This Article is written by Bamanye Gqanabisa, a Third-year law student of Nottingham Trent University

The Impact of Recent Amendments to South African Property Law

However, property law has emerged as a highly dynamic area of regulation in South Africa in the past few years as a result of dynamic socio-economic environments, new policies, and judicial scenarios. Such modification represents the development of the legal regime that tried to meet the demand to protect property rights and redress past grievances at the same time. In this post, I will discuss the changes that have recently occurred in property law and their relations to private property, the black people’s struggle for the land, and the expropriation in South Africa.

1. Introduction to South African Property Law

culturally, the legal overlay of property rights in South Africa stems from the Roman-Dutch common law but borrowed heavily from the English legal pragmatic framework. The legal framework governing property rights in South Africa is the Constitution of the Republic of South Africa, 1996 commonly known as the Constitution Since property rights have a particularly critical bearing on the social, political, and economic order of a society and since section 25 of the Constitution of the Republic of South Africa, 1996 commonly referred to as the “property clause” regulates property rights in South Africa and architecture principles of land reform and restitution as mechanisms

The clash between the protection of private property and the reform of property rights through implementing a fair and progressive system of land distribution has culminated in different legal reforms and suggestions. The most recent developments include the 2020 Expropriation Bill.[1], variation to the Sectional Titles Act, and developed understanding of Section 25[2] On the expropriation without compensation.

2. The Expropriation Bill of 2020: A Landmark in Property Law

Another one among the landmarks of recent years is the Expropriation Bill of 2020[3] That appeared in efforts to respond to the immensely discussed state practice concerning the expropriation of land without compensation. The purpose of this Bill is to repeal the current Expropriation Act 63 of 1975 and set the law of expropriation by the Constitution. The Bill spells out factors that can lead to expropriation and more importantly, contains provisions for situations where no compensation will be paid.

2.1. Key Provisions of the Expropriation Bill

Some of the key provisions of the Expropriation Bill include the following About compensation in terms of section 25 of the Constitution, subsection (3) of the Bill states that the amount of the payment to be made as compensation by a responsible authority must be determined by sections 24 and 25 of the constitution;

Expropriation Without Compensation: According to provisions of the new Bill land grabbing without compensation is unlawful but there are conditions under which it is permissible. Such situations are using the land; where the land is vacant or the property is vacant; where the market value of the property is less than that of the debt being secured by the property or; where the purpose of holding the land is speculative. This can be considered as a big change in the regular property law which recognized that compensation must be paid each time that someone’s land is taken for public use.

Expropriation for Public Purpose and Public Interest: The Bill also restates the principles that entail expropriation stating that it has to be done for a public purpose or in the public interest. This includes objectives by the reforms that deal with land, the development of urban structures, as well as other public works.

Procedural Safeguards: To safeguard property owners’ interests, the Bill provides for several procedural mechanisms. These are; sufficient notice and the right to challenge the taking in a court of law, this will ensure that the process is fair, open, and acknowledges the rule of law.

2.2. Constitutional Alignment

The Expropriation Bill is intended to complement section 25[4] Of the Constitution that outlines the expropriation of a property for the public interest especially on the question of land. It may however be argued that the Bill modifies the right to private property in that the government has been empowered to take over land without providing compensation but only under specified circumstances. So, the inclusion of procedural safeguards is crucial in making sure the provisions of the Bill do not transgress the Constitution.

2.3. Impact on Land Reform

The Expropriation Bill is a very useful instrument in the process of speeding up land redistribution which, in turn, is one of the main components of South Africa’s transformational development. This continues to be a preserve of a few mainly white individuals, while the majority African black population continues to struggle with little or no land to call their own. The Bill specifically seeks to help with the expropriation without compensation in specific circumstances to enhance the pace of land redistribution among disadvantaged persons.

3. Amendments to the Sectional Titles Act

Another advancement in property law is the Sectional Titles Amendment Act of 2021[5]. This Act governs sectional title schemes that permit the ownership of units within a multiplied-unit building while the ownership of the common property (passages, yards, and parking space) is also shared among each unit owner. The amendment also brings some changes, whose purpose is to enhance the management of the sectional title schemes and to provide the unit owners more rights.

3.1. Key Amendments

Sectional Title Development Schemes: The Act also brings new rules that seek to ease the process of establishing sectional title schemes while making the developers provide additional information to those intending to purchase the units. This covers; the extent of financial responsibility, restrictions on the use of exclusive areas, and use of common property.

Enhanced Protection for Owners: Owners of units now have better recalling powers when it comes to passing important matters in a scheme as well as having access to accounts of the schemes. This is to avoid poor management by body corporates and to damage the interests of unit owners.

