. There were about 17 000 farm workers in South Africa and their rights need to be protected.

Ms Crosby said the way in which Agri-SA interpreted Section 25 was that the aim was to get to a just and equitable end result, taking into consideration all factors. On the question about property on land, she said Agri-SA was primarily concerned with land issues. With regard to owner privacy, she said Agri-SA had a very good relationship with Eskom and there was protocol involved for access to farms and this protocol outlined the rules and procedures to be followed for access to the owner’s farm. Eskom however could also approach the local farmers’ association if a particular farmer was being difficult. However it was important to note that not every farmer was a member of Agri-SA. On the question of whether Agri-SA was proposing a specific time period she said the Bill did provide that 80% of the compensation be paid on the date of expropriation, and the remaining 20% then be paid as soon as possible. There was also provision for interest which accumulated on the 20%. There were no specific time periods. She said contracts would provide for how to deal with a farmer who has been deliberately defaulting on bond payments.

Mr Filtane asked if government needed to consider outstanding bond payments as part of the value of the compensation.

Ms Crosby said all parties needed to act reasonably; it would therefore be surprising to see a situation where a farmer purposely defaulted on bond payments. But banks would also not allow for such a situation to take place

Mr Van Zyl responded that the matter would be based on commercial terms and if there were any outstanding amounts, these would be taken into account in the transactions between the bank and the farm owner.

Ms Crosby responded to the question on access to courts to challenge the validity of the expropriation, saying this was important. The Bill was a procedural Bill, it did not grant any new powers of expropriation, the actual power to expropriate was granted in other statutes. However if this power was exercised in a manner which was not according to legislation, it could be challenged. She said Agri-SA was trying wherever possible to educate people about expropriation. Expropriation was not about “land grabbing” - there was compensation involved. On compensation, she said no party should be enriched and no party should be impoverished, however additional payments for things such as trauma could be paid out over and above the equitable value. Consequential losses also need to be taken into consideration.

Mr Van Zyl said Agri-SA communicated these points because they had been very well thought through and researched in all provinces and in all districts.

Ms Crosby responded to the question on access to courts and the prohibitive costs of litigation, she agreed that the costs of litigation were indeed a concern. Agri-SA was therefore proposing that the state should take the matter to court rather than allowing the land owner 60 days to litigate. The costs however was something which would always remain; there should therefore be some assistance from the state in this regard. She said the solatium would influence people to hold out for more money; the amount was a fixed percentage of the actual compensation. With regard to the international experience, this information could be made available to the Committee at a later stage if the Chairperson allowed.

Mr Van Zyl said Agri-SA has done a lot of research in India and in Chile on expropriation and this information would be provided to the Committee.

Ms Dreyer said compensation should cover the entire mortgage loan, it was there to ensure that farm owners were not left destitute. According to the Banking Association of South Africa, there was a risk of interest rates going up and banks being less inclined to provide loans to Agri-SA, how would this impact on agricultural loans?

Ms E Masehela (ANC) asked for clarity on the point in the submission which stated that compensation should not be dependent on the state’s ability to pay; what did this mean? The submission was silent about people with unregistered rights; how would they be taken on board during the expropriation period to ensure that they were not taken by surprise?

Dr Groenewald said he was not satisfied with Agri-SA's response and wanted more clarity. Their response, in terms of clause 18 stated that an agreement should be reached between the owner and the mortgage holder, usually the bank. However, if they went to court the case would be between the mortgage holder and the owner and the state really did not have anything to do with that, because they stated that no statutory proposal would be made in this regard. He asked, alternatively, if Agri-SA wanted it to be read in terms of clause 8 that determined that the state should bear the legal costs in case of a dispute. There was no concrete proposal to solve the problem. They have identified the problem that if an owner got compensation less than or even on par with the market value and was not able to cover the mortgage, the owner would be held liable for the outstanding amount. It was extremely unreasonable, especially to the owner. He differed with the statement that had been made that this legislation had nothing to do with land reform This legislation definitely related to land reform, because President Zuma had previously stated that it dealt with the ineffective  "willing buyer, willing seller" principle..

Mr Filtane said the Committee recently went on an oversight to KwaZulu Natal, were the plants on the farm were also taken into consideration as part of the farm during the evaluation of the land?

Chairperson Martins said it would not be possible for all the questions raised to be responded to in the session.

Ms Crosby said Agri-SA could respond to some of the questions in writing if the Chairperson permitted.

Chairperson Martins said the presenters should respond to some of the questions and whatever questions which were not responded to could be submitted to the Committee in writing.

Ms Crosby said a situation where there was compensation for the bond holder and for the owner was ideal. Compensation should be budgeted for accordingly by the state; the expense should not be carried by the individual if the state did not have sufficient funding to pay for the expropriation. She reiterated that the Bill fully catered for the rights of workers and those with unregistered rights. Agri-SA wanted to see the best possible protection for farmers without compromising the financial system. She said restitution was a very complex issue, some of the owners stopped investing in the land due to the uncertainty around the claims on the land. Certain crops however should be part of the compensation.

