Category

constitutional law

Mar 02
0

Expropriation Bill unconstitutional in the absence of a constitutional amendment

By | constitutional law, Expropriation Bill

Reprinted from BizCommunity, by Gary Moore – 2022-02-24

The 1975 Expropriation Act authorises the Minister of Public Works to expropriate property for public purposes, and provides for the payment of compensation to the dispossessed owner, not exceeding the property’s market price, determined either by agreement between government and the owner, or by a court.


The Constitution says property may be expropriated in terms of “law of general application” for a public purpose, or in the public interest (including for land reform), and subject to compensation in an amount either agreed by those affected or decided by a court.

The amount of compensation, says the Constitution, must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including certain listed ones.

In 2020, the Minister tabled an Expropriation Bill intended to replace the 1975 Act with one which replicates the 1975 statute by and large, but which includes clauses that take into account provisions of the Constitution.

The 2020 Bill repeats in broadly similar terms the 1975 Act’s provisions which say that, if the Minister is considering expropriating property, she may authorise an inspector to enter a particular property to ascertain if it is suitable and to determine its value.

But while the 1975 Act says, if the occupier doesn’t consent to the inspector’s entering any building on the land, the inspector can nevertheless do so on 24 hours’ notice, the Bill in contrast says (in deference to the fundamental rights to dignity and privacy), if the occupier doesn’t consent to the entry and inspection, the government must get a court order authorising access.

Like the 1975 Act, the Bill (with minor adjustments) says that, in determining the amount of compensation to be paid, account must not be taken of the fact that the property has been taken without consent, or of any enhancement or depreciation in its value which is attributable to the purpose for which it was expropriated.

The Bill then repeats the Constitution’s property clause wording, that the amount of compensation must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances.

But the 2020 Bill then takes a step too far and ceases to be “law of general application” envisaged in the Constitution. The Bill contains a clause which seeks to stipulate when it may be just and equitable for “nil” compensation to be “paid”. The word nil is the contracted form of the Latin word nihil, which means “nothing”.

The clause states that it may be just and equitable for nil compensation to be “paid”, “where land is expropriated in the public interest”.

The Bill’s clause then lists precise circumstances which it deems to be relevant, and to which it requires that regard be had in determining when it may be just and equitable for nil compensation to be “paid” where land is expropriated in the public interest.

These listed circumstances are (slightly abbreviated):
* where the land is not being used and the owner’s main purpose is not to develop it or use it to generate income, but to benefit from appreciation of its market value;
* where an organ of state holds land that it acquired for no consideration and is not using for its core functions and is not reasonably likely to require for those functions;
* where the owner has abandoned the land by failing to exercise control over it;
* where the land’s market value is equalled or exceeded by the present value of direct state investment or subsidy in the acquisition and capital improvement of the land; and
* when the nature or condition of the property poses a health, safety or physical risk to persons or other property.

But it is not for this clause of the 2020 Expropriation Bill or for any Act of Parliament to specify circumstances when it may be just and equitable for nil compensation to be “paid”.

It is not for the legislature to lay down how the courts should interpret the Constitution’s property clause in particular cases, and the Constitution does not envisage that the legislature may do so.

This clause in the Expropriation Bill infringes the separation of powers which is implicit in the Constitution.

The separation of powers does not imply rigidly demarcated functional roles between the judicial and legislative branches. But, says the Constitutional Court, there is need for caution on the part of each such branch of government against intruding into the constitutionally-assigned operational space of the other one.

The Constitution envisages that the superior courts decide constitutional matters. Whether an amount of compensation offered for an expropriation is a just and equitable amount is just such a constitutional matter.

It is not in the compass of the legislature to encroach on the domain of the courts by prescribing circumstances when nil compensation would be just and equitable, unless an amendment of the Constitution is adopted which alters the property clause in the Constitution to allow for such legislation.

Indeed, there was a very recent attempt to bring about just such an amendment to the property clause in the Constitution, but the attempt failed. A Constitution Amendment Bill of 2021 sought to amend the property clause so as to provide that where land and its improvements are expropriated for land-reform purposes the amount of compensation may be nil, and that legislation must set out circumstances where the amount of compensation is nil. That Constitution Amendment Bill failed to achieve the required affirmative vote of two thirds of the members of the National Assembly and has accordingly lapsed.