Developer Obligations: It is now mandatory for the developers to produce a certificate that has been issued by a land surveyor or architect to ascertain that parts of sections and exclusive use areas have been accurately outlined. This has the added advantage of making the situations more transparent and reducing problems associated with issues such as the size and specialized layout of individual units.

3.2. Impact on Property Ownership

The changes to the Sectional Titles Act prevent any unfair dealing of the properties in the sectional title schemes by the developers and increase accountability. The amendments lead to a decrease in future controversies since the developers are faced with a condition to reveal most of the essential details to the buyers.

4. Expropriation Without Compensation: Legal and Economic Implications

The shift towards ‘ousting without compensation,’ has therefore elicited a great deal of controversy. Supporters have claimed that it is a process that concerns past wrongs and the feeling that the ownership right of land should go to the majority who are without it. Critics, on the other hand, give way to the likely effects on property rights, foreign investment, and economic stability respectively.

4.1. Legal Implications

As a matter of legal concern, expropriation without compensation is a doctrine that creates concern about the protection of private property and the government’s intervention to protect the interest of the public at large. Section 25[6] The Constitution addresses the question of the protection of individuals from arbitrary loss of property while it allows the state to effect transfers of land for land reform. The legal issue therefore is whether the omission of compensation can be justified under Section 25(3)[7] That gives a mandatory requirement on what should be paid to the affected party is that it should be ‘just and equitable’ regarding the following factors of the public interest.

The role of the courts especially the apex courts will be very central in the determination of these provisions especially about the constitutionality of the expropriation without compensation. In the past, the judiciary has expressed a readiness to advance reform of the tenure of land while, at the same avoiding transgression of the constitutional rights of property owners.

4.2. Economic Implications

These happen when people’s property is taken away or when they or their companies are deprived of property without being compensated. Certain policies that have previously been suggested by some critics are likely to dissuade international investments and also destabilize the property as well as negatively affect its agricultural output. Holders of property rights may consider South Africa as a less suitable destination for investing if the property rights are seen as threatened.

Nevertheless, advocates have reasoning that the issue of land is crucial to social equity and for sustainable economic development. Through the distribution of the Equitable Access to Lands Act, the government aims at trying to increase production, provide disadvantaged groups an opportunity to be empowered and have ownership, and make the growth of the agricultural sector more balanced.

5. Judicial Developments: Recent Case Law

Other South African property law dimensions to recent case law have also charted the direction of this area of the law. For instance, the Constitutional Court having expounded on the rights of property and the nature of land reform has delivered several judgments as will be noticed henceforth.

5.1. Daniels v Scribante

As it has already been mentioned in Daniels v Scribante (2017)[8], the Constitutional Court enlarged the rights of occupants staking on private property. The case centered around a female domestic worker, who wished to renovate a shed on a farm, contrary to the wishes of the owner. The court found that the right to dignity and housing enabled her to effect reasonable alterations to the property even if the owner had not given the green light to the same. This case is a good example of the court’s intention to recognize the rights of property owners but also protect the interests of other individuals and the economy of the country.

5.2. Agricultural Land Holdings Bill

At present, the very Agricultural Land Holdings Bill[9] Is still up for debate and this has introduced provisions on the restriction of the maximum size of agricultural land holdings and for the increase in the ownership transparency of land especially those owned by foreigners. It is, however, not a law yet it implies new approaches to the regulation of agricultural property and a specific role of the state in the organization of the land distribution.

6. Conclusion

This contribution suggests that the most recent alterations to the South African property law reveal the ongoing struggle to meet the imperatives of protecting property rights as well as responding to the demands of reforming the distribution of land. The Expropriation Bill of 2020[10] and changes to the Sectional Titles Act[11] Are works of recent years, and the latter, in particular, are a crucial step towards correction of the historical injustice, on the one hand, and protection of property rights and promoting the principles of legally reasoned expropriation, on the other hand.

Therefore the effect of these amendments will be evident based on the interpretation of these amendments by the judiciary. Although land reform is aimed at satisfying the quest for social justice, the problem that faces most countries is how to do it in a way that will not compromise the stability of the economy or discourage investors from investing.

Altogether, the social and further developments of the South African property law will remain a continual process as the future of the country tries to address the past Mistakes. The future of property law in the country will be determined in equal measure by the courts, the legislature, and the public.

REFERENCES-

[1] Expropriation Bill 2020

[2] Sectional Titles Act

[3] Expropriation Bill 2020

[4] Constitution of the Republic of South Africa1996

[5] Sectional Titles Amendment Act of 2021

[6] Constitution of the Republic of South Africa1996

[7] Ibid

[8] Daniels v Scribante and Another (CCT50/16) [2017] ZACC 13; 2017 (4) SA 341 (CC); 2017 (8) BCLR 949 (CC) (11 May 2017)

[9] Agricultural Land Holdings Bill

[10] The Expropriation Bill of 2020

[11] Sectional Titles Act 2021