Mr Van Zyl said it was important to consider the common law principle that R130 billion has been invested by commercial services into farming, and this needed to be taken into consideration.

Deputy Minister of Public Works, Jeremy Cronin, said he appreciated the contribution made by Agri-SA during the Nedlac process, even though the Department did not fully agree with all of it. South Africa was a highly unequal society and equitable access to the country’s natural resources was needed and it would be pursued by the government’s transformational agenda. Poor communities would have difficulty accessing courts which is why litigation would be a last resort. There was no reason for 100% of the compensation not to be paid where possible. He agreed that there could be some challenges with expropriation and administrative justice would need to apply. Also other pieces of legislation would be taken into consideration. He said the Department was very much interested in Agri-SA’s alternative conflict resolution proposal. There were a lot of implications for land reform and the topic was currently a hot issue. One of the problems with the “willing buyer, willing seller” approach was that there was no rational system in place and a more rational approach to the country’s developmental agenda was necessary.

In Expropriation, How to Avoid Paying for Land Twice - AIVSA Professional Valuer
Mr Peter Meakin, AIVSA Professional Valuer, said the Constitution was in conflict with unaffordable land. Section 25 (5) indicated that the state should make reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis. Section 237 indicated that all constitutional obligations should be performed diligently and without delay. The user of the land should not be allowed to acquire rights of indefinite duration for single payments. Once land became affordable as Section 25(5) demands then the constitutional rights would be realised. House price increses, a proxy for land prices, are driven by unearned land price rises. Increasing land prices were unearned. The land prices in China, Germany, Hong Kong and Singapore were all one third of the land price increases in South Africa. However if National Treasury will not agree to tax land then the compensation clause in Section 25 should make it clear that the state would not pay land prices when it expropriated.

Clause 12(1) of the Bill should therefore be changed to include: If the land is not being used, no compensation should be paid; citizens have no moral claim to unearned land rents and prices; the market value of the property should exclude any “windfall profits” attached to the land. He said that most of the land which people had was given to them by the previous government with no or very little money paid to acquire the land.

Discussion
Dr Groenewald thanked the presenter for the submission; and said it was a bit extraordinary. Where in the world was the proposed concept applicable? With an annual rent proposed for a residential stand in the country; who would be able to afford such high amounts? What was the world average for land increase in value?

Mr Filtane agreed with Dr Groenewald that the submission offered an interesting perspective. What was the reason for the escalation of prices of unused land? He asked if the submission was proposing that government should not compensate for land expropriation even though people would have been maintaining the land for a number of years.

Ms Masehela referred to Mr Meakin's comment that he owned land and asked when Mr Meakin obtained his land.

Mr Meakin said Hong Kong was a primary example of this method. Individuals in Honk Kong could not own entire pieces of land, the majority of the land was owned by government. He said there should be no compensation given for unused land.

Mr M Dlamini (EFF) thanked Mr Meakin for his honesty around the fact that land which was mostly owned by whites in the country was taken without pay by the apartheid government from a number of marginalised inhabitants, and that during expropriation that land should not be compensated for.

Mr Meakin said the value of land always go up with time.

Deputy Minister Cronin commented that the useful part of the submission was around market value and the compensation issue. Market value however was just one indicator of what should be taken into consideration when it comes to compensation.

South African Property Owners Association (SAPOA) submission
Adv Gerrit Grobler, appearing for SAPOA, said that in broad terms the structure of the Bill conforms to international standards and the Department is to be commended for the Bill as it stands. It is workable, practical and constitutionally sound. However there are a few outstanding matters which still needed to be attended to.

With regard to Clause 1 which dealt with the definition of 'court', he said the definition should restrict jurisdiction to the High Court, and only the High Court where the property was situated. The High Court needed to determine compensation for all instances of expropriation. He explained that the 1975 Expropriation Act provision was made for a special compensation court to be presided over by a magistrate in cases where the compensation amount fell within the jurisdiction of the magistrates court. However this provision was later deleted from the Act because compensation was a highly technical and mostly fell outside the experience of magistrates. Re-introducing magistrates courts would create the same difficulties. The argument that litigation costs are in a magistrates court are less than those in a High Court, can be met by including in Clause 21(3) a sub-clause (e) to the effect that should compensation be determined in an amount which falls within the jurisdiction of a magistrates court, only costs taxed on the magistrates court scale may be allowed.

The provision of 60 days from the notice of expropriation was oppressively short. It could not be expected that an expropriatee would have his property valued by a valuer and have prepared a claim for compensation within 60 days. A period of 6 months was recommended; also with a provision that a court could extend the period on application should the expropriating authority not be willing to do so in terms of Clause 25. What was absent from Clause 21 of the Bill was a provision that the parties could agree to have the compensation amount determined via arbitration. Although arbitration was more expensive than court proceedings, it was much faster. Court rolls were simply overloaded. The wording of Clause 21 as it stood could be interpreted as excluding arbitration in respect of dispute resolution of the compensation.

