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Land Expropriation with Compensation explained by our Attorneys

For most people, Land Expropriation without Compensation does not require much introduction as it has dominated the news and our social media over the last few months.

Land Expropriation without Compensation - Attorneys Cape Town

Native Lands Act of 1913 – Land Expropriation

Many believe that the land of the native South African’s was stolen or expropriated initially by means of the Native Lands Act of 1913.

However, the dispossession of native land can be traced back to the colonial times when Dutch settlers and later British and Afrikaner settlers dispossessed natives of their land and livestock, resulting in many battles between native groups and colonial groups.

Glen Grey Act of 1894

The very first piece of legislation to have dispossessed native land was the Glen Grey Act of 1894 enacted under then Cape Colony Prime Minister Cecil John Rhodes. This Act allowed for Land Tenure and imposed a labour tax on natives, forcing them to work on farms.

Additionally, various other commissions and legislation were enacted. These commissions and legislation ensured that the most fertile and sought-after land would be dispossessed from natives and reserved for the whites.

In 1913 the Native Lands Act was passed, this was a landmark event for the dispossession and prevented natives and people of colour from owning land. The Native Lands Act initially only applied to natives but later found application upon all people of colour residing in South Africa.

Furthermore, the Act prevented people of colour from buying or hiring over 86.5% of South Africa’s land. This left the majority of the population, only being allowed to own 13.5% of the land. The Act also determined where people of colour could own land and essentially reside.

Land Ownership Comparison

When apartheid ended, the Native Lands Act fell away. However, the effects still linger today and are illustrated in the land audit report.

Black South Africans, only directly own 1.2% of rural land and 7% of property in town and cities. This is in comparison to the white population whom directly own 23.6% of rural land and 11.4% of property in towns and cities.

In recent months it seems as if the matter of land ownership has reached boiling point. This all began when the motion for the expropriation of land without compensation was tabled in parliament. It has evoked mixed emotions amongst South Africans, with some feeling anxious and others feeling delight, depending which end of the property spectrum you find yourself on. One thing is certain, it has become a sensitive topic for most South Africans.

Ad Hoc constitutional Review Committee

In response to the motion, an Ad Hoc constitutional review committee was established which comprised of members of various political parties.

S25 of the Constitution – Expropriation without Compensation

The main aim is to review S25 of the Constitution and to amend it to allow for expropriation without compensation.

It must however be noted that the Constitution currently, as it reads, allows for expropriation without compensation where it is just and equitable and in the public’s interest, however, with this being said S25 does not allow for compensation as a blanket application.

The general public were given until the 15th of June 2018 to submit their written submissions regarding the matter. There will also be a tour of all 9 provinces to hold public hearings thereafter. In addition, oral submissions will also be heard in parliament.

It’s a common opinion amongst various commentators that if expropriation without compensation becomes a reality, rural land and more specifically, commercial farmland will be subject to the expropriation and not residential property. The current property clause found under S25 the Constitution of South Africa, applies to both forms of property, both rural and residential and not just to rural property.

Tension is further heightened by the lack of clarity found on many issues regarding expropriation without compensation and it has resulted in a lack of understanding for most and panic in a lot of residential home owners.

Velile Tinto Cape – Attorneys in Cape Town

In conclusion, it can with certainty be deduced that the effects of the various legislation and measures which were put in effect to limit and dictate ownership and dispossess land from black South Africans, can still be felt today and still cripple the road to our rainbow nation’s recovery.

Therefore, it would be wrong to state that this issue has only appeared in recent months. It has really been an issue since 1994, patiently waiting to be fully addressed.

From what the politicians are saying, it looks as if expropriation without compensation will focus mainly on rural and agricultural land and that residential land will not be affected.

However, the fact that we have to use terms like, “it looks as if” or “probably” is what is troubling and shows the lack of certainty pertaining to the matter. We hope that when the constitutional review committee does make a decision, that this will bring some clarity and certainty relating to this topic.

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