Is South Africa heading towards expropriation without compensation? The constitution provides landowners with protection from being arbitrarily deprived of propertywhich may only be expropriated subject to the landowner being compensated. With the promulgation of the Expropriation Bill and the Preservation and Development of Agricultural Land Framework Bill on the horizon, it appears as if the legislature is attempting to sidestep the obligation to compensate landowners by redefining how they are deprived of their property.

The Preservation and Development of Agricultural Land Framework Bill, currently in draft form, provides that agricultural land is the common heritage of all the people of South Africa and the State is the custodian for the benefit of all. The State will have the power to, among other things, approve, reject, control, administer and manage any rezoning or subdivision of agricultural land. The State will then be in a position to license the erstwhile farmer to farm the land he has been deprived of, subject to such conditions as the respective minister determines. This is an extensive power and will have far-reaching consequences should farmers refuse to farm and there is no suitable replacement.

The Expropriation Bill, adopted by the National Assembly, makes provision for the State to become the custodian of your home or farm without compensation as the State does not acquire ownership and it is not an “expropriation” as defined in the Bill. If promulgated, this Bill will legislate the principles laid down by the court in the case of Agri South Africa versus Minister for Minerals and Energy (the Agri case). In that case, the issue was whether the Mineral and Petroleum Resources Development Act had, by its promulgation, expropriated the mining rights of a company. The majority of the judges held the State was the custodian of the rights, not the owner, and no expropriation had taken place and no compensation was payable.

Two of the judges in the case, for the minority, cautioned that “if private ownership of minerals can be abolished without just and equitable compensation – by the construction that when the state allocates the substance of old rights to others it does not do so as the holder of those rights – what prevents the abolition of private ownership of any, or all, property in the same way?” The Expropriation Bill and the Preservation and Development of Agricultural Land Framework Bill have made significant headway into the State’s ability to take full control over immovable property in South Africa. The Bills, in their current drafts, are likely to send shivers down South African landowners’ spines. Whether or not the State is able to take custody of immovable property without paying any compensation will largely be determined by the final version of the above Bills and how the courts interpret them in practice.