Discussion
Mr Masango said one of the submissions from the previous day suggested that the Land Claims Court rather than the High Court should be approached for compensation disputes. Was SAPOA agreeing with this suggestion that working with the Land Claims Court would speed up the process? With regards to arbitration, how would people in the rural areas be assisted, especially when it came to valuating the land and their property?

Dr Groenewald said the submission was contradictory. It was suggesting that the route of arbitration be explored even though it was more expensive. Who would be carrying the burden of these costs?

Mr M Ndlozi (EFF) said the Economic Freedom Fighters had a deeper interest in the questions around historical injustice as it pertained to land. SAPOA represented land and property of capitalists, some of whom were the main beneficiaries of the policies of a criminal government. This moral issue needed to be the point of departure. The majority of black people in the country did not own land. SAPOA needed to have a conversation around the criminal acquisition of land; what was SAPOA’s take on this? Historical redress was needed throughout the country. He asked whether there was no other way to determine the value of the land other than through market value. The market value could sometimes be very distorted. Also why should the government provide compensation which was in line with market value when the land under discussion was taken and distributed illegally by the apartheid government? Why should these owners be compensated? Apartheid was a crime against humanity, and there were a number of forced removals during that period.

Mr Sithole said according to the submission the documentation of information was a highly complex matter; could more clarity be provided on this?

Mr Masango asked about magistrate courts not being the court to approach for compensation disputes. All such matters would need to be referred to the High Court. Would this not cause further delays administratively?

Mr Grobler responded to Mr Ndlozi’s concerns and said if a property owner paid full value for the property, whether in 1960 or 1975 and the property is taken away, then the owner would lose the market value which he or she had paid for the property. If the land was acquired for nothing, then this would be taken into consideration in terms of Section 25 of the Constitution which looks at the history of the acquisition. The comments made by Mr Ndlozi were indeed coloured by his ideologies and Mr Grobler was not a politician; he therefore would not be engaging Members on issues of ideology. The Constitution outlined that compensation for expropriation should be paid.

He responded to the question about the kind of assistance which should be made available for people who did not know the value of their property. A valuator or lawyer could work with such individuals without asking for any fee. Bar councils of all the various high courts had specific requirements for pro bono work and every advocate needed to provide statistics on the free work they have done in a year. He said whether arbitration was going to cost more was a question of choice. Arbitration was an efficient instrument which should not be left out as an option, but according to Cause 26 a court must be part of the proceedings. With regards to other dispute resolution alternatives, that would be a wonderful idea. Mediation has been incorporated in various statutes? However the question of costs was always going to surface. Provision could therefore be made that the state finances mediation. On the use of the Land Claims Court, he said his experience was that from the time the land commissioner got the claim to go to court, one judge was allocated to the matter. The land claims court would be best suited to expropriation and restoration matters. On compensation, historical evaluations would be taken into consideration.

Mr Ndlozi said his statement was not merely a political ideology; it was a moral question which the Constitution also acknowledged. Colonization and apartheid were crimes. For example, Eskom wants to build power lines and during their submission to the Committee they indicated some of their frustrations with land/farm owners who did not want to negotiate. Some of these delays on projects have taken up to six years. Eskom wanted to build power stations for public purpose. Why should Eskom pay a market value for a public purpose?

Mr Dlamini reiterated the fact that SAPOA represented capitalist interests.

Ms Vuyokazi Ngcobozi, Parliamentary Legal Advisor, said the Committee needed to be mindful of Section 25(2b) which says that if parties did not agree on compensation, they should approach a court. People could not afford to take the route of going to court because arbitration was very expensive, but this was a right which was provided for in the Constitution. Alternative approaches however should be considered.

Mr Grobler said the Bill was a good piece of legislation which needed a few technical adjustments. Magistrate courts were specifically good in matters relating to criminal law and not to expropriation. He agreed however that arbitration would not serve the bottom end of the market.

Deputy Minister Cronin thanked the presenters for providing clarity on the jurisdictional areas of the High Court. He said from a practical point of view it made sense to begin assessing things from a market value point of view. On the Eskom matter, he said the problem with Eskom was that the entity was pursuing the “willing buyer, willing seller” approach and a couple of landowners held out to drive up the desperation of Eskom. The Bill was therefore important to ensure compliance with the Constitution.

Cape Chamber of Commerce and Industry submission
Ms Janine Myburgh, President of the Cape Chamber of Commerce and Industry, said the Chamber and by implication, the business sector was extremely concerned at what appeared to be an ill-conceived legislative programme. The proposed legislation would diminish people’s rights such as fixed and movable property rights and intellectual property rights. The key problem was with the redrafting of the Expropriation Act of 1975. The Chamber agreed that the legislation needed to be amended in order to bring it in line with the Constitution; however the proposed changes went too far.

The present legislation said that property would only be expropriated for public purposes however the new version extended expropriation to “in the public interest”. Also the existing legislation said only the Minister of Public Works would be able to expropriate property after the Minister has obtained a court order. The proposed legislation extends expropriation powers to all organs of state and no court order was required. In addition, the formula for compensation has changed. The existing legislation indicated that the state should pay the market value of the property and the state should pay damages and a small solatium. Currently the state must pay at least 80% of the agreed price when it took possession of the property and the state was legally bound to pay interest. The new Bill was unclear on the interest payments. Market value was not guaranteed and the state would pay any value it deemed fit. The state was also not compelled to pay for damages, compensation for loss suffered or solatium.

