Veiled threat to religious freedom in Expropriation Bill? — FOR SA

By Freedom of Religion South Africa

The controversial Expropriation Bill is back in the news as hearings take place in provinces around the country. The expropriation of property, including land, is a contentious issue and many South Africans are unaware of its far-reaching implications. Its potentially adverse consequences even impact religious freedom because many religious organisations own the land upon which their church, mosque, synagogue or training centre has been built. 

The Expropriation Bill was introduced in Parliament back in October 2020. It has already been passed by the National Assembly (NA), the first house of Parliament, in September 2022. The Bill is now before Parliament’s second house, the National Council of Provinces (NCOP), which has already invited the public to comment on the Bill. Since the Bill affects the provinces, each provincial Parliament (or legislature) must also facilitate public engagement. For example, the Western Cape Provincial Parliament has invited written comments on the Bill and is now hosting public hearings. FOR SA will be making a verbal submission this week to highlight the lack of proper protection for the property rights of religious organisations. 

By way of background, the general objective of the Bill allows for the expropriation of land and certain land-related property rights for which potentially zero compensation will be paid.  However, the definition of “property” in the Bill is not limited to land. This makes it over-broad because it could include any other type of property. If the definition of property is not explicitly limited to land and land-related rights, “property” could mean anything from land to intellectual property or even the clothes on your back. The bill lists criteria that must be considered before expropriation without compensation (EWC) can occur, but it is an “open” list, which precludes legal certainty and is potentially open to abuse. Neither does the bill provide for judicial oversight in scenarios where property is expropriated on an urgent basis. There are also no exceptions for certain types of land – specifically land used for religious purposes.

FOR SA’s objections to the bill focus solely on the potential expropriation of “church” land and/or land used for religious purposes. As the bill stands, faith communities can potentially see their land and other property being expropriated or taken away against their will and without any compensation. The Constitution protects the fundamental right to religious freedom, which includes the right to practice one’s faith in a community with others, which includes forming, joining, and maintaining religious associations – which can and often do own property. FOR SA is also concerned that this Bill is potentially in conflict with Section 25 of the Constitution, which specifically protects property rights and also requires just and equitable payment for property. 

It is evident, should a Christian faith community lose, for example, its church building, that this will have a disastrous impact on their right to practice their religion in a communal setting. It is also counter-intuitive that the bill fails to protect property owned by faith communities, since in the vast majority of cases, this property will be used as a community asset and their work and mission will benefit the local community. Religious organisations are frequently involved in community upliftment projects and are typically the “first responders” in the event of a natural disaster. 

In all its submissions on this Bill on behalf of South Africa’s faith communities, FOR SA has called for:

1. The (currently) overbroad definition of “property” to be limited to land and appropriate land-related property rights.
2. An exemption clause to be inserted to prevent any expropriation of land owned or used specifically in connection with the constitutional right to religious freedom and the rights of religious communities.
3. The removal of all provisions that allow for EWC or, if Parliament retains the provisions that allow for EWC, restricting the criteria for EWC to a “closed” list to avoid legal uncertainty.
4. The Constitutional Court to be approached for a declaratory order regarding whether the proposed “nil compensation” in certain clauses of the bill qualifies as a “just and equitable” payment as required by the Constitution. (FOR SA is convinced that EWC falls foul of section 25 of the Constitution.)
5. Provisions to be included in the Bill requiring appropriate judicial oversight where property is expropriated on an urgent basis. In other words, the matter must first be considered by a judge.
6. FOR SA also intends making verbal submissions to the NCOP once it hosts its own public hearings – and has specifically requested an opportunity to do so. The NCOP public hearings are expected to be hosted after the public hearings in the provincial Parliaments have been concluded.
7. Should the Bill be passed by the NCOP, it will go to the President to be signed into law.

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