When it comes to land matters, advocate Tembeka Ngcukaitobi knows whereof he speaks — after all, he wrote the book.
A member of the Joburg bar for 15 years and an acting judge in the land claims court, his authoritative Land Matters: South Africa’s Failed Land Reforms and the Road Ahead, was published by Penguin Random House in 2021.
His views have been in great demand since President Cyril Ramaphosa signed the Expropriation Act last week. The legislation, with its contentious clause providing for “nil compensation”, passed in both houses of parliament in March last year.
Ngcukaitobi tells the FM: “It’s a neutral bill. We have to make the distinction between symbolism and substance.”
Expropriation has been part of South African law for at least 100 years, he says. It enabled the apartheid government to build many roads, dams and railways, and to create the “homelands”.
The previous legislation dates from 1975 and was deemed unconstitutional; the new act seeks to remedy that.
What is key is that the property rights enshrined in the constitution have not been tampered with, says Ngcukaitobi.
“For the most part, it is a duplication of the old act. The difference lies in the compensation.” The new law introduces “just and equitable compensation”, instead of the “willing buyer, willing seller” principle in the old law.
He cites an example of the Xolobeni community on the Eastern Cape’s Wild Coast, where Australian prospectors discovered titanium and other minerals. In his view, this community deserves more than market value from expropriation, and a “just and equitable” value should be applied.
There are already at least 200 pieces of legislation that allow for expropriation, says Annelize Crosby, head of legal intelligence at the Agricultural Business Chamber of South Africa.
The Expropriation Act lays down the procedure the government must follow to acquire land “in the public interest” and for “public purposes". Examples would be a minister expropriating land to build a dam, or to allow Eskom to erect transmission lines — an issue the power utility raised during parliamentary hearings on the legislation.
The process in the new law is in line with the constitution and has two stages: the state outlines its intention to expropriate the land, followed by consideration of compensation.
Where it gets tricky, says Crosby, is the “nil compensation” option, which can be challenged in court but at the cost of the property owner.
This is also at the heart of the DA’s disagreement with the act. The party has lodged a dispute with the ANC, its partner in the GNU, over Ramaphosa’s signing of the legislation.
“The political classes are totally aligned on their devotion to private property. This act is not harmful
— Tembeka Ngcukaitobi
The DA argues that the act contradicts itself on who would be liable for the legal costs in the case of a court challenge. To highlight this, public works minister Dean Macpherson of the DA — whose department would implement expropriation orders — obtained a legal opinion that he sent to Ramaphosa, but the president dismissed it.
Ngcukaitobi says it is not the government that will ultimately decide on the level of compensation, but the courts.
“The government can only make a proposal. Both section 25 of the constitution — known as the property clause — and the act say it can be decided by the courts. Only a judge can decide,” he says. “South African judges are independent and are not stooges of the government. The DA and everyone knows this.”
Ngcukaitobi notes, as other legal experts argued in public hearings on the draft legislation, that the constitution itself makes provision for nil compensation, which might in some cases be just and equitable. Nil compensation could apply in instances of abandoned land, state-owned land and land attracting speculative investment, but it is not limited to these categories.
Ngcukaitobi is adamant that the act in no way threatens private property rights. He questions what he calls the DA’s “hysteria”, arguing that its views and the ANC’s on private property are largely aligned, despite their public feuding.
“The political classes [the ANC and DA] are totally aligned on their devotion to private property. This act is not harmful. The ANC has held rigidly to the protection of private property for the past 30 years. This legislation could have gone further, but it did not. Again, the distinction we should make is between symbolism and substance.”
The symbolism is, broadly, the rhetoric used by ANC loyalists in celebrating the legislation as a milestone towards land reform for the previously dispossessed, while some in the DA’s constituency malign it as a quick leftward turn towards land grabs.
The substance, says Ngcukaitobi, is that the act does not disrupt the status quo at all. In addition, argues Crosby, the expropriation process laid down in the act is lengthy and cumbersome, which will make the legislation difficult to implement.
While the word “expropriation” triggers emotional reactions on all sides, from elation to terror, in the context of this legislation, argues Ngcukaitobi, it is utterly benign.
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