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Expropriation process needs an ombudsman

MAIN IMAGE: Zukiswa Pikoli

Zukiswa Pikoli

Communities must have a say about which land needs to be expropriated and must be able to lodge objections on any intended expropriation. In this regard, an ombudsman could balance the dynamic between officials and communities.

This is according to land activist Nomzamo Zondo, executive director of the Socio Economic Rights Institute. She recently shared her thoughts on what was missing in South Africa’s Expropriation Bill and what she thought should be included if South Africa was going to achieve land reform and redress.

She said what the new bill had got right was that unregistered rights were now recognised, which had not been the case previously.

“The reason we find ourselves in our current position is because of government’s slow pace of land reform and its failure to – as stated in section 25 of the Constitution – contribute to an environment that ensured people’s access to land and secure land tenure, and, in the absence of that, comparable redress,” Zondo said.

She maintained that the bill had had no real engagement with the people who would become beneficiaries, which was a weakness.

“If this act is enacted into law tomorrow as it stands, it would give them [government] the very same powers they had. If they wanted to expropriate for housing, they could expropriate as municipalities, in terms of the Housing Act.

“They could first make an offer to purchase. If they can’t purchase then they would expropriate. They haven’t exercised that power, so how do we move from that?” asked Zondo.

Unfortunately, she said, according to the current system we only had records of “who owns the land”, meaning that more than “60% of our population is not seen because they don’t own land and therefore they are not seen or catered for. This needed to be addressed, because seeing everyone was key to making progress in land redistribution.

Zondo pointed out that part of the failure of redistribution had been corruption and inefficiencies. This was why people who had submitted restitution claims 10 to 20 years ago were still waiting – something that would need to be addressed by the bill.

She added that this was the reason that transparency and monitoring of the bill needed to be discussed. Without this, the government could expropriate at will or “elite capture” could take place, where people with access to government ministers and officials with power would be the only ones benefiting.

“Expropriation could not be activated by the government only. The citizenry needed to be able to activate it too, so there needed to be scope within the bill for this to come from civil society, allowing engagement between the people and the minister of public works, and later the minister of land reform,” emphasised Zondo.

She said to make an accurate assessment of the problem and measure progress being made, it is necessary to know how many people are landless. Currently there isn’t sufficient data on, for example, of people living in informal settlements or backyards, or people unlawfully occupying buildings.

Government must look at ways to update the system to give a more accurate and comprehensive picture – not just of the current landowners.

Zondo said the first attempt at transparency she had identified in the bill was section 26, which stipulated that for every intended expropriation, a notice had to be given to the minister of rural development, which was information meant to be made public by the ministry. However, this process was still too far removed from communities.

“Communities has to have a say about what land needed to be expropriated. They also have to be able to lodge objections on the intended expropriation and be able to see the broader national picture,” Zondo said.

“It doesn’t help us to have a bill that gives government power when we can’t hold it accountable.”

One of the suggestions being made was for an ombudsman who would be able to hear the voices of communities in relation to intended expropriation as a way to balance the dynamic between officials and communities.

“As long as the voices of communities are not included in the expropriation process, we are not going to go very far in terms of the bill’s intended purpose. That’s why we are so [motivated] when it comes to this bill… because 27 years later we haven’t moved very far,” said Zondo.

Editor’s note: This is an edited excerpt from the article ‘Land activists: Without the voices of communities, the Expropriation Bill will not go very far’ which appeared in Daily Maverick on 2 February 2021 and is published here with permission from the author.

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