A “Uniform Procedure” for all Expropriations? Customary Property Rights and the 2015 Expropriation Bill

• Jurisdiction: South Africa
• Date: 27 May 2019
• Author: Nina Linda Braude
• Published date: 27 May 2019
• Pages: 68-96

68

A “UNIFORM PROCEDURE” FOR ALL

EXPROPRIATIONS? CUSTOMARY PROPERTY

RIGHTS AND THE 2015 EXPROPRIATION BILL*

Nina Linda Braude

BA PGCE MSc (Dev Mgt) LLB

Candidate Attorney, Baker & McKenzie

1 Introduction

Expropriation for a “public purpose” and in the “public interest ”, subject

to compensation, is sanct ioned by section 25(2) of the Constitution of the

Republic of South Africa, 1996 (“Constitution”). Section 25(2) also provides

that expropriation may only occur in terms of a “law of general application”.

Whilst not a codif ying statute, t he primary legislative instru ment is the

Expropriation Act 63 of 1975 (the “Act”). Recognising the need for a

constitutionally compliant Act, the Department of Public Works has on three

occasions over the past seven years introduced Expropriation Bills.1 The

most recent of these, introduced in the National Assembly on 14 February

20152 and passed in amended form on 23 February 2016 (the “Bill”),3 is the

subject of thi s article.

The 2015 Bill not only aims to comply with section 25 of the Constitution,

but also to give effect to the section 33 right to just ad ministr ative action

by providing “uniformity across the nation” and “procedural fairness”.4 In

* This art icle was written u nder the auspices of t he LandLawWatch project an d as part of the requ irements

of the LLB degree a t the University of Ca pe Town. The views and opi nions expresse d here are the aut hor’s

own and should not b e attributed to the Lan dLawWatch project or the University of Ca pe Town. I am

most gratef ul to my supervisor, Pr ofessor Hanri Moster t, and mentor, Jacques Ja cobs, for their detaile d

comments on d rafts of this art icle. Thanks also to P rofessor Hugh Corder for hi s helpful comments and

Dr Anin ka Claassens who ale rted me to the Int erim Procedu res. Any errors t hat remain are my ow n.

1 D epartment of P ublic Works Expropr iation Bill B16-2008 in GN 440 GG 30963 of 11-04-2008; B-2013 in

GN 234 GG 36269 of 20-03-2013; B4-2015 in GN 63 GG 38418 of 26-01-2015; B4B-2015 as presented to

the Portfolio Com mittee of Public Work s (hereinafte r Bills are referre d to by reference numbe r).

2 Nat ional Assembly C ommitte e of Public Works “Expr opriation Bil l: briefing by M inister & De puty

Minister : Public Works 2015/16 Strategic and A nnual Performance Pla n” (24-03-2015) PMG tps://

pmg.org.za/com mittee-mee ting/20577/> (access ed 16-06-2015); National As sembly Commit tee of Public

Works “Agreement South A frica Bill [B3B-2015] adoption; Ex propriation Bill [B 4-2015]: consideration

of submissions re ceived” (26-05-2015) PMG (accessed

16-06-2015).

3 T his article was writt en based on B4-2015. As of 19 Augus t 2016, B4B-2015 has been passed by th e

National Asse mbly, and the National C ouncil of Provi nces (“NCOP”), howeve r, has not been sign ed

into law by the Pre sident. The primary a mendments have responded t o public submissions calli ng for

the Bill to give effe ct to the section 34 right of fa ir resolution of disputes o r “access to justice”. To this

end, mediat ion procedures have been a dded to the dispute-res olution mechanisms in t he Bill. As these

amendment s concern processes a fter the expropriat ion process is complete, th ey have not altered those

provisions in t he Bill discussed i n this article whic h highlight the Bill’s conce ptual diffi culties and those

processes wh ich must be followed prior to the a ct of expropriation itsel f. In some cases, amend ments to

B4B-2015 have changed clause r eferences in B4 -2015. Where this occurs , both sets of clause nu mbers are

referenced.

4 P reamble to the Bill.

(2017) 28 Stell LR 68

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this regard, it seeks to establish “unifor m procedures to be followed by all

expropriating aut horities”.5 As the Bill’s Memorandum makes clear, the Bill

is also intended to comply with the eq uality clause.6 The question is the extent

to which the Bill is reasonably capable7 of meeting its objectives.

This art icle argues that if the Bill is to effect p rocedural fairness in light of

the requirement of substa ntive equality, it must be able to protect8 communal

land rights and ensu re just admin istrative action in com munal areas.9

Doing so requires adequate protection of customar y land rights. The Bill is

thus evaluated with reference to customary law, traditional leadership and

5 D epartment of P ublic Works Expropri ation Bill B4-2015 Explanator y Memorandum i n GN 63 GG 38418 of

26-01-2015 para 11.1 (“Memorandum”). The Memorandum of B4-2015 has not bee n altered signif icantly.

References to t he Memorandum thus refer to that publishe d with B4-2015.