In the circumstances, the 2020 Expropriation Bill’s clause that seeks to stipulate when it may be just and equitable for nil compensation to be paid is unconstitutional and invalid, and the National Assembly’s Portfolio Committee on Public Works should accordingly remove the clause from the Bill.

SD Law can help

If you have concerns about the Expropriation Bill 2020 or your property and want to talk to an expert, contact Simon on 087 550 2740 or email sdippenaar@sdlaw.co.za

Simon Dippenaar & Associates Inc. is a law firm in Cape Town and Gauteng with eviction lawyers and attorneys specialising in eviction law.

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Nov 03
0

City of Cape Town to approach ConCourt as unlawful occupations increase

By | constitutional law, Eviction news, Homeless

Reprinted from News24, by Cebelihle Mthethwa – 2021-10-27

  • The City of Cape Town will be approaching the Constitutional Court for assistance regarding unlawful occupations.
  • According to the City, there had been an increase in unlawful occupations.
  • This had resulted in large pockets of City-owned land earmarked for the development of public services.

The City of Cape Town says it will approach the Constitutional Court to challenge a part of the Disaster Management Act (DMA) regulations following an increase in unlawful occupations.

According to the City, following the declaration of the state of national disaster due to Covid-19, it had observed an increase in unlawful occupation as well as an increase in a variety of makeshift structures and tented camps being erected throughout the metro.

This included parks, environmentally sensitive pockets of land, road reserves, pavements, under bridges and between highway barriers.

“This has resulted in the unlawful occupation of large pockets of City-owned land earmarked for the development of public services,” the City said in a statement on Wednesday.

It added that the Western Cape High Court judgment in the matter of South African Human Rights Commission versus City of Cape Town and Others had severely curtailed the private property owners and the City’s ability to protect its land, leaving the City with few options to prevent and respond to unlawful occupations.

“To this end, the City will be applying for eviction applications on 595 tented camp and land invasion hotspots.”

According to the Cape metro, the continued land invasions negatively impacted on the City’s ability to comply with its constitutional mandate. In 2017, there were 14 289 land invasions in the City.

Numbers

“In 2018, that number had increased to 87 500 land invasions and by 2018, 232 8559 ha [hectares] of City owned land had been lost to unlawful occupiers,” the City added.

Most of the unlawfully occupied land was said to not be suitable for human settlements or the installation of bulk services and had great constraints.

“The City’s ability to protect its property is severely curtailed, the unlawful occupations are an extreme health and safety hazard for unlawful occupiers, some of whom have occupied dams, wetlands, nature reserves and waterlogged land, and the City is called on to provide emergency housing to unlawful occupiers before it can access its land to deliver services, including housing and sanitation to the thousands of residents who have not taken the law into their own hands.”

The metro said that through rates funding, it contributed to operating and maintenance costs for informal settlements, but added that resources were not unlimited.

“The president and the minister of co-operative governance have not responded to the City’s requests to engage in respect of the up-liftment of the DMA regulations. The City therefore has no alternative, but to apply to the court to have the regulations set aside,” the City added.

For further information

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our eviction attorneys on 086 099 5146 or simon@sdlaw.co.za if you need advice on the eviction process or if you are facing unlawful eviction.

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Feb 21
0

Laws must be adapted to SA’s current reality

By | constitutional law, Evictions, Miscellaneous

Do apartheid-era laws infringe our constitutional rights? An interesting view on the contradictions that exist in South African law. From the Mail & Guardian.

On a few occasions, Julius Malema, the leader of the Economic Freedom Fighters, has addressed the crisis of landlessness in ways that some argue encourages land grabs. For others, it speaks to the urgent need for land reform.

This week, these utterances formed the background of a hearing in the Constitutional Court between the EFF and Malema on one side, and the minister of justice and constitutional development and the national director of public prosecutions on the other.

Before the court was an application for leave to appeal against a decision of the high court on the constitutionality of section 18 (2)(b) of the Riotous Assemblies Act 17 of 1956 and section 1 of the Trespass Act 6 of 1959.

The two pieces of apartheid legislation were enacted when the majority of the country were defined, by law, as subjects and not citizens. Black people could not own property and their agitation for rights and recognition was criminalised. By design, apartheid systematically disenfranchised black people, relegating generations to come into poverty.

The negative effects of these laws are clearly illustrated in the case of the State v Zwane. The matter involved Rachel Zwane, who has lived with her daughters and grandchildren in a small house in Ennerdale, Johannesburg, which she bought with the assistance of a mortgage bond in 2001.