In terms of the National Water Policy Review, the Minister was authorised to prohibit the transfer of water rights. The new legislation placed farmers under threat of expropriation, putting them in no position for a fair bargaining process. Expropriation would therefore inevitably lead to abuse without any real checks and balances. Another area of concern was that the new Land Holdings Bill limited farmers to 12 000 hectares or two farms; this was a further intrusion on property rights and a form of forced expropriation. The Bill made no sense in terms of productive agriculture. The 2015 Expropriation Bill in its current form allowed for the expropriation of immovable, movable and intellectual property, all in the name of “public interest”. The Chamber was therefore calling for Parliament to rather amend the 1975 Expropriation Act rather than replace it.

Afternoon session
Discussion
Mr S Masango (DA) criticised the Cape Chamber of Commerce and Industry for developing an extensive list of concerns without providing any solution.

Mr S Jafta (AIC) similarly argued that individuals who criticised the present Bill ought to have constructive soltions. He referred page 1 of the submission that refers to ‘Constitution diminishment’ and asked for clarity on this. He argued that the Bill’s purpose was to redress the imbalances of the past and particularly to address the situation of landless citizens. He thus enquired how a Bill that seeks to promote greater equality could be contrary to the South African Constitution that is underlined by the same principles. He referred to page 2 of the submission and asked for additional details about the threatening of investors.

Mr M Filtane (UDM) stressed that the CCCI is a renowned institution, from which he expected a submission of high standard. However he had been fairly disappointed by Ms Myburgh’s intervention. Page 11 of the submission was lacking concrete references. He urged the CCCI official to detail the origins of her findings. With regards to page 12 and the highlighted need for better housing, he argued that such a task fell under the government’s mandate, which was hence crafting the current Expropriation Bill. He thus highlighted the incoherence of the CCCI’s criticism.

Ms E Mashela (ANC) described the submission as highly disappointing. She enquired whether CCCI had even read the Bill. She stressed with regards to page 1 that the observer had failed to appraise the changes that had occurred to the new Expropriation Bill. She quoted the fourth paragraph of page 3 of the submission, which states that the Bill ‘goes too far’. She rated this statement as poorly formulated, and enquired about its actual meaning. She quoted Ms Myburgh who had argued that the Bill was unclear on the matter of interest payments, yet clause 13(1) of the Expropriation Bill provides one with an extensive appraisal of the matter.

Mr M Dlamini (EFF) described the Bill as addressing issues of radical transformation and constitutional alignment. The CCCI president was representing people who directly benefited from the previous government’s policies, referring to the pre-1994 era. He argued that the majority of land in the country was privately owned, and represented by those such as CCCI members. He wondered how government intended increasing its revenues in a manner significant enough to sustain the process of land expropriation and its underlying feature of compensation. The CCCI submission and the Expropriation Bill were in obvious contradiction.

Mr M Ndlozi (EFF) described the submission as appalling. He told Ms Myburgh that she had not even read the Bill, while he enquired which Constitution did CCCI’s findings rely on. He repeatedly assessed the submission as embarrassing. He told Ms Myburgh that her organisation was alarmist, and which dramatically misread and miscoded the present Expropriation Bill, thus scaring investors away. He enquired whether CCCI had ever fought for any rights and for the advancement of freedom in South Africa. He argued that if land was to be expropriated by government for the purpose of producing energy, the owners of these assets should not receive any compensation. He referred to section 4 of the Bill, which addresses the matter of land reform. He contextualised this aspect of the policy by explaining that it corresponded to the land that was stolen from black people. He added that white chambers such as CCCI had directly benefited from this historical trend, while they today sought to maintain the deeply imbalanced status quo. He asserted that these white chambers do not defend the South African Constitution.

The Deputy Minister of Public Works, Jeremy Cronin, said that this input by CCCI was an embarrassment and a waste of time for the Committee. He expressed his view that Ms Myburgh should not even be allowed to respond to these different criticisms, for her organisation clearly did not read or understand the Bill. He asked how could the Bill be unconstitutional when it directly enforced public interest. He agreed with the EFF that CCCI had adopted an alarmist attitude. He stated that the wide majority of stakeholders who had intervened in the public hearing thus far, including Business Unity South Africa (BUSA), Agriculture South Africa (Agri-SA) and the Banking Association South Africa (BASA), amongst others, had raised useful and relevant points. He stated his hope that the media would have the intelligence of recovering the enlightened nature of the public hearing process thus far.

He said that the Chairperson should not allow Ms Myburgh to respond to the criticisms.

The Chairperson invited Ms Myburgh to share her concluding remarks, on behalf of CCCI.

Ms Myburgh asserted that atrocities of the past should necessarily be addressed, yet this process could not occur to the detriment of individuals’ rights. She stated that her organisation would agree with the Deputy Minister’s stance, as well as with the EFF’s one. She argued that CCCI just intended on ensuring the constitutionality of the Bill.

