THE WAY FORWARD

Simso News

The supreme law of South Africa is the Constitution. Should any other law violate the Constitution it is unconstitutional, and the Constitution can then be amended.

The Draft Expropriation Bill, 2019 published in the Government Gazette on the 21st December 2019, now invites the public to comment on the Draft Expropriation Bill. The public should therefore comment before the 22nd February 2019.

If the supreme law of South Africa then, is the Constitution, then the Constitution surely does not allow for the will of the majority to dictate to the Constitution to expropriate land without compensation. If the will of the majority then dictates to the Constitution in South Africa, the majority might also decide that all the whites in South Africa should be killed which will be an irrational democratic decision but surely not in the interest of the nation at large.

The President of South Africa, Cyril Ramaphosa at the ANC’s 107th birthday celebrations confirmed this week that expropriation of land without compensation was going ahead whether the people likes it or not. According to the President the “monumental” decision was taken at the ANC conference in December 2018 and on the 21st December 2018, the Draft Expropriation Bill, 2019 was published in the Government Gazette during the December festive season when most South Africans were on holiday. Our President therefore already confirmed that the decision of the ANC conference reflects the decision of the majority of South Africa and that decision dictates the Constitution of South Africa.

The best way to question the decision of the majority is to take the majority’s decision upon judicial review. The right to private property is fundamental right to the Constitution itself. The international law position on the expropriation of property owned by foreign nationals is that the expropriating state is under an obligation to pay compensation. The denial of compensation for expropriated property is not only a violation of the South African Constitution but also a violation of international law and an act of confiscation or theft.

The only redress for victims of expropriation without compensation due to amendments of the property rights clause in the Constitution, will be to take each conduct of confiscation masquerading as expropriation of land without compensation of land upon judicial review.

The types of property that will be expropriated without compensation under the Draft Expropriation Bill,2019 are:

  • Land that is held purely for speculation purposes.
  • Abandoned or neglected property.
  • State invested land.
  • Property owned by a state-owned corporation or state-owned entity.
  • Farms or portions of farms where the land is occupied or used by a labour-tenants.

The Draft Expropriation Bill, 2019 spells out in detail how expropriation, mostly with compensation will work and how the valuation will be done. The Bill also indicates how money should be paid and disputes be settled. The Bill holds that no property, including land, may be expropriated arbitrarily or for any reason other than in the public interest and it may be just and equitable for nil compensation to be paid where land is expropriated in the public interest.

Except for the controversial stipulation regarding land that is held for speculation purposes, that will most probably in most cases be taken on judicial review before the Constitutional Court, all the other stipulations in terms of the Draft Expropriation Bill, 2019 published in the Government Gazette on the 21st December 2019, should be acceptable to all South African citizens.

Therefore, whatever happens this year, there should never be any arbitrary confiscation of property and it seems very unlikely that commercial farms that operates with no state investments and or subsidies will be expropriated without compensation.

SimSo Wildlife has therefore, after careful consideration of the Draft Expropriation Bill, 2019 that was published in the Government Gazette on the 21st December 2019, decided to proceed with the developments of our properties.

We trust that this decision in terms of this proposed new legislation will be the correct one. Only time will tell.

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