In 2008, when Zwane lost her job because her employer of 20 years ceased trading, she struggled to keep up with her mortgage bond payments and fell into arrears. With no proper notice, the bank sold her home in execution and the new owner of the property obtained a default eviction order against her.

Zwane only learned of the eviction in May 2012 when she and her family were forcibly removed from their home and left on the street with nowhere to go. The family re-entered the property after one of Zwane’s grandchildren climbed back into the house though a broken window to open the front door from inside.

It was only in May 2015 that Zwane had to make her first appearance for the criminal charges of housebreaking and trespass for which she was found guilty.

Zwane sought leave to appeal her conviction on the grounds that the Trespass Act did not apply to those who unlawfully occupy their homes because the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) protects unlawful occupiers from being evicted from their homes if the eviction will render them homeless. But the high court found that the Trespass Act criminalises the occupation of a home once an eviction order has been obtained. Yet section 1(1) of the Trespass Act does not refer to a court order.

South Africa acknowledges the disparities of the past and, through the PIE Act, seeks to address the reality that many people have been forced to unlawfully occupy land and property out of desperation driven by poverty rather than malice. This is the reality for Zwane, who once owned her home. It is also the reality for at least 1.25-million households who live in informal settlements. The incorrect response to this reality would be criminalisation.

The co-existence of the Trespass Act and the PIE Act presents a clear example of how historical disparities cut through legislation in conflict with efforts to address these very disparities.

Section 18(2)(b) of the Riotous Assemblies Act makes criminalisation possible for incitement to commit any offence. Anyone who is considered to incite an offence can be punished as if they committed the offence themselves, whether or not the offence occurred.

The danger of this clause is its infringement on the right to freedom of expression, which is a critical part of political expression. This right includes the “freedom to receive and impart information or ideas”, freedom of the press, as well as academic and creative freedoms. The Constitution is clear about the kinds of expressions that are not protected, such as incitement of violence, advocacy of hate on the basis of race, religion and gender, among others.

The fact that political action through civil disobedience is sometimes in breach of the law means that organisers, whether participants or not, can be criminalised for incitement. Advocating for people to not pay e-tolls or even providing advice to sex workers (a profession that is still criminalised in South Africa) could be characterised as incitement.

To criminalise the incitement of violent crimes or crimes that harm others is both reasonable and necessary, but the Riotous Assemblies Act contains no such limitation. Should people who encourage a demonstration that temporarily involves trespassing for the purposes of symbolically illustrating the crisis of inequality be culpable of incitement on the grounds that the protest would violate laws against trespassing? Should the gender activist who calls for a naked protest against rape culture be punished for incitement on the grounds that the protest would violate laws against public indecency? Are there other, more appropriate and better targeted ways of responding to such actions or is criminalisation the only response?

The health and robustness of a democracy is related to its ability to engender and tolerate the contestation of ideas. Criminalisation is, at best, a blunt tool and, at worst, a dangerous one. Section 18(2)(b) of the Riotous Assemblies Act and its broadness can be misused to unjustifiably limit free speech and serve as a deterrent for political action.

Under apartheid, this law was introduced to give the state broad and sweeping powers to target those it deemed to pose a threat to public peace and, by extension, the status quo. It was used to imprison and, in some cases, sentence political leaders to death. Although this history does not in and of itself invalidate the Riotous Assemblies or the Trespass acts, their purposes under apartheid and their purposes today must be interrogated.

The effects and purposes of the two Acts under apartheid does not miraculously transform because it is applied by a new regime. Zwane’s story shows how a person entitled to both constitutional and legislative protections can still be criminalised under the Trespass Act and have the high court confirm their criminalisation. Similarly, we see how the Riotous Assemblies Act has, contained in it, an excessive broadness that, when weighed in the balancing of rights, could lead to an infringement on the constitutional freedoms of assembly and expression. Both are examples of areas in which our legislation must be brought in line with our current dispensation and to keep pace with current realities.

Thato Masiangoako is a researcher with the Socio-Economic Rights Institute of South Africa

Reprinted from the Mail &  Guardian – 2020-02-21

Contact us today

SD Law is a firm of Cape Town and Johannesburg attorneys with a deep commitment to constitutional law. We are also eviction lawyers. If you feel your constitutional rights have been infringed in any way, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

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