She emphasised CCCI’s willingness to be provided with a constitutional understanding of the notion of ‘public interest’, which would enable citizens to effectively rely on courts as referees in matters of expropriation. She criticised the current judiciary process for expropriation as bearing to much uncertainty.

She reminded Committee that 71% of South African land was currently in private hands, which happened to be white hands. She concluded by arguing that the core issue here was to choose wisely how to change this situation and how to compensate individuals who would face the expropriation process.

South African Institute of Valuers (SAIV) submission
Mr Saul du Toit, SAIV professional valuer, described himself and the members of his organisation as technocrats who would provide the Committee and Department with certain important suggestions on the Expropriation Bill. Most of the points raised by previous stakeholders had been of great validity, such as the need to modify the Bill’s time frames. He noted the importance of framing the compensation process with specific dates and deadlines, to ensure the constitutionality of the programme as well as to avoid issues of currency fluctuation by defining the payment of compensation at specific point in time.

He indicated the need to develop parcel surveys, for the current denomination of the Bill with regards to units of use may consist in most cases of several land parcels. He emphasised that land assets should be considered as holistic units, which cannot be divided by the expropriation process, for most of the units thus divided become non-viable and lose their use and value.

Mr du Toit urged the Committee and Department not to leave the notion of value as openly definable, and to align it with market value for purposes of fairness and constitutionality.

He referred to clauses 5(4)(a), (b) and (c), and criticised the broadness of the criteria underlying investigation and gathering of information for purposes of expropriation. He stated that the present wording of the clauses might intrude upon the owner’s constitutional rights. He highlighted in this regard that to the extent that the clauses are retained, there should be a provision that the information and documents given to the person undertaking the investigation, and which are not already in the public domain, must remain confidential.

Mr du Toit addressed clauses 8(5) (a) and (b) which entail that the details of compensation would appear on the final notice of the expropriation. He suggested that these processes ought to occur at the individual level, without necessarily making public the compensation obtained after the different actors’ negotiations. He claimed that if this discretion was not enforced, landowners could rely on data from previous cases and play these off against each other as well as against the state.

He commented that the remaining parts of the submission were merely technicalities, while inviting Members to still appraise the rest of SAIV’s findings.

Discussion
Mr Ndlozi argued that the valuers sector was rather broad and complicated. Prices were often inflated with regards to compensation. He asked how SAIV analysts assessed the price of a given asset, for the purpose of providing owners with a compensation value. He asked about the extent to which historical factors were taken into consideration in the evaluation process by the valuers.

Mr Filtane referred to page 3 of the SAIV submission, and particularly to its subsection 3.5, which required changes to the notion of 'public purpose' as developed in the Bill. He pointed out that SAIV was solely criticising without offering concrete alternatives to the highlighted issue. On page 4, SAIV praised market value as the necessary valuation benchmark. Mr Filtane said that the compensation assessment could not rely only on market value. He emphasised the biased nature of the South African system, pointing out that certain classes of people would greatly benefit from an exclusive reliance on market value.

Mr Masango similarly directed his questioning towards page 4 and the notion of a property’s value. He asked what was implied by the use of ‘without restrictions’ when describing the expertise capacity and accessibility of valuers into the process of land retribution. 

Mr du Toit offered to respond to Members’ concerns by referring to the example of a farm in Elandskloof, situated nearby Citrusdal. He told how the asset once belonged to the Dutch Reformed Church, which decided to put the land on auction in the 1950s. The farm was thus sold, and the local self sufficient community living on the land was scattered over the Western Cape. The expropriation of the farm in 1996 however gave the former local community its rights back and the farm was purchased at a price of R3 million although its value was R4 million. He thus relied on this example to show that if a farm had been acquired on the basis of racial discrimination, this factor ought to be incorporated into the price formulation process.

He then referred to page 3 and subsection 3.5 of the SAIV submission, and confirmed earlier findings which indicated that 'public purpose' had been defined by the Bill in an excessively broad fashion.

He agreed with Mr Filtane who pointed out the impossibility of relying solely on market value for the evaluation of appropriate compensation. He was however a technocrat, relying on pragmatic indicators, particularly in the light of clause 25(3) of the Bill, on the basis of which one might argue that the state could lack efficient means of price assessment.

He concluded by sharing with the Committee that he was the only white male in his office, thus confirming that the socio-economic situation in South Africa was changing, and he praised such evolution.

Mr Masango argued, in accordance in some of SAIV’s findings, that if the Bill was not changed it would remain unconstitutional.

Mr Ndlozi stressed that certain issues were often associated with independent valuers. He described a repetitive trend of collusion between landowners and valuers. He vividly claimed that no land should be paid for as a result of history.

Mr Dlamini referred to subsection 3.4 of the SAIV submission which criticised the wording of the 'public interest’ definition. He argued that such a definition was underlined by the commitment to redress errors of the past. He asked Mr du Toit whether he was acknowledging the existence of past inequalities, and why would he seek to remove the Bill’s conceptualisation of 'public interest'.