6 Pa ra 1.2. This object ive does not appear i n the Bill’s Preamble. It was, howeve r, emphasised by the D eputy

Minister of P ublic Works during the Br iefing of the Bill given to t he National Assembly Com mittee on

Public Works (Nat ional Assembly Comm ittee of Public Works “Exp ropriation Bill: br iefing by Minist er

& Deputy Min ister: Public Works 2015/16 Strategic a nd Annual Perfor mance Plan” (24-03 -2015) PMG).

The Memorandum also not es the section 32 constit utional right of access t o information and B4B -2015

now also includes t he section 34 r ight of access to fa ir resolution of d isputes. Fur ther discu ssion of

compliance wit h sections 32 and 34 is beyo nd the scope of this ar ticle.

7 A de cision to exprop riate qual ifies as ad ministr ative action a nd is subject to th e reasonablene ss

requireme nt of the Promotion of Ad minist rative Justic e Act 3 of 2000 (“PAJA”). See M&J Morgan

Investment s (Pty) Ltd v Pine town Municipa lity 1997 4 SA 427 (SCA); Erf 16 Bryntir ion (Pty) Ltd

v Minister of Publi c Works 2012 JOL 28329 (SCA); AJ van der Walt Constitutional Property Law (2011)

501. The phrase “rea sonably capable” expres ses this requi rement of objective reas onableness.

8 “ Protection” of rights th roughout this art icle refers to the obligation plac ed on the state by section 7(2)

of the Constit ution to “protect” rig hts contained in the Bi ll of Rights - including pro perty rights. More

particu larly in the context of sec tion 25 of the Constitu tion, the principle of p rotection of proper ty rights

refers to the oblig ation on the state to g uard against a rbitrary dep rivation and unlaw ful (uncompens ated)

expropriat ion. The latter is ex pressly to be provided for t hrough a “law of gener al application” ie that t he

Bill which is the su bject of this article. Given th e constitutional defi nition of property which i ncludes

both common law and cu stomary pro perty rig hts, expropr iation legislatio n should guard ag ainst arbitr ary

deprivation a nd unlawful (unc ompensated) expr opriation of customa ry as well as common -law property

rights. The u nderlying problem dea lt with in this art icle is that whilst both com mon-law and customa ry

propert y rights and intere sts are constitut ionally guaran teed (equal) legal protec tion, the nature of th ese

sets of rights a nd interests differs i n ways which require equitable but n ot necessarily identical for ms

of legal protect ion (through both modes of com pensation and the asso ciated due process). Part 6 of t his

article int roduces a discussion of equ itable treatment of cus tomary propert y rights by considerin g how

“procedur al” (or administrative) equa lity may achieve such protect ion. Procedures for identi fying the

nature of prop erty rights and the hold ers of such rights are regard ed as logically prior to mecha nisms

for determi ning the nat ure and amo unt of compensa tion to be awarde d (whether throu gh monetar y

compensat ion or otherw ise). The paradig m shift cal led for in consider ing the in itial stages of t he

expropriat ion process raises signi ficant questions about how t o address the final st age of determining

compensat ion. Such questions req uire furt her research and a re beyond the scope of thi s article.

9 “C ommunal la nd” is land held by a coll ective and und er the author ity of tradit ional leader ship,

Communit y Property Associa tions or Trusts. See fur ther Departme nt of Rural Development and Land

Reform Communal L and Tenure Policy 23/24 -08-2013 (copy on file with au thor) (“CLTP”). T his article is

concerned p rimarily w ith land under t raditional lea dership, which ma y include Trust land . See B Cousins

“More than soc ially embedde d: The Disti nctive Chara cter of ‘Commun al Tenure’ Regimes in S outh

Africa and it s Implications for Land Policy ” (2007) 7 Journal of Agrarian C hange 281 284-285. Such

land is predom inantly rur al and likely to be subje ct to rules of custom ary tenure. T here is, however, wide

variation i n the histor y and pract ice of land-holdi ng in these ar eas which make s generalis ation diff icult. As

with all ter ms used in relation t o customary law, the t erm “communa l” carries problem atic connotat ions.

It can overemphas ise common int erests and sh ared liveliho ods at the expe nse of underst anding the

power relationsh ips within “commu nal areas”. See WJ Du Plessis “Afr ican Indigenous Lan d Rights in a

Private Ow nership Paradigm” (2011) 14 PELJ 45 52; C Himonga “Taking t he Gap – ‘Living Law Land

Grabbing’ in t he Context of Customar y Succession Laws in Souther n Africa” (2011) Acta Juridica 114

118. See in general regard ing the problem s of terminolo gy TW Benne tt “Terminolog y and Tenure in

Customar y Law” (1985) Acta Juridica 173-187. Because Communit y Property Assoc iations (defined in

the Commun al Property A ssociations Act 28 of 1996) h ave registered ti tle, they are not cons idered in this

article.

A “UNIFORM PROCEDURE” FOR ALL EXPROPRIATIONS? 69

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