Rushed EWC Bill is ‘political suicide’ – IRR

Gabriel Crouse of the Institute of Race Relations says of the Expropriation Bill, passed at record pace on Wednesday by the National Assembly: ‘The ANC is committing political suicide, but it could bring the country down with it. In a free and fair election, the ANC will be hammered for letting vengeful EWC trump the common urge to go forward. The best hope for the ANC and the country is that the NCOP comes to its senses and rejects the stunningly unconstitutional EWC Bill.’ Watch this space… This statement is republished courtesy of the Daily Friend. Sandra Laurence

EWC bill poses threat to SA – IRR

Staff Writer

For the second time in as many days, the Institute of Race Relations (IRR) has turned to the National Council of Provinces (NCOP) to speak up for the national interest and stop bad law-making; this time, by rejecting the fundamentally corrupt Expropriation Bill, passed at record pace yesterday by the National Assembly.

The IRR made an identical call on Wednesday in the case of the Land Court Bill – passed by the National Assembly with similar haste – which the Institute warned was a direct attack on the independence of the judiciary, and whose clauses stood to have a wide-ranging impact on land disputes and all eviction challenges in urban, semi-urban and rural situations.

Its call yesterday focused on the law that will usher in Expropriation without Compensation (EWC).

In a statement, the IRR points out that the Expropriation Bill was passed by the National Assembly at record pace on Wednesday night, having only been signed off at committee level a week earlier, ‘despite its posing an existential threat to South Africa’s prosperity and potential for economic growth’.

‘In its formal submissions, as well as in thousands of media engagements, the IRR has shown that EWC violates the Rule of Law, the Bill of Rights, and any basic test of rationality. In opening Wednesday night’s Parliamentary debate on the EWC Bill, Minister of Public Works and Infrastructure Patricia de Lille described such warnings as “alarmist”. This is for South Africans to judge.

‘The EWC Bill allows fixed property to be subject to EWC if “the owner’s main purpose is…to benefit from appreciation of its market value”.

‘The EWC Bill also allows property to be subject to EWC if the owner is “failing to exercise control over it”. In other words, if one’s property is invaded then one is no longer exercising “control over it” and EWC may be triggered. This is particularly concerning as land invasions are increasing dramatically, particularly in the Western Cape, where public records have been made available.

‘The EWC Bill has an open list of “relevant circumstances” in which the state may seize property without compensating an owner that has committed no crime. This means there are situations where innocent people’s property can be taken for reasons not yet dreamed up.’

The Institute points out that Julius Malema MP ‘understands that EWC will harm South African economic prospects. In 2018 he said, regarding EWC, “if you are not prepared to take the pain then forget about the land”.

He added: “I hope the Zuma group in the ANC which is supporting this thing … know the consequences. We know the consequences … death is the first price we are prepared to pay. The second price we are prepared to pay for this land is poverty. They will close taps. But if there is a conviction, and not sloganeering and public opinions, then we must be prepared for everything. It’s a war.”’

In contrast, however, the IRR points to public opinion on the matter.

‘In 2020 the IRR commissioned an independent, nationwide, demographically representative survey which included the question: “Do you prefer a political party which promises faster economic growth and more jobs, or one which promises land expropriation without compensation as redress for past wrongs?”

‘15% of white respondents and 15% of black respondents said they prefer EWC. Like Malema, this minority is willing to take the “pain” in order to violate human rights. But 80% of black respondents and 80% of white respondents said they prefer growth and more jobs.’

The Institute points out that the ANC’s electoral support has declined since the mid-2000s, slipping below 50% in last year’s nationwide municipal elections.

‘Yesterday’s vote in favour of EWC, against growth, will only accelerate the ANC’s popular decline. The party has lost touch with its base and is harming the material interests of all decent South Africans.’

Said IRR Head of Campaigns Gabriel Crouse: ‘The ANC is committing political suicide, but it could bring the country down with it. In a free and fair election, the ANC will be hammered for letting vengeful EWC trump the common urge to go forward. The best hope for the ANC and the country is that the NCOP comes to its senses and rejects the stunningly unconstitutional EWC Bill.’

One step closer to undermining property rights in South Africa

FW de Klerk Foundation statement:

Yesterday, the National Assembly adopted the Expropriation Bill and – with that – took a giant leap in undermining the rights of property owners in South Africa. The FW de Klerk Foundation, together with numerous other civil society organisations, voiced deep concern about the renewed legislative assault on property rights, highlighting that the adoption of this Bill would harm agricultural production and food security, future domestic and foreign investment, as well as other sectors of the economy – and consequently put South Africa’s future political and social stability at risk.

The Bill alarmingly allows for expropriation with “nil compensation” in certain instances, which may include where an owner purchases land for resale at a profit and where an owner “fails to exercise control” over the land. According to the Western Cape High Court’s recent ruling in the eviction of Bulelani Qolani, owners might be deemed to have lost control of their land once an illegal occupier has gone beyond “merely putting pegs in the ground”. They would then require a court order to evict the occupier under the Prevention of Illegal Eviction from Unlawful Occupation of Land Act. The potential assault on property rights is rounded off by the Unlawful Entering on Premises Bill – which offers occupiers the defense that they “reasonably believed that they had title to or an interest in the premises that entitled them to enter the premises”. 

Section 25 of the Constitution makes provision for expropriation in the public interest – which specifically includes land reform. However, compensation must either be agreed upon by the affected parties or approved by a court in a manner that reflects an equitable balance between the public interest and the interests of the owner. The recent adoption of the Land Court Bill poses another threat to property rights as it seeks to establish a permanent and specialist Land Court with the same status as a High Court to preside over all matters relating to land disputes and eviction. It also seeks to appoint judges based on racial and gender demographics, assisted by two ‘assessors’ – appointed by the Minister of Justice and Correctional Services – who may overrule judges in adjudicating “upon any question of fact”. This ‘court’ would be an expropriated owner’s only recourse.

The attack on property rights doesn’t end there: the Bill is intended to deal with the expropriation of all forms of property – not just land. This is evident from its accentuation of the section 25 definition in its preamble that “property is not limited to land”; from several clauses in which the Bill refers to “expropriation of land” as only one of the facets of potential expropriations; and from a specific reference to the expropriation of “intangible property”. This Bill might empower national, provincial, and local authorities to expropriate agricultural land for the purposes of land reform; private residences to achieve equitable housing goals; or privately held shareholdings in companies in pursuit of the government’s goal of imposing demographic representativity in the private sector.

The FW de Klerk Foundation remains resolutely opposed to expropriation without compensation, and reiterates that the Bill – insofar as it contravenes section 25 of the Constitution and the rule of law – is unconstitutional and should be abandoned together with all initiatives and actions aimed at undermining the property rights of all South Africans.

Land reform and the expansion of property rights to all South Africans are of the utmost importance. The failure of land reform thus far must be ascribed primarily to the incapability of the government departments involved in the administration of land reform, and to corruption. Contrary to National Assembly Public Works Committee Chairperson, ANC MP Nolitha Ntobongwana’s assertion that “this Bill will allow government to address the land question and bring dignity to our people”, the FW de Klerk Foundation asserts that by working within the parameters of Section 25 and the mechanism it provides for “just and equitable” expropriation, government could speed up land reform substantially and extend property rights to all South Africans.

The Foundation will continue to oppose this Bill as it moves before the National Council of Provinces and any other laws that contravene property rights as they are enshrined in the Constitution – laws that seek to abridge the rights of property owners and vest them in the state without any proper engagement with such owner or offer of reasonable compensation.

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