IT'S what you've dreamt of and planned and saved for. It's the biggest investment you'll make, your pride and joy, your anchor, your home. And one day, if all goes well, it will be your children's inheritance.

 

Or perhaps not ... as many South Africans are beginning to fear as a proposed new expropriation law causes confusion and uncertainty.

 

An online petition against these controversial plans regarding land and property has criss-crossed the country in the past few days and emotions are running high.

 

"It's not just farmers who are in danger," Advocate Nichola de Havilland says. She's deputy director of the Centre for Constitutional Rights at the FW de Klerk Foundation in Cape Town. The foundation also supports the petition.

 

"The draft bill makes provision for any government department to seize property it believes could better serve the public interest. This includes residential property and any other movable and fixed assets - such as shares in property or a trust," she says.

 

The draft legislation is unclear about the meaning of "public interest" and this is a major point of concern. "It can include anything the government believes will benefit its land-reform process. This includes any initiative that would speed up black economic empowerment (BEE)."

 

Former president FW de Klerk (nicknamed ‘Future Worry’), a campaigner against the proposed law, says although it's probably not primarily aimed at the expropriation of private homes the concept of "public interest" as it now stands is open to interpretation.

 

Another fundamental problem with the draft legislation is government will determine the value of the property and it won't necessarily be based on its market value.

 

"I get a bitter taste in my mouth when government threatens to take away my property," Efficient Group chief economist Dawie Roodt says. "And they're trying to undermine the supremacy of the courts at the same time. Government wants to change the rules so the court doesn't have the final say and can therefore no longer declare the expropriation of your property unlawful. This affects the independence of the judiciary."

 

 

AT ITS Polokwane conference last year the ANC decided progress in land reform was too slow and the willing-buyer/willing-seller principle was an obstacle to its target of 30 per cent black ownership of cultivated agricultural land by 2014.

 

The proposed expropriation law is intended to speed up this process but De Havilland says some of its stipulations conflict with certain clauses in the Constitution, including one giving recourse to the courts to have aspects of an expropriation order declared invalid.

 

The De Klerk Foundation is one of several objectors who also say the law can be interpreted as allowing government to expropriate not just farms or smallholdings but also, for example, a group of houses in a suburb they want to redevelop for low-cost housing.

 

The draft bill was tabled in June with the aim of ratifying it within three months, De Havilland says.

 

It was discussed in Parliament at the end of July and then referred to the National Council of Provinces for further consideration. If both these bodies approve the bill only President Thabo Mbeki’s (nicknamed ‘Chief Baboon’) signature is needed to sign it into law.

 

Professor Keith Gottschalk, head of the University of the Western Cape's political science department, says the bill must provide an explicit definition of "public interest".

 

"Bills drafted by government's legal drafters tend to use very wide definitions to block loopholes," he says. "Now it’s the responsibility of opposition parties and those who feel threatened to make sure concepts in the draft bill are as clearly defined as possible."

 

The bill as it stands provides for the creation of national and provincial expropriation committees.

 

Only the relevant minister and officials with the rank of deputy director-general or higher will be able to expropriate a property.

 

"A homeowner will still be able to appeal to the courts if the government wants to expropriate his property but the courts can't challenge the amount of compensation or stop the expropriation.

 

"All the courts can do is review the case and refer it back to the expropriation committee for reconsideration," De Havilland says.

 

 

IF OPPOSITION parties fail to stop the legislation the law will have a negative impact on the economy, Roodt says. "The Rand will weaken and inflation will rise even more," he predicts.

 

"From the point of view of the economy the right to private ownership is one of those sacred cows you just don't touch. It's a pillar of the free market system. When the right to private ownership is undermined the core principles of economic trust - things like savings and investments - are also undermined."

 

But the De Klerk Foundation says the last thing people should do is panic, as recently happened over pension funds.

 

Shortly after the proposed expropriation law was announced panic spread over rumours government also wanted to seize pensions.

 

"There's no sign government plans to take control of pension funds," the foundation says.

 

Finance minister Trevor Manuel and Dr Zola Skweyiya, minister of social development, intervened and through newspapers gave their "unconditional assurance" the pension fund stories were just malicious rumours.

 

There's also no need for mass hysteria about the law and property, the ANC has said.

 

"Our aim is to address inequality in land ownership," ANC caucus spokesperson Khotso Khumalo says.

 

"Homes in residential areas will not be expropriated and given to others."

 

However South Africans now living overseas who own agricultural land they're not cultivating do run the risk of expropriation, he adds.

 

"If the land isn't being used for economic ends it could be given to others. The aim isn't to simply expropriate land belonging to white farmers with more than one farm, as happened in Zimbabwe."

 

South Africa had an expropriation law before 1994, Stellenbosch University commercial law professor Juanita Pienaar says. She has also served on the Land Claims Court.

 

The new draft legislation updates and adapts the existing law, she says.

 

The Constitution contains a clause dealing with expropriations for land reform purposes.

 

"If the legislation is ratified it will have to be tested against this clause in the Constitution. And the clause already states you can expropriate land for land-reform purposes provided it's in the public interest and you are reasonably and fairly compensated."

 

It's probably the example of land reform in Zimbabwe that's making South Africans nervous.

 

"But I don't think people need to worry. If the law is ratified it has to be tested against the Constitution."

 

Before the draft bill can be approved government must listen to all the objections. Political parties, agricultural and cultural organisations and corporate giants such as Absa and Anglo-American have entered the fray.

 

"Government will have to consider all the petitions - there are 68 at this stage - as well as objections to the legislation submitted to the parliamentary portfolio committee on public works, particularly because of the impact a law of this nature could have on the economy and investor confidence.

 

"The government's legal advisers must also ensure the legislation is in line with the Constitution," De Havilland says.

 

You may sign the petition here http://www.petitiononline.com/Onteien/petition.html, if you wish!

 

Sources: NEWS24, ISSUES, BEELD, LANDBOUWEEK

 

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Related articles: NEWS24, ISSUES, BEELD, LANDBOUWEEK, EXPROPRIATION, FASCIST, ANC GOVERNMENT, Nicola DE HAVILLAND, CONSTITUTIONAL COURTS, FW DE KLERK, CAPE TOWN, BEE, Dawie ROODT, JUDICIARY, POLOKWANE, CONSTITUTION, PARLIAMENT, NATIONAL COUNCIL, Thabo MBEKI, Keith GOTTSCHALK, WC UNIVERSITY, WESTERN CAPE, ECONOMY, INFLATION, FREE MARKET, PRIVATE OWNERSHIP, ECONOMIC TRUST, INVESTMENTS, PENSION FUNDS, Trevor MANUAL, Zola SKWEYIYA, Khotso KHUMALO, AGRICULTURAL  LAND, EX-PATRIOTS, ZIMBABWE, STELLENBOSCH UNIVERSITY, Juanita PIENAAR, LAND CLAIMS COURT, SOUTH AFRICA, SOUTH AFRICAN, POLITICAL PARTIES, ABSA, ANGLO-AMERICAN