ANC slams proposal for courts to determine nil land compensation cases

The issue the ANC raises is contained in the amendment only explains Law professor Elmien Du Plessis at North Western University.

The ANC has just turned up the heat on the thorny topic of land expropriation again.

It was reported in the Sunday Times that the ANC NEC has given its blessing to a shift in policy that would see the ultimate decision-making powers handed to the Minister of Land Reform, and not the courts.

It is expected that ANC MPs will propose these changes and make the necessary amendments via the parliamentary process in the coming weeks, and could face resistance from the EFF.

The party's Mathole Motshekga is heading up an ad hoc committee to deal with the issue. And he explains that the need for this change is because courts have been hampering the land redistribution process.

The bill was gazetted in December 2019 and will go to the public hearing stage in February 2020.

Refilwe Moloto talks to Elmien Du Plessis, an expert in Land and Expropriation Law and associate professor at North West University.

I think this message was badly conveyed and Mathole Motshekga was the wrong messenger, being the chair of the ad hoc committee.

Professor Elmien Du Plessis, Faculty of Law, North Western University

She says this has created some confusion.

There was also some malicious contortion about what it actually means.

Professor Elmien Du Plessis, Faculty of Law, North Western University

She explains what expropriation actually means.

Expropriation is a very powerful and unique state power.

Professor Elmien Du Plessis, Faculty of Law, North Western University

The process is carried out according to very strict procedure and the consequence is just and equitable compensation must be paid, though in limited instances this can be nil, she says.

It is described by legislation which sets out the powers and how the powers must be exercised.

Professor Elmien Du Plessis, Faculty of Law, North Western University

The power lies with the executive and she says this is nothing new and ministers are bound by the existing legislation.

Land can be expropriated for a public purpose.

Currently, in terms of section 2 of the Expropriation Act, for example, the Minister of Public Works has the power to expropriate property, the Minister of transport can expropriate land to build a road.

Professor Elmien Du Plessis, Faculty of Law, North Western University

But here is where the conundrum comes in, she explains...

Already existing in the Constitution, in terms of Section 25 2 b, once the process has been carried out, any unhappy party involved may approach a court for a review.

This is quite a strong review power....the courts can either confirm the amount of compensation or they can make their own determination.

Professor Elmien Du Plessis, Faculty of Law, North Western University

And here is what is being amended...

Now, the amendment suggestion is that in the cases where nil compensation is payable, only the courts should be allowed to determine that.

Professor Elmien Du Plessis, Faculty of Law, North Western University

It is a new legal procedure, she emphasises, and this is what the ANC is challenging.

The ANC now says no, it also wants the nil compensation to follow the normal procedure.

Professor Elmien Du Plessis, Faculty of Law, North Western University

The ANC wants these cases to be determined by the executive and not the courts.

Saying the ANC wants to take away all the power of the courts in this regard is a wrong interpretation of Dr Motshekga was saying.

Professor Elmien Du Plessis, Faculty of Law, North Western University

The issue the ANC raises is contained in the amendment, but not those covered overall.

She does not believe Dr Motshekga claim that the courts are holding up land distribution is true.

He is wrong in that. They try and blame the courts nowadays.

Professor Elmien Du Plessis, Faculty of Law, North Western University

But, she says. like with the labour tenant case of 2019, the issues lie with administrative failure.

She does acknowledge that the court process is very long and costly.

The systemic issues in land reform need to be addressed, she concludes.

Listen to the interview below:

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