1. Expropriation Bill 2015 portfolio committee Public Works public hearing 30 July 2015 1Context: Infrastructure Development Act; SPLUMA; Restitution 2Unregistered and informal rights on communal land 3Compensation and reparation for community livelihood 4Restitution and duplication of investigations 5The land claims court and its challenges

2. NATIONAL INFRASTRUCTURE PLAN 2012: Strategic Integrated Projects Heavy Haul Industrial Haul Electricity Heavy Haul Pipeline Heavy Haul …….. Electricity 2. Enabling socio-economic Unlocking Northern mineral belt Durban-Free State-Gauteng Corridor Development South Eastern Node & Corridor Development Saldanha-Northern Cape Corridor Development 3. Crosscutting Access to communication technology, SKA and MeerKat National school build Higher Education Revitalisation of public hospitals Unlocking the economic opportunities in North West Province 1. Catalytic Greening the South African economy Electricity Generation Electricity Transmission and Distribution Integrated Municipal Infrastructure Integrated Urban Space and Public Transport Agro-logistics and rural Infrastructure Regional Integration 2

3. INFRASTRUCTURE DEVELOPMENT ACT NO. 23 OF 2014 [ASSENTED TO 30 MAY, 2014] [DATE OF COMMENCEMENT: 10 JULY, 2014] 5. Expropriation of land by Commission.— (1) For the purposes of implementing a strategic integrated project, the Commission may expropriate land or any right in, over or in respect of land in terms of the Expropriation Act, 1975 (Act No. 63 of 1975), and, subject to the provisions of this section, the provisions of the Expropriation Act, 1975, apply to any expropriation in terms of this Act. (2) The Commission may only expropriate land or any right in, over or in respect of land after consultation with the organ of state in whose favour the expropriation is to be made. (3) Notwithstanding the provisions of the Expropriation Act, 1975, an expropriation in terms of subsection (1), may be effected— (a) for a public purpose or in the public interest; (b) by the Commission or, at its request, by the Minister of Public Works or by such other Minister as may be determined by the Commission. 3Legal Resources Centre 29 July 2015

4. Land - real example of the challenge experienced in gaining access to land for infrastructure build today – SIPs Strategic Infrastructure Projects EIA, appeals and expropriation can take up to 6,5 years 4Legal Resources Centre 29 July 2015

5. Spatial Planning and Land Use Management Act 2013 Development principles (a)The principle of spatial justice, whereby— (i) past spatial and other development imbalances must be redressed through improved access to and use of land; (ii) spatial development frameworks and policies at all spheres of government must address the inclusion of persons and areas that were previously excluded, with an emphasis on informal settlements, former homeland areas and areas characterised by widespread poverty and deprivation; (b) the principle of spatial sustainability, whereby spatial planning and land use management systems must— result in communities that are viable; Non-impediment of function 57.Without derogating from the provisions of other laws governing the compensation for expropriation, an exercise of a power and a performance of a function in terms of this Act may not be impeded or stopped solely on the ground that the value of a property is affected by such exercise of power or performance of function. 5Legal Resources Centre 29 July 2015

6. Informal and Unregistered Rights on Communal Land 5. (1) When a property is required for a public purpose or in the public interest, an expropriating authority must, amongst others, ascertain— (a) the suitability of the property for the purpose for which it is required, and (b) the existence of registered and unregistered rights in such property and the impact of such rights on the intended use of the property, Provided that where land is held by a community or a community is the holder of an unregistered right in land, an expropriating authority must ascertain, whether provision has been made or will be made for reparation and compensation for relocation of households and the dislocation of the community and its institutions, including (i)alternative land; (ii) alternative livelihoods; (iii)support to re establish the community and its institutions Legal Resources Centre 29 July 20156

7. Compensation and Reparation for communities who lose their communal land S5 Investigation and gathering of information for purposes of expropriation 5(2)(c) authorise a land rights enquiry and appoint a suitable person as an enquirer to investigate and report on the rights affected and the reparation and remedies proposed: Provided that a land rights enquiry shall include an investigation of and report on (a) the nature and extent of all rights including constitutional and human; land and tenure; and competing or conflicting, rights, interests and tenure of land, whether legally secure or not which are or may be affected the proposed expropriation, including the rights of vulnerable groups, women and children, and parts of the community directly affected; (b) the options available for legally securing any legally insecure rights; (c) the provision of access to alternative land on an equitable basis; (d) the need for reparation and comparable redress and the nature and extent of such redress. Legal Resources Centre 29 July 20157

8. Compensation and reparation “compensation” means, in the case of compensation to a community, reparation and comparable redress which may include the provision of suitable alternative land and amenities to re establish liveli hoods and community, and, where appropriate, arrangements for community benefit sharing in any development on the expropriated land. “community” “suitable alternative land” Legal Resources Centre 29 July 20158

9. Duplication of effort In certain cases of restitution, where the matters are actually before the land claims court, and not dealt with administratively by the commission, the investigations under chapters 3 and 4 have already been dealt with by the court itself. amending section 42E of the Restitution Act in this bill : (2) The Expropriation Act, … of 2016 1975 (Act 63 of 1975), shall, with the necessary changes, apply to an expropriation under this Act, and any reference to the Minister of Public Works in that Act must be construed as a reference to the Minister for the purpose of such expropriation: - Provided that the Court [ie the Land Claims Court] when making an order under section 35 of this Act, may direct that the provisions of chapters 3 and 4 of the Expropriation Act shall not apply to the relevant expropriation under this Act. Legal Resources Centre 29 July 20159

10. Other challenges Land claims court and the irony of the MalaMala judgment Valuer General Consider Planning Tribunals under SPLUMA provincial statutes and municipal by laws for third party fact/price finding The bind: demoralisation costs v settlement costs Legal Resources Centre 29 July 201510

11. What is required is mining law reform and land reform implementation What is required is mining law reform and aggressive land reform implementation [including spatial planning and land use management implementation and long awaited communal land tenure statute law] to promote integrated rural development planning and implementation and address, by way of reparation and participation measures, the dislocation of rural economies and communities as a result of discriminatory land and mining law over a period of a century and longer. What is required of expropriation law is to ensure that, in the case of new mining and infrastructure development, affected communities and in particular displaced communities on communal land are equitably compensated in kind and financial terms. Equitable redress may include alternative land and accommodation, productive land, institutional support,. community participation and benefit sharing. Legal Resources Centre 29 July 201511