Mr du Toit acknowledged that public interest was in the Constitution, while he did not have a concrete proposal to suggest a national definition of the concept. He emphasised once again his acknowledgement of past inequalities and of the urgent need to address such a situation through transformation.

He conceded that certain private valuers indeed tended to develop a certain collusion with their farmer clients. He hence praised the enhancement of controls and reports over the industry, while he maintained the importance of private valuers at the national scale.

Mr Ndlozi argued that land was common property. He asserted that no one should pay for land, for every land asset should be nationalised in South Africa. He added that no one had created land.

Mr Filtane interrupted Mr Ndlozi to highlight in a contrary fashion that God had created land. He addressed the Chairperson and enquired whether it was wise to allow such debates in this very meeting.

The Chairperson indicated that this was neither the place nor the time for Members of the Committee to have a debate of religious nature.

Mr P Groenewald (FF+) recommended that Members of the Committee should cease asking ideological questions to the different presenters.

He referred to page 12 of the submission and sought confirmation that, according to the Bill, a landowner who happened to lose his case of appeal on the expropriation would not receive any compensation for his judicial expense. He asked whether such a process was not too detrimental to landowners.

Mr du Toit asserted that land was a limited resource and not a commodity, which would not require to be addressed by a Bill if it was to be totally nationalised as suggested by the EFF.

He responded to Mr Groenwald’s concerns on the matter of compensation and similarly criticised the Bill. He argued that poor people would not dare take the risk of engaging in legal action, while courts were often highly intimidating for most citizens.

The Chairperson stated this situation was not normal and that South African citizens should not be intimidated by the judicial power and courts in particular.

Deputy Minister Cronin claimed that the delegation from the Department of Public Works (DPW) had paid great attention to the submission and would take up its different features and recommendations for discussion. He thanked Mr du Toit for his constructive input.

He stated that it was the Department’s role to ensure the accountability of valuers, and thus thanked Mr du Toit for raising the issue, which would be subject to internal analysis. Similarly other concerns that arose during the submission and the discussion would be looked at.

Deputy Minister Cronin agreed on the relevance of the market to the process of value estimation, while it was not the only criteria, particularly in the light of non-quantifiable features which also ought to bear an impact on compensation’s evaluation. He referred again to the expansion of the Gautrain between Rosebank and Sandton which had increased the market value of assets in the area.

He then addressed the ideological debate sparked earlier by Members of the Committee and suggested that he would offer to the EFF a copy of Grundrisse by Karl Marx, in which Marx explains how labour actually allocates a certain value to land.

The Chairperson thanked Mr du Toit for his constructive input.

South African Geomatics Institute (SAGI) submission
Mr Peter Newmarch, SAGI president, provided Members with a visual appraisal of the construction impact of the Gautrain project. He displayed photos of the Gautrain project and its spatial planning implications.

He explained that most cases of expropriation were not fully completed in South Africa, pinpointing partial expropriation as one of the most significant issues of this process. He moreover indicated that planning offences were now punishable, since 1st July 2015, with sentences lasting up to 20 years, indicating a shift in importance of the matter. He indicated for instance that developers would be prosecuted in the case of exceeding a given land’s coverage factor, which he broadly described as the potential for spatial development of a given land asset, including the height that a potential construction can reach.

He argued that the Department should include this notion of coverage factor in the conceptualisation and evaluation of landowners’ compensation.

He emphasised anew the South African expropriation reality, characterised by its many processes and spatial record that had been either partially or not completed at all. He exemplified this weak policy implementation with the cases of Gauteng and Kwazulu-Natal, for the provinces were riddled with such cases. The state could not possibly alienate land to a third party, while restating the major problem which resulted from partial cases of expropriation.

He argued that title deeds needed diagrams to be properly assessed, thus deducing that partial expropriation would also require diagrams. This ought to highlight the poor efficiency of uncompleted processes, which also seemed to create uncertainties and bear a negative impact on the sector as a whole.

Mr Newmarch suggested that the Expropriation Bill should delete all references to 'sketch plans', and replace these with 'professional land surveyors diagram'.

He concluded by indicating that textual data could appear as somewhat outdated, particularly in the cases of land planning. He argued that the present era was the one of ‘Google Earth’ whereby the visual aspect of a submission bore a more determinant impact, thus enhancing the relevance of his input.

Discussion
Mr Dlamini asked with regards to the pictures of the Gautrain whether the state had only expropriated certain land assets in this case. He stressed that issues related to land were ultimately complicated, while reminding one of South Africa’s urgency to address the issues of the past and their omnipresent burden. He critically stated that the many technicalities highlighted in the submission would neither stop the expropriation process, nor hinder the development phenomenon.

Mr K Sithole (IFP) addressed Mr Newmarch’s statement that many farms in Kwazulu-Natal had not been fully expropriated and were thus partitioned today, seriously hindering their output in all regards. He enquired on where the records for these cases were.

He then stated that the submission relied on the visual aspect of the situation, yet pinpointed the lack of details on the compensation that had been received by individuals whose assets had been expropriated as displayed on the SAGI’s visual submission.

