By Thabiso Mbhense in response to an original article on News24
“Minister of Human Settlements, Water and Sanitation Lindiwe Sisulu says her department will be the first to use a constitutional amendment that will enable the expropriation of land without compensation, starting with state-owned land in Cape Town.”
The Minister’s statement raises a number of important questions. (a) Whether the state-owned land is capable of being expropriated. (b) Why the Minister has to wait for the constitutional amendment in order to expropriate the state-owned land? (c) Why the state is not donating the state-owned land to the Department of Human Settlement, Water and Sanitation?
According to Concise Oxford Dictionary, Ninth Edition, 1999, expropriate means “take away (property) from its owner”.
Expropriation is not defined in the Constitution but was subsequently defined by the Constitutional Court in Harksen v Lane NO 1998 (1) SA 300 (CC) at paragraph 32 as “the compulsory acquisition of rights in property by a public authority.” Within this definition, the Constitutional Court stipulated that the term compulsory means compelled by law. The Constitutional Court again defined expropriation in Phoebus Apollo Aviation CC v Minister of Safety and Security 2003 (2) SA 34 (CC) at paragraph as “the compulsory taking over of property by the state to obtain a public benefit at private expense.”
It is clear from the above definitions that the state or state department cannot expropriate the state-owned land. However, the state can donate its land to the Department of Human Settlements, Water and Sanitation or to Provincial Government or to Municipalities for the housing developments. The Minister does not have to wait for the constitutional amendment for the state-owned land to be donated to her department. The Minister can simply request that the state-owned land be donated to her department. The Minister has to follow the procedure sets out in the State Land Disposal Act No. 48 of 1961 or Upgrading of Land Tenure Rights Act No.112 of 1991 and any other relevant legislations, regulations and policies.
It seems as if there is no political will on the side of the state to part with its land. The state owns hectares and hectares of land but it does not want to donate its land for housing developments. The Municipalities do not have sufficient land for low-cost housing developments whereas the state owns hectares of land. Furthermore, the Municipalities are failing to comply with Emergency Housing Policy (“EHP”) as a result of the shortage of land.
The Emergency Housing Policy forms part of the National Housing Code, 2009. It was enacted in terms of section 3(4)(g) of the Housing Act No.107 of 1997. Observance of its provisions is mandatory in an emergency housing situation. The EHP is triggered where affected persons are in need of emergency housing for reasons beyond their control.
In actual fact, it is not necessary to amend section 25 of the Constitution because in its current form it allows the expropriation of land with zero compensation in some instances. The state has rarely utilised the procedure for the expropriation of land for land reform and human settlements.
Thabiso Mbhense is an Attorney currently employed by Legal Resources Centre. He holds Baccalaureus Iuris (B Iuris) Degree and Bachelor of Laws (LLB) from University of KwaZulu Natal. He was employed as a candidate attorney by University of Kwa-Zulu Natal Law Clinic in 2003. When he was employed as a candidate attorney he was specialising in cases involving land reform, eviction in rural areas, domestic violence, child maintenance, divorce, labour, family matters, curator bonis and curator ad litem applications.
He was admitted as an attorney in 2005. He is currently specialising in cases involving rural and urban evictions, land reform, housing, provision of basic services, upgrading of informal settlements, acquisition of land and land claims.
He has appeared in the Magistrates’ Court, High Court, Land Claims Court, CCMA and Supreme Court of Appeal.