Land expropriation without compensation - 16 May 2018 - ENSafrica
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land expropriation without compensation 16 May 2018
agenda
section 25 of the constitution
01 Pippa Reyburn
corporate commercial | director
02 land restitution
Andrew Bembridge
property and real estate | director
impact on mining
03 Ntsiki Adonisi-Kgame
natural resources and
environment | director
section 25 of the constitution
Pippa Reyburn
corporate commercial | director
Pippa is a director in ENSafrica’s
corporate commercial department.
She specializes in public procurement,
public sector financial management,
infrastructure projects (including
public private partnerships), as well as
structures of government, public
sector corporate governance and
transactions, and constitutional
administrative law. Some of Pippa’s
other areas of experience include
broad-based black economic
empowerment, municipal law and
medical schemes.
section 25 of the constitution
property
section 25
section 25 transformational mandate
property is not limited to
land
section 25
section 25 protection of existing
property rights
deprivation of property
land reform under section 25
land redistribution
security of tenure
land restitution
expropriation of property under section 25 what is expropriation? how may property be expropriated? how may property not be expropriated?
compensation for expropriation
just
compensation
equitable
having regard to all relevant circumstancescompensation proviso does section 25 already permit expropriation without compensation? section 25(8) • expropriation which is inconsistent with section 25 must comply with the general limitations clause section 36(1) • general limitations clause
the parliamentary review process
motion proposed by the EFF, amended by the ANC and adopted by the
National Assembly (NA) on 27 February 2018 (extract below):
“…recognizes that the current policy instruments, including the willing buyer willing seller
policy, and other provisions of section 25 of the Constitution may be hindering effective land
reform;
notes that in his State of the Nation Address, President Cyril Ramaphosa, in recognizing the
original sin of land dispossession, made a commitment that Government would continue the
land reform programme that entails expropriation of land without compensation, making
use of all mechanisms at the disposal of the State, implemented in a manner that increases
agricultural production, improves food security and ensures that the land is returned to
those from whom it was taken under colonialism and apartheid and undertake a process of
consultation to determine the modalities of the governing party resolution..."parliamentary review process
National Assembly + National Council of Provinces
Constitutional Review Committee
Public participation process – written submissions by 15 June
2018
Report to the National Assembly by no later than 30 August
2018important considerations special majority is required for the amendment of section 25 the Expropriation Bill has been “parked” section 25 is not the cause of failures in land reform any constitutional amendment permitting expropriation without compensation is likely to be qualified / limited
thank you
restitution of land
Andrew Bembridge
property and real estate | director
Andrew is a director and head of ENSafrica’s real estate and property
department.
He has acted for a number of notable mining companies, banks and
property development companies.
Andrew has been involved in many major property transactions
throughout Africa. His experience encompasses developments such as
township proclamations, land use applications, water projects and
environmental and heritage applications. Andrew’s experience further
extends to extensive commercial property transactions, involving
immovable and movable property, the drafting of intricate agreements
and the implementation of the transactions arising out of those
agreements.
He also has extensive experience in the land rights and restitution laws of
South Africa, assisting both land owners and communities and has served
as a member of the Johannesburg Attorneys Association Property Law
Committee.restitution of land rights act 22 of 1994 24 years ago The main driver of redistribution of land
restitution procedure
establishment of commission to
receive claimsentitlement to restitution
dispossessed of
entitlement to restitution if land after 1913 by
racially
discriminatory
laws
direct descendants
of such a person
lodged a claim by
December 1998
if claim lodged and
not frivolous or
vexatious, it is
published in the
Gazetterestitution procedure
section1 • commission to investigate
2
section
• commission may mediate
13
section
• commission may refer claims to court
14
section
• minister may enter into an agreement with interested parties
42Dextension for filing land claims
July 2014 July 2016 June 2019
redistribution of Land Rights
Amendment Act Constitutional Court rules Amendment Act
unconstitutional
time for lodging claims extended
All new claims on holdwhy has restitution not succeeded?
lack of proof of evidence
hearsay of past generations
lack of budget
transfer of land to communities – CPA/Trust
no individual title when transfer to a
community
Sale of restitution land for immediate cash
benefit
Failure to restore agricultural enterprises to
communitiesprocess not complete
7 000
claims lodged but not finalised
19 000
new claims not finalised
extension to 2019 awaitedno alternative legislation
legislation for redistribution of land within the
constitutional framework is requiredexpropriation expropriation not used to achieve restitution willing seller avoids difficulty of proof
expropriation without compensation expropriation without compensation does not mean expropriation without reason – must still be in the Constitutional Framework
thank you
impact on mining
Ntsiki Adonisi-Kgame
natural resources and environment | director
Ntsiki is a director in ENSafrica’s natural resources and
environment department. She specialises in all aspects of
mining law. She acts for a wide range of mining companies
in all mineral commodity sectors, including the base and
precious metals, coal, rare earths, sand and diamonds
sectors.
Ntsiki’s expertise include advising on mining aspects of
equity and asset acquisitions, disposals and corporate
restructuring, conducting mining due diligences, execution
and registration of mining titles and black economic
empowerment transactions. Her experience further
includes all aspects of regulatory work in the mining
industry, for listed and unlisted senior, mid-tier and junior
companies.legislation the Mineral and Petroleum Resources Development Act (“MPRDA”) the common law the state as custodian
Iegal nature of mining titles limited real rights by virtue of being a limited real right, the relevant landowner is deemed to be aware of the existence of the mining titles on the relevant property through the doctrine of constructive notice
statutory right to access the land
statutory right to access the land
mining title holders afforded a statutory right
right to bring any plant, machinery, or equipment and build, construct or lay down any
section 5 (3) of the MPRDA
surface
underground or under sea infrastructure
mine for minerals
use water
remove and dispose of the minerals found
carry out activities incidental to mining provided they do not contravene the MPRDAexpropriation in the MPRDA
section 54 allows the Regional Manager to make recommendations
to the Minister to expropriate land in these instances:
landowner makes
landowner refuses to allow entry unreasonable demands Landowner cannot be
to land
in return for access foundministerial power to expropriate for purpose of mining
section 55 of the MPRDA read with section 25 (2) and (3) of the Constitution
section 55 (2) of the MPRDA and section 6,7 and 9 (1) of the Expropriation Actimpact on mining communities
Resistance to
expropriation
without
compensationimpact on private land owners in terms of section 5A (c) of the MPRDA a mining title holder is not entitled to mine on the land without first providing the landowner or lawful occupier of the land with 21 days’ notice before the commencement of mining operations mining title holders do not need to own the land on which mining operations are to be conducted no consent required from landowner
impact on mining companies no adverse effects on the holders of mining titles because of statutory rights beneficial to the mining industry will impact existing access agreements
thank you
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