EWC – business in South Africa urged to engage

South Africa’s land question comes into the spotlight.  Pic courtesy Jeff King

Examining whether Expropriation without Compensation (EWC) is possible under the current formulation of Right to Property in Section 25 of the Bill of Rights.

Rosh Pinah recently invited its clients to a panel discussion hosted by CDHLegal on the controversial Expropriation without Compensation (EWC) land debate and the implications of the proposed bill if passed on the rights of private property owners in South Africa.

As commercial property brokers this has obvious impact on our business, and so we were keen to hear directly from the legal fraternity of where we as a country stand on the EWC issue.

The panel comprised Tim Fletcher, National Practice Head: Dispute Resolution, CDH; Eugene Bester, Director, CDH; Burton Meyer, Director, CDH; Alfred Cockrell, Senior Counsel and Ndumiso Luthuli, Junior Counsel, both of Thulamela Chambers.

The discussion both on the panel and with the audience was lively, recognising the significant human issue in terms of land ownership and redistribution, but also the need for the constructive and managed implementation of the existing legislation.

CDH and Rosh Pinah
From left: CDH Legal Partner Tim Fletcher with Rosh Pinah Directors Patricia Potgieter (left) and René Styber (right)

Commenting on the outcome of the evening, Tim Fletcher summed up the substance of the discussion:

“The panel acknowledged that the issue of land, albeit to a degree a political football, is a significant issue, which South Africans will ignore at their peril. The speakers considered the recent debate, which wrongly accepts that EWC is not possible under the current formulation of the Right to Property in Section 25 of the Bill of Rights.

This is incorrect as the broad requirement in the Constitution is that compensation must be just and equitable and that there will be circumstances in which no compensation would be just and equitable.

The concern was also raised that criticism of the Constitution and other legislation ignored the failure of Government to use the existing legislation under which considerably more progress could have been made in the redistribution of land.

It was noted that no proposed constitutional amendment has been published although we do have a draft Expropriation Bill. That Bill lists certain categories of land that could be subject to EWC, but that wording will not be binding if promulgated in its current form. There is also a significant legislative process that must be completed before that Bill becomes the law and it remains subject to the Constitution.

I believe business can positively contribute to the debate on EWC by avoiding the politics, recognising the human issue that faces the country and pressing for the constructive and managed implementation of the existing legislation.

This is a debate that will continue and one in which we as CDH intend to remain engaged, whether as representatives of our commercial clients or as part of our pro bono/human rights activities.

Rosh Pinah will continue to update its clients on developments concerning EWC as they unfold, as well as other pertinent legislation.  In the meantime we have made available for download the proposed Expropriation Bill  – download here and CDH’s White Paper on the recent judgment by the full bench of the High Court in South Africa, Gauteng Local Division Johannesburg, which finally adjudicated on the future of foreclosure applications, after an extensive period of indeterminacy. The judgment, handed down on 12 September 2018, is premised on s26 of the Constitution, guaranteeing everyone the right to adequate housing.  download here for the full report.

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