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The proposed Expropriation Bill which may be placed in the Law Book before the end of the year is much less rosy for farmworkers and farm occupants than it seems.

This is the opinion of Dr. Anthea Jeffery, Head: Policy Research at the Institute for Race Relations.

Spokesperson for AfriBusiness, Stefan Pieterse, says his organisation supports Jeffery’s view and AfriBusiness commissioned three of the country’s best advocates for legal opinions on this bill’s constitutionality and possible contentiousness. “The latter will be published on AfriBusiness’s website in due time,” Pieterse says.

The Expropriation Bill has already been approved by the National Assembly and the National Council of Provinces is currently busy with a public participation process in each province in order to formulate a mandate on when the final decision should be taken.

Jeffery says there is a possibility that the Bill will also be referred to the House of Traditional Leaders (Contralesa) for consultation. According to Pieterse, the ruling party will however try its best to place the Bill in the Law Book before the municipal elections take place on 3 August 2016.

Annelize Crosby, Head: Legal Policy at AgriSA, says the current law only makes provision for the expropriation of existing rights with regard to fixed property.

Above and beyond property rights, it also includes, for example, servitudes, long term rental agreements and royalties. These rights are registered in the deeds office and when the property exchanges hands, the new owner is also bound to them. He must honour, for example, the servitude which permits a neighbour to use a road on his farm.

The Expropriation Bill provides for the first time for the expropriation of unregistered rights. They are typically the rights of farmworkers and their families which permit them to live on the farm and to let their cattle graze on the land.

Crosby says if the Bill is approved, holders of such rights will for the first time be entitled to compensation when the property is expropriated, but says it is not completely clear how the compensation will work.

There is an obligation on the land owner to, when he receives an expropriation notice, notify the expropriation body of the existence of such rights in so far he has knowledge about them. It is thus derived that the expropriation body will negotiate directly with the holders of the unregistered rights (the workers) with regard to compensation.

Crosby says the obligation to compensate also this group of interest should not affect the amount the farm owner receives as compensation. The owner is entitled to fair compensation based on the valuation of his property and this right is guaranteed in the Constitution. “It can however impact on the government’s budget for expropriation,” she says.

Crosby is not concerned that the expropriation will be delayed due to the additional process pertaining unregistered rights. She says the due dates are clearly set out in the Bill.

Jeffery says unregistered rights – the rights of farmworkers – are automatically terminated on the date of expropriation as stated on the expropriation notice. “The right to occupation ends when the new owner takes ownership,” she says. It is however possible, and in practice it happens regularly, that the expropriation authority may extend the rights and allow the farmworkers to stay on the land for a longer period.

Jeffery is of the opinion that farmworkers’ rights to compensation do not mean much. Compensation is calculated on the market value of the right which takes several factors into consideration, of which the goal of the expropriation, the history of the procurement of the property, whether the state has granted subsidies in this regard, and the use of the land.

“In the end, they may receive very little because unregistered rights do not have real value in the market. It is not really transferable,” she says.

Jeffery further states that it should have been fairer to compensate farm occupants for real, direct losses, such as moving costs and compensation for job losses. “They must obtain another place to live and they may lose their cattle. The Bill contradicts the clauses of the Constitution, which offer protection against eviction from one’s home,” she says.

The relation between the Bill and the so-called ESTA is also not clear, Jeffery states. The Extension of Tenure Act (ESTA) protects lawful occupants of agricultural land against eviction. “Farmers cannot evict farmworkers without complying with several requirements,” she says. The new Bill does not provide for similar processes when a farm is expropriated,” she stated.

“Where will the farmworkers live and work who have already been on a farm for 20-30 years if they have no other livelihood? This is the reality of the expropriation,” Pieterse says.

Jeffery states that in public discourse there is currently very little focus on the vulnerability of farmworkers, should the Bill be approved. She has recently attended one of the public hearings of the National Council of provinces and it has not been discussed at all. She says if the Bill is referred to Contralesa, it can take longer than expected to be finally approved and implemented. “Whatever happens, there is currently limited opportunity for amendments,” she says.

Bennie van Zyl, general manager of the Transvaal Agricultural Union SA, says the organisation is very worried about, what he calls, the ‘discriminatory nature’ of the Expropriation Bill and ESTA. He argues that an employee who has occupied a defence force house for 30 years, does not establish rights in the property and why should farmworkers be treated differently. “On top of everything, not only the workers are involved here, but their families as well”. To assign rights on a farm in this manner, is the same as relinquishing rights of a ‘part of a factory,” he says.

Van Zyl further states that it is not clear to what extent the government will honour the rights of farm occupants and whether they will be compensated if expropriation takes place if the Bill is accepted. “The clauses of the Expropriation Bill are not sustainable. They establish rights to people which mean nothing. The workers are thrown to the wolves. The government is not being honest with the people,” he says.

He is of the opinion that it is also the case when the government neglects to hand over the title deed to beneficiaries of expropriation. The beneficiaries cannot as a result thereof obtain financing for their agricultural activities. “The people are sitting in a graveyard and cannot escape,” says Van Zyl.

“We cannot fight the Bill because it does not have legal status yet, but we are preparing ourselves to fight several of the abovementioned aspects in court when the Bill is finally approved and signed by the president. Then we will only need the correct set of facts to approach the court,” Pieterse concluded.

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