"The Expropriation Bill of 2015, recently put forward by public works minister Thulas Nxesi, ("Nxesi Bill" ) is unconstitutional and economically damaging - it will make it much harder to build prosperity and overcome past disadvantage by undermining property rights, deterring investment, and choking off growth and jobs, warns the IRR (Institute of Race Relations)."
http://irr.org.za/reports-and-publications/media-releases/the-irrs-better-expropriation-bill/view
Following is an overview of the IRR's alternative Expropriation Bill as well as a more comprehensive version :
http://irr.org.za/reports-and-publications/media-releases/the-irrs-better-expropriation-bill/view
http://irr.org.za/reports-and-publications/occasional-reports/overview-of-the-irrs-proposed-expropriation-bill-2013-22-april-2015
1. Overview of the IRR’s Alternative Expropriation Amendment Bill:
News media may contact mienke@sairr.org.za , the IRR's Mienke Steytler on 011 482 7221 ext. 2003 or mienke@sairr.org.za for interview or further information requests.
Head of Media and Public Affairs t: +27 (0) 11 482 7221 ext. 2003 c: +27 (0) 78 091 1374
http://www.sairr.org.za
Scope:
The IRR’s alternative Expropriation Amendment Bill (a framework document which is also available
on the IRR website), deals with direct and indirect expropriation by all expropriating authorities –
whether the minister of works or any other organ of state. It covers both movable and immovable
property as well as mining and water rights; mortgages, servitudes, and other registered rights; shares
in companies; and intellectual property rights, including patent rights.
Principles:
An expropriating authority must fulfil all relevant constitutional requirements, including those
governing ‘just and equitable’ compensation. It must also obtain a High Court order confirming that it
has done so, before it may proceed issue a notice of expropriation.
Compensation must start with the market value of the property, less the four ‘discount’ factors listed
in the property clause of the Constitution. However, since expropriation places an ordinate burden of
redress for past societal wrongs on the shoulders of particular individuals, compensation must also
include damages for all consequential losses, including moving expenses and any loss of future
income. If the property to be expropriated includes the owner’s home, his eviction must expressly be
authorised by the High Court and suitable alternative accommodation may also have to be provided.
Initial processes:
An expropriating authority must start by negotiating with the owner with a view to agreeing on a
voluntary purchase. If these talks fail, it must issue a notice of possible expropriation, invite
objections, and give reasons in writing for rejecting any objections submitted to it. It may also
investigate the value of the property.
If the expropriating authority then wishes to proceed, it must give the owner 180 days’ notice of its
intention to seek a High Court order confirming the constitutional validity of the proposed
expropriation.
High Court hearing on constitutionality:
The expropriating authority bears the onus of proving, on a balance of probabilities, that its proposed
expropriation meets all constitutional requirements. During the court hearing, the owner’s evidence
and representations must be heard in full. The expropriating authority must pay the owner’s
reasonable legal costs in participating in these proceedings (on an attorney-and-client basis).
If the High Court confirms the constitutionality of the expropriation, it must issue an order dealing
with all relevant issues, as listed in this Bill. Among other things, the court’s order must instruct the
expropriating authority to pay all compensation due to the owner at least 15 working days before the
transfer of ownership to it is due to take place.
Notice of expropriation:
If the High Court confirms the constitutionality of the proposed expropriation, the expropriating
authority may thereafter issue a notice of expropriation. This notice must be in keeping with the High
Court order and accompanied by a copy of it. The notice must give the owner 90 days from the date of
service of the notice before the transfer of ownership to the expropriating authority may take place,
and another 90 days before possession may pass. However, the owner may agree in writing to shorter
periods if he so chooses.
The expropriating authority must pay all the compensation due to the owner at least 15 working days
before ownership is to pass to it. If the expropriating authority cannot provide written evidence of
having done so, the expropriation notice is automatically set aside and has no further force or effect.
If suitable alternative accommodation is required for an owner being evicted from his home, this
accommodation must also be provided 15 working days before ownership is due to pass. The same
consequences follow for any failure to do so.
The owner has the right to the use of, and income from, the property until possession passes to the
expropriating authority, but must look after the property, pay municipal rates and charges (if
applicable) and maintain the property’s value.
Third party rights:
The expropriating authority must pay any mortgage holder as much of the total compensation due as
is needed to settle the debt; and must do so at least 15 working days before ownership is due to pass to
it. On the same day, it must also pay the remaining balance to the owner. If the mortgage holder has
been paid timeously and in full, the mortgage ends when ownership is transferred to the expropriating
authority.
If the expropriating authority wishes to expropriate mining rights or other registered rights in land, it
must follow the process set out in the Bill in relation to each rights holder. However, if the matter is
particularly urgent, the expropriating authority may seek and obtain High Court authorisation to issue
the same notice of expropriation to all rights holders, each of whom will be entitled to just and
equitable compensation and the other protections set out in this Bill.
Incidental matters:
Further rules will apply where the owner cannot be traced, and will govern the withdrawal of a notice
to expropriate. The existing Expropriation Act of 1975 (and earlier amendments to it) will be repealed
when a new Bill along these lines is enacted and comes into effect.
Regulations:
Any regulations must be consistent with this Bill and tabled in Parliament for approval three months
in advance.
Precedence over other expropriation legislation
To ensure that the procedures and requirements outlined apply to all expropriations, this Bill will have
the capacity to trump all other laws dealing with expropriation.
IRR (Institute of Race Relations) 22 April 2015
http://irr.org.za/reports-and-publications/media-releases/the-irrs-better-expropriation-bill/view
The Nxesi Bill: the Expropriation Bill of 2015 (Jan 2015) submitted by public works minister is unconstitutional and economically damaging
warns SA Institute of Race Relations on 22 April 2015:
"2. The Expropriation Bill of 2015, which was released by the minister of public works, Thulas Nxesi, in January this year, is unconstitutional and economically damaging. This Bill should
be withdrawn and replaced by a new ‘expropriation amendment bill’ which is fully compliant with the Constitution and contains adequate safeguards against any abuse of the power to
expropriate. The IRR has drawn up the framework for an alternative bill, which should be worded roughly as follows:
1. Definitions
Many of the relevant definitions would be the same as those in the current Expropriation Act of 1975.
Others would need to be added or amended, and these are underlined:
- Constitution means the Constitution of the Republic of South Africa, 1996.
- date of expropriation means the date on which ownership of the property in question is to pass to the expropriating authority under section 11(4)(b)
-- date of notice means the date on which a notice of expropriation is served on the owner of the property in question under section 11(2).
-- expropriating authority means the minister of public works or any organ of state.
-- expropriation means the direct or indirect expropriation of property by an expropriating authority, either for public purposes or in the public interest.
- Master means the Master of the High Court having jurisdiction over the area in which the property in question is situated.
-- Minister means the minister of public works.
-- organ of state means an organ of state as defined in section 239 of the Constitution
Ten page document on:
http://irr.org.za/reports-and-publications/occasional-reports/overview-of-the-irrs-proposed-expropriation-bill-2013-22-april-2015
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