Mr Masango described the submission as highly technical and yet also enlightening.

Mr Filtane stressed his hopes that these submission’s findings would automatically be incorporated into the crafting of the new regulation.

He stated his appreciation of Ms Newmarch’s input, while conceding that Members of the Committee had failed to acknowledge the extent to which the present situation was intricate.

Mr Newmarch described his organisation as a downstream player in the political scheme, hereby explaining that it did not bear any actual decision making power with regards to the current Bill and its drafting. He stated that SAGI merely supported the Department with regards to the legal framework of spatial modifications. He insisted that SAGI would neither interfere in ideological considerations, nor would it engage in the actual process of expropriation at the time of its concrete application.

He reiterated that the process of expropriation ought to be systematically completed, even in the face of financial difficulties.

He replied to Mr Dlamini’s concern over the lack of recording of expropriation processes, and stated that such records did exist. He however indicated that the actual situation of land assets which had been only partly expropriated, often as result of financial deficiency, could not be observed on a map for the internal division of certain land was not visually distinguishable.

He concluded by urging the Department delegation to be more specific in the description of the Governmental ranking and officials’ power to delegate certain cases to the Ministry of Public Works.

Deputy Minister Cronin pinpointed the appropriately technical nature of the submission. He acknowledged the importance of aligning the Bill to the Survey Act as well as the Deeds Registry Act. He indicated that the Department would seek legal advice in order to ensure the occurrence of such a legislative alignment.

The Chairperson thanked Mr Newmarch for his contribution to the general debate.

Congress of South African Trade Unions (COSATU) submission
Mr Mathew Parks, Parliamentary Coordinator at COSATU began his intervention by describing the progressive nature of the Bill, while he thanked the Committee for extending the deadlines for submissions. He subsequently expressed his gratitude to witness Deputy Minister Cronin’s presence as well as to be part of the stakeholder consultation process.

COSATU supported the Bill, while he emphasised its key importance to the South African ideological scheme.

He prided his organisation with 1.9 million members, thus justifying that the Bill’s implementation could not result in any form of job loss, otherwise members of the organisation would have emphasised their reluctance to support such an initiative. While the current Act, dating back to 1975, was in the need of constitutional updating, he globally contextualised South Africa’s case by stressing that every country on the planet had some form of expropriation legislation. Hence his strong disagreement with many members of the media, who allegedly compared South Africa to North Korea on the basis of this Expropriation Bill.

He referred to the case of the MalaMala game reserve and the way this case had highlighted the abusive nature of the system, and the need for a ‘neutral and objective mechanism of land value’, as suggested by former Minister of Finance Trevor Manuel.

COSATU agreed with the current Bill’s position on the importance of compensation, while he praised the cognitive inclusion of the land acquisition’s history as well as the nature of its current use. He emphasised that the Bill was, in its present form, in accordance with the Constitution, particularly in its address of the Apartheid legacy and South African historical burden.

While Mr Parks expressed his view that government should never compensate theft, he emphasised that arbitration should be able to take place prior to referring to a court. The latter process was moreover described as long, costly and intimidating. He suggested as a solution the development of an advisory panel on expropriation which would provide actors in a dispute with a comprehensive framework, enabling the development of fruitful negotiations.

He described the recent criticisms directed against the Bill in the media as attacks lacking any foundation. He urged Members of the Committee to vote in favour of the Expropriation Bill.

Discussion
Mr F Shivambu (EFF) stated that he was initially hoping that Members of the Committee and stakeholders would be able to engage in a real political debate, yet he described the discussion as being thus far excessively narrow and technical.

He argued that prior to 2002, minerals in South Africa belonged to the private sector and were approximated a value of R2.5 trillion. This was prior to society decided to accept the government’s custody of such assets.

He rated the land retribution process since 1994 has having dramatically failed. The objective of retrieving 30% of the land by the year 2014 was underachieved, for solely 8% of the South African land had been purchased by government, often along a trend of overspending. He concluded from this reality that the process of buying land was a dead end, failing to address the core of the matter.

He asserted that although the Expropriation Bill ought to maintain its scope of general application, it was in its present form rated as extravagantly mechanical for an excessively broad socio-political issue.

He concluded by arguing in a strongly politicised fashion that a true democracy would be one where the government  is elected as the custodian of the land, and redistributes it to its people, while he urged people of South Africa to vote for the EFF in the 2019 elections.

Mr Filtane shared with Members of the Committee that he was meeting for the very first time a COSATU delegation in the context of a formal parliamentarian discussion. He asked how the Congress intended securing the bill, while it was undeniably failing to secure benefit for its members. He described COSATU as being always on strike and having little influence. He accused the Congress of supporting the Bill in order to please the ANC instead of actually seeking to maximise its members’ interest.

Mr Groenewald referred to page 3 of the submission which recommended that the court shall not play an early role in the dispute resolution process. He asked when should the courts then play a role in the process.

He described the EFF has a far right party characterised by its obsession with the notion of stolen land. He asked in this regard what theft did the party refer to. He suggested as credible answers the theft of land by Shaka Zulu or the initiatives of the British colonial empire.

