DA digs its heels in over Expropriation Act's ‘nil compensation’ clause

CapeTalk's John Maytham speaks to Mazibuko Jara, Director at Zabalaza Pathways.

Listen below:

The Democratic Alliance is sticking to its guns over the new Expropriation Act, particularly the clause that allows for 'just and equitable compensation' to sometimes mean absolutely nothing.

Public Works Minister and DA MP Dean Macpherson recently tried to clarify that nil compensation is not the same as expropriation without compensation.

However, his own party has now voted to fight the Act in court.

They argue that it undermines property rights and could scare off investment. 

According to the Constitution, compensation during expropriation must be just and equitable - and, not necessarily market-related and sometimes not at all.

"Section 25 (3) of the Constitution deals with that. It says compensation must be just and equitable."

- Mazibuko Jara, Director - Zabalaza Pathways

"It must reflect an equitable balance between the public interest and the interests of those affected."

- Mazibuko Jara, Director - Zabalaza Pathways

Jara adds that the Constitution also outlines five circumstances that are considered when determining just and equitable compensation for expropriated property. 

These factors are: the current use of the property, the history of its acquisition and use, the market value of the property, the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property, and the purpose of the expropriation.

"If you read all of those five circumstances together, what it means is that the market value is not the only consideration, there may be be circumstances where the compensation may be nil."

- Mazibuko Jara, Director - Zabalaza Pathways

It is in this instance, says Jara, that the Expropriation Act takes it further.

"It says, for example, where land is abundant or where land is held purely for speculation or where there is clearly theft or dispossession... then the appropriate body could apply for nil compensation."

- Mazibuko Jara, Director - Zabalaza Pathways

But far from being applied in the majority of expropriation cases, it's likely to be a very rare occurrence, says Jara.

"And even in such occurrences, a court has to intervene to ensure that all factors relevant have been taken into account."

- Mazibuko Jara, Director - Zabalaza Pathways

"So it's not going to be willy nilly action on the part of the state."

- Mazibuko Jara, Director - Zabalaza Pathways

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