Creaci´ on del diagrama de bloques

South Africa is currently in the process of enacting the Expropriation Bill. This will repeal the Expropriation Act 3 of 1975. The Constitution does not specifically define

expropriation. In the case of Harksen v Lane,775 _{expropriation was defined as “the}

771 _{The umbrella clause is a clause that is inserted into a BIT by which both parties make a} commitment to each other to observe any obligation assumed by the conclusion of the BIT. See Salacuse J W The law of Investment treaties 271.

772 _{Chaisse J and Bellak C “Navigating the expanding of international treaties on foreign investment:} creation and use of critical index” 2015 Journal of International Economic Law 86-87.

773 _{See s 24(b)(iii) of the Constitution.}

774 _{Subedi S P International Investment Law: Reconciling Policy and Principle (2012) 59.} 775 _{The Harksen v Lane NO 1998 (1) SA 300 (CC).}

compulsory acquisition of rights in property by a public authority”.776 _{The Expropriation}

Bill also contains a similar definition to the Harksen case.777 _{This does not mean that}

the state must be the ultimate beneficiary in all cases for there to be expropriation.778

The Expropriation Bill provides for compensation for expropriation,779 _{and owners will}

be offered a certain amount for their property as determined by the Valuer-general.780

The amount offered will take into account, not only market value but also the purpose of the expropriation, the current use of the property, its history of acquisition, and the extent of direct state investment in the property,781 _{all of which serve to essentially}

discount the price from its market value.

The Expropriation Bill allows the owner to challenge the compensation offered, but the

owner would have to vacate the property782 _{and would still be expected to maintain it}

until ownership changes.783 _{This is problematic because an owner could relinquish the}

full value or use of their principal asset for the duration of a court case which might

drag on for years.784 _{Because litigation is expensive and the outcome uncertain,}

owners would also be under considerable pressure to accept the initial below-market value.785

Furthermore, the Bill does not contain the ‘prompt, adequate and effective’

compensation principles contained in the third generation BITs to which South Africa is a party. In essence, the Expropriation Bill will enable the state to pay for land at a value determined by a government adjudicator and then expropriate it in the national interest.786 _{Should the Expropriation Bill come into force, it will effectively scrap the}

776 _{Id at para 36.}

777 _{Section 3(1) of the Expropriation Bill.}

778 _{Gray-Parker J “Why you should be concerned by the Expropriation Bill?”}

http://www.privateproperty.co.za/advice/news/articles/why-you-should-be-concerned-by-the- expropriation-bill/4573 (Date of use: 12 December 2016).

779 _{Section 13 of the Constitution.}

780 _{Valuer-General is an office created by the Property Valuation Act 17 of 2008.} 781 _{Section 12.2 of the Expropriation Bill.}

782 _{Section 6.3 of the Expropriation Bill.} 783 _{Section 9.3 of the Expropriation Bill.}

784 _{Gray-Parker J “Why you should be concerned by the Expropriation Bill”}

http://www.privateproperty.co.za/advice/news/articles/why-you-should-be-concerned-by-the- expropriation-bill/4573 (Date of use: 12 December 2016).

785 _Ibid. 786 _Ibid.

current ‘willing buyer-willing seller' approach to land reform787 _{and it will essentially}

form part of a number of other pieces of legislation, which have already come into force or are being proposed with a view to rectifying the imbalances brought about by apartheid.788

The way in which the government is tackling the land restitution issue has garnered criticism from all corners and has raised concerns about the stability of property

rights.789 _{The Democratic Alliance}790 _{argues that even though it is not opposed to}

expropriation, the party is concerned that ‘property’ was not defined which could mean

that even intellectual property could be expropriated.791

In terms of Section 1 of the Expropriation Bill, public interest includes the nation’s commitment to land reform, and reforms to bring about equitable access to all South Africa’s natural resources and other related reforms in order to redress the results of past racial discriminatory laws or practices. Public purpose includes any purposes

connected with the administration of the provisions of any law by an organ of state.792

Indeed, as things stand, it would seem that property of any kind could be expropriated for any reason that could be described as a ‘public purpose’, or ‘in the public interest.

Jeffery793 _{argues that the Expropriation Bill in its current form is as unconstitutional as}

its predecessor, the Expropriation Act of 1975 and it leaves property owners open to massive losses should the government decide to expropriate their homes, land or other property.794

Just like the Protection of Investment Act, the Expropriation Bill has received criticism. The main concern is that the government is attempting to implement unconstitutional

787 _Ibid.