He argued that if COSATU would seek to nationalise land, it would be making a dramatic mistake, for it would not be able to protect its members form the collapse of the economy that would subsequently follow such a phenomenon.

Mr Dlamini claimed that COSATU should acknowledge that it was now ‘dead and useless’. He described the Congress as the puppet of the ANC and thus indirectly acting in a contrary manner to the Bill. He argued that the ANC was a corrupted party, while workers lived on a daily basis in highly stressful environments.

Mr Masango stated, in the light of the increasingly controversial and offensive stance of the debate, that Members of the Committee should bear in mind that their presence here ought to contribute to the discussion of the Expropriation Bill’s crafting. He urged Mr Dlamini and Mr Groenewald, who had started to exchange most vividly, to postpone such a debate to another day and a different space.

He asserted on a different note that COSATU’s submission was irrelevant to the present Bill. He criticised the Congress for its lack of coherence, asking Mr Parks what would COSATU do once its working class members were removed from their land by means of the Bill that they are presently supporting.

Ms P Adams (ANC) noted that banks had mentioned on the previous day that the present Bill contained certain risks for bond holders and foreign direct investment in South Africa. She asked for COSATU’s stance on the matter.

Mr Parks acknowledged that the debate had entered a politicised and ideological realm. He reiterated that COSATU was composed of 1.9 million members, thus explaining to Mr Dlamini that it was far from being dead, for its force in terms of adhesion was unmatched by any political party in South Africa. He criticised Mr Dlamini’s undermining of the Congress as a grave insult to the working class. COSATU was fully contributing to the multiparty democratic system of the country. He expressed his agreement with Mr Shivambu’s statement that too little progress had been achieved with regards to land reform. He asserted that COSATU could also disagree with the ANC if necessary, while its members were protected by a necessary system of checks and balances. He conceded that the Congress’ evolution was characterised by good and bad times, yet most of its action was internally appraised as satisfactory and bearing a significant impact on the empowerment of the working class. He argued that the Government had provided its members with substantial service and infrastructure delivery over the years.

He responded that the courts would always be there and provide a potential resort for dispute resolution. Parties involved in the expropriation process and willing to contest some its aspects should be able to rely on a cost-free mediation mechanism.

Mr Parks referred to the case of Cape Town’s District 6, which he assessed a good example of land stolen in the 1970s. In a similarly historical statement, he argued that the Land Act of 1913 had set a precedent in terms of land theft. He indicated that COASTU was not in support of compensating owners of land that had been stolen.

The United States and Germany amongst many other nations also had entrenched in their constitution a similar Expropriation Bill, which had prevented their economy from collapsing through time.

He reminded Members of the Committee that COSATU was in the case of this discussion focusing on specific issues rather than political slogans.

He repeated the Congress’ stance of preventing beneficiaries from Apartheid of receiving any form of compensation.

Mr Parks told the Committee that the Finance Union, formerly the South African Society of Bank Officials (SASBO), a member entity of COSATU, had stated that it was not alarmed by the present Expropriation Bill. Most of the workers from the Congress had signed loans for their homes, and COSATU would never threaten its own members by risking the destabilisation of the financial sector, as confirmed by SASBO.

Mr Ndlozi shared his incomprehension that COSATU would not defend its workers’ rights and seek to reclaim the land that rightfully belonged to them. He argue that the notion of stolen land omitted African differences, and did not isolate Zulus from the rest of South African citizens, for it focused primarily on the notion of the criminal nature of the historical process underlying the current repartition of land in the country. Government would never succeed in redressing the past as long as it would keep purchasing land. This necessity for justice and equity was not exclusively about the change of power in 1948 and the white dominion, but rather the South African nation as a whole.

Deputy Minister Cronin reminded the Committee that the Expropriation Bill ought to be a law of general application. He indicated that the Department felt that it benefited from the support of the majority of the population in the pursuit of its current agenda. The different suggestions and remarks from stakeholders and Members would be seriously taken into consideration, including the process of arbitration.

He explained that the Freedom Charter did not mention the potential for nationalising any land and he expressed his hope that the political debate which arose today would not cloud the actual efforts of the Department to develop a most just and equitable piece of legislation.

He claimed his socialist identity and acknowledged that every day, while workers are exploited in South Africa, other people gain from this situation. Although acknowledging the urgency of the situation, he stated that government and the legislature ought to act within the boundaries of the rule of law.

He reminded the Committee that ill gotten gains were not only being accumulated in the past, but also in the contemporary period.

He concluded by stating that ANC Members had sometime expressed certain reservations about the Department’s proposal, thus nuancing the cohesion between the executive and the legislative power in this regard.

Concluding Remarks
The Chairperson thanked the Deputy Minister for his concluding remarks and stated that political parties would be attending party caucuses on the following day. The meeting having already exceeded its original schedule by an hour, the remaining submission was postponed until the next hearings on 4 August. He warmly thanked the stakeholders who attended the meeting and Members for their enlightening input to the conversation.

The meeting was adjourned.