land expropriation without compensation 16 May 2018

Transcription

1 land expropriation without compensation 16 May 2018

2 agenda 01 section 25 of the constitution Pippa Reyburn corporate commercial director 02 land restitution Andrew Bembridge property and real estate director 03 impact on mining Ntsiki Adonisi-Kgame natural resources and environment director

3 section 25 of the constitution Pippa Reyburn corporate commercial director Pippa is a director in ENSafrica s corporate commercial department. She specializes in public procurement, public sector financial management, infrastructure projects (including public private partnerships), as well as structures of government, public sector corporate governance and transactions, and constitutional administrative law. Some of Pippa s other areas of experience include broad-based black economic empowerment, municipal law and medical schemes.

4 section 25 of the constitution property section 25 section 25 transformational mandate property is not limited to land section 25 section 25 protection of existing property rights deprivation of property

5 land reform under section 25 land redistribution security of tenure land restitution

6 expropriation of property under section 25 what is expropriation? how may property be expropriated? how may property not be expropriated?

7 compensation for expropriation just compensation equitable having regard to all relevant circumstances

8 compensation proviso does section 25 already permit expropriation without compensation? section 25(8) expropriation which is inconsistent with section 25 must comply with the general limitations clause section 36(1) general limitations clause

9 the parliamentary review process motion proposed by the EFF, amended by the ANC and adopted by the National Assembly (NA) on 27 February 2018 (extract below): recognizes that the current policy instruments, including the willing buyer willing seller policy, and other provisions of section 25 of the Constitution may be hindering effective land reform; notes that in his State of the Nation Address, President Cyril Ramaphosa, in recognizing the original sin of land dispossession, made a commitment that Government would continue the land reform programme that entails expropriation of land without compensation, making use of all mechanisms at the disposal of the State, implemented in a manner that increases agricultural production, improves food security and ensures that the land is returned to those from whom it was taken under colonialism and apartheid and undertake a process of consultation to determine the modalities of the governing party resolution..."

10 parliamentary review process National Assembly + National Council of Provinces Constitutional Review Committee Public participation process written submissions by 15 June 2018 Report to the National Assembly by no later than 30 August 2018

11 important considerations special majority is required for the amendment of section 25 the Expropriation Bill has been parked section 25 is not the cause of failures in land reform any constitutional amendment permitting expropriation without compensation is likely to be qualified / limited

12 thank you

13 restitution of land Andrew Bembridge property and real estate director Andrew is a director and head of ENSafrica s real estate and property department. He has acted for a number of notable mining companies, banks and property development companies. Andrew has been involved in many major property transactions throughout Africa. His experience encompasses developments such as township proclamations, land use applications, water projects and environmental and heritage applications. Andrew s experience further extends to extensive commercial property transactions, involving immovable and movable property, the drafting of intricate agreements and the implementation of the transactions arising out of those agreements. He also has extensive experience in the land rights and restitution laws of South Africa, assisting both land owners and communities and has served as a member of the Johannesburg Attorneys Association Property Law Committee.

14 restitution of land rights act 22 of years ago The main driver of redistribution of land

15 restitution procedure establishment of commission to receive claims

16 entitlement to restitution entitlement to restitution if dispossessed of land after 1913 by racially discriminatory laws direct descendants of such a person lodged a claim by December 1998 if claim lodged and not frivolous or vexatious, it is published in the Gazette

17 restitution procedure section1 2 commission to investigate section 13 commission may mediate section 14 commission may refer claims to court section 42D minister may enter into an agreement with interested parties

18 extension for filing land claims July 2014 July 2016 June 2019 redistribution of Land Rights Amendment Act Constitutional Court rules Amendment Act unconstitutional time for lodging claims extended All new claims on hold

19 why has restitution not succeeded? lack of proof of evidence hearsay of past generations lack of budget transfer of land to communities CPA/Trust no individual title when transfer to a community Sale of restitution land for immediate cash benefit Failure to restore agricultural enterprises to communities

20 process not complete claims lodged but not finalised new claims not finalised extension to 2019 awaited

21 no alternative legislation legislation for redistribution of land within the constitutional framework is required

22 expropriation expropriation not used to achieve restitution willing seller avoids difficulty of proof

23 expropriation without compensation expropriation without compensation does not mean expropriation without reason must still be in the Constitutional Framework

24 thank you

25 impact on mining Ntsiki Adonisi-Kgame natural resources and environment director Ntsiki is a director in ENSafrica s natural resources and environment department. She specialises in all aspects of mining law. She acts for a wide range of mining companies in all mineral commodity sectors, including the base and precious metals, coal, rare earths, sand and diamonds sectors. Ntsiki s expertise include advising on mining aspects of equity and asset acquisitions, disposals and corporate restructuring, conducting mining due diligences, execution and registration of mining titles and black economic empowerment transactions. Her experience further includes all aspects of regulatory work in the mining industry, for listed and unlisted senior, mid-tier and junior companies.

26 legislation the Mineral and Petroleum Resources Development Act ( MPRDA ) the common law the state as custodian

27 Iegal nature of mining titles limited real rights by virtue of being a limited real right, the relevant landowner is deemed to be aware of the existence of the mining titles on the relevant property through the doctrine of constructive notice

28 s e c t i o n 5 ( 3 ) o f t h e M P R D A s t a t u t o r y r i g h t t o a c c e s s t h e l a n d statutory right to access the land mining title holders afforded a statutory right right to bring any plant, machinery, or equipment and build, construct or lay down any surface underground or under sea infrastructure mine for minerals use water remove and dispose of the minerals found carry out activities incidental to mining provided they do not contravene the MPRDA

29 expropriation in the MPRDA section 54 allows the Regional Manager to make recommendations to the Minister to expropriate land in these instances: landowner refuses to allow entry to land landowner makes unreasonable demands in return for access Landowner cannot be found

30 ministerial power to expropriate for purpose of mining section 55 of the MPRDA read with section 25 (2) and (3) of the Constitution section 55 (2) of the MPRDA and section 6,7 and 9 (1) of the Expropriation Act

31 impact on mining communities Resistance to expropriation without compensation

32 impact on private land owners in terms of section 5A (c) of the MPRDA a mining title holder is not entitled to mine on the land without first providing the landowner or lawful occupier of the land with 21 days notice before the commencement of mining operations mining title holders do not need to own the land on which mining operations are to be conducted no consent required from landowner

33 impact on mining companies no adverse effects on the holders of mining titles because of statutory rights beneficial to the mining industry will impact existing access agreements

34 thank you