788 _Ibid. 789 _Ibid.

790 _{Democratic Alliance hereinafter referred to as the DA).}

791 _{Dreyer A “DA to oppose problematic Expropriation Bill” https://www.da.org.za/2016/02/da-to-} oppose-problematic-expropriation-bill/ (Date of use: 15 December 2016).

792 _{Section 1 of the Expropriation Bill.}

793 _{Jeffery A is a head of policy research at the Institute of Race Relations.} 794 _{Jeffrey A “The New Expropriation Bill is out and it’s still unconstitutional”}

http://www.biznews.com/thought-leaders/2015/02/18/new-expropriation-bill-still-unconstitutional/ (Date of use: 15 December 2016).

measures with regard to expropriation.795 _{The Expropriation Bill has alarmed foreign}

investors that South Africa maintains intentions to create conditions that are favourable

for the expropriation of foreign investors’ property.796 _{They are concerned that}

replacing a treaty between nations with municipal law makes foreigners susceptible to host state politics.797

Furthermore, foreign investors are alert to the threats being made by the ANC Youth

League,798 _{the Economic Freedom Fighters,}799 _{the National Union of Metalworkers of}

South Africa800 _{and other political formations with regard to policy changes that will}

allow expropriation and nationalisation of their property.801 _{The EFF, in its 2014}

Election Manifesto, called for the nationalisation of land, banks and other strategic

industries without any compensation.802

Furthermore, the ANC as the ruling party used its majority vote on the portfolio committee to have the Expropriation Bill adopted even though the opposition parties

voted against it.803 _{The DA raised 21 objections, including that the key terms ‘property’,}

‘valuer’804_{, ‘expropriation’ and ‘owner’ were so loosely defined that they could have}

unforeseen consequences. The DA Member of Parliament Dreyer805 _{raised the issues}

as to how the value of land was to be determined, and that the authorities can,

theoretically, take ownership before making any payment.806

795 _Ibid.

796 _{Ngwenya M The promotion and protection of foreign investment in South Africa: a critical review of} Promotion and Protection of Investment Bill 2013 2015 University of South Africa Thesis (unpublished LLD thesis) 4.

797 _Ibid.

798 _{African National Congress Youth League (hereinafter referred to as the ANC Youth League).} 799 _{Economic freedom Fighters (hereinafter referred to as the EFF).}

800 _{The National Union of Metalworkers of South Africa (hereinafter referred to as NUMSA).} 801 _{Gray-Parker J “Why you should be concerned by the Expropriation Bill?”}

http://www.privateproperty.co.za/advice/news/articles/why-you-should-be-concerned-by-the- expropriation-bill/4573 (Date of use: 12 December 2016).

802 _{EFF “Economic Freedom Fighters Founding Manifesto: Radical movement towards economic} freedom in our lifetime” http://effighters.org.za/documents/economic-freedom-fighters-founding- manifesto/ (Date of use: 15 December 2016).

803 _{“The Expropriation Bill adopted despite ‘no votes” from all opposition parties”}

https://www.google.co.za/?gws_rd=ssl#q=The+Expropriation+Bill+adopted+despite+%E2%80%98no+ votes%E2%80%9D+from+all+opposition+parties (Date of use: 15 December 2016).

804 _{In terms of section 1 of the Expropriation Bill, Valuer means a person registered as a professional} valuer or professional associated valuer in terms of section 19 of the Property Valuers Profession Act 47 of 2000.

805 _{Dreyer A is a DA Member of Parliament.}

806 _{Mail & Guardian “Parliament approves land expropriation Bill” http://mg.co.za/article/2016-05-26-} parliament-approves-land-expropriation-bill (Date of use: 15 December 2016).

The EFF807 _{opposed the Expropriation Bill because the party advocates expropriation}

without compensation to white owners, claiming that the land was stolen from black

South Africans.808 _{The Inkata Freedom Party}809 _{argued that the provisions of the}

Expropriation Bill stipulating that the expropriated owner of a property remains responsible for the upkeep of the property after the expropriation has taken place, is

nonsensical.810 _{The UDM}811 _{opposed the Expropriation Bill because the definition of}

‘property’ was too limited and that the land dispossession compensation date should

be prior to 1913.812

From the above, it is clear that the Expropriation Bill has many loopholes and that, in its current form, may give rise to many constitutional issues and investment disputes in future.

5.5 THE BROAD-BASED BLACK ECONOMIC EMPOWERMENT ACT 53 OF 2003