President signs Expropriation Bill into law - how 'nil compensation' provision will actually work

Stephen Grootes is joined by Werksmans Attorneys director Bulelwa Mabasa, a member of the President's Land Reform Advisory Panel.

President Cyril Ramaphosa has signed into law the Expropriation Bill which repeals the pre-democratic Expropriation Act of 1975.

It sets out how organs of State may expropriate land in the public interest for a number of reasons.

The law that Ramaphosa assented to will help local, provincial and national authorities to do this for reasons including the promotion of inclusivity and access to resources, says a government statement.

Stephen Grootes interviews Bulelwa Mabasa, head of the Land Reform Practice at Werksmans Attorneys, and member of the Advisory Panel to the President on Land Reform.

The power to expropriate land has always existed, she points out, and this Act is a sequel to one South Africa's had for the last 50 years - the Expropriation Act of 1975. 

"The State has always had the ability to expropriate, and expropriation has happened even prior to the finalisation of our current Constitution."

Bulelwa Mabasa, Head of Land Reform Practice - Werksmans Attorneys

In a nutshell, this really is a State power that is used when land is required for the public interest or for a public purpose, she says.

"To put it quite simply, it's an ability given to a government to take land away from people when it needs this for a public purpose such as building a clinic or a road or, in the case of South Africa when it is in the public interest, which here includes specifically in our Constitution the nation's commitment to land reform."

Bulelwa Mabasa, Head of Land Reform Practice - Werksmans Attorneys

Mabasa notes that the 1975 legislation in fact didn't have the type of administrative justice mechanisms and safety provisions that ensure that the expropriation process is a negotiated one.

What the 'new' Act does is introduce elements of the Promotion of  Administrative Justice Act which means that the State power isn't absolute, she says.

"The State now has to give an owner a notice of expropriation and the owner has a right to agree or not agree... Additionally, if the owner is agreeable, they must first offer an amount of compensation payable. So, what we see in this legilslation is a kind of symbiotic, negotiated expropriation including the amount of compensation."

Bulelwa Mabasa, Head of Land Reform Practice - Werksmans Attorneys

Mabasa also outlines what she says are the NARROW instances where no compensation is paid.

This would include land that is not being used 'where the owner sits on it on purpose to increase the value', inner city land which has been abandoned where the owner is not traceable, and also instances where the State holds land it is not using for its core business.

"In fact the BULK of the legislation actually makes provision for just and equitable compensation, so if we're to look at the bill in its entirety we find that compensation is still at the core of the expropriation concept."

Bulelwa Mabasa, Head of Land Reform Practice - Werksmans Attorneys