A notable feature of the DA’s court challenge to the Expropriation Act is what it does not contain. The DA has been vocal about its opposition to the act on the basis that it allows for “expropriation without compensation”. But its court case does not challenge its nil compensation provision in section 12.
Instead, the court case is self-avowedly a “very narrow challenge” on two grounds. First, a procedural challenge that focuses on the bill’s passage through the National Council of Provinces (NCOP), and second, a challenge to a single section of the act which deals with the intricacies of what happens under the act if there is no agreement on the amount of compensation to be paid.
Speaking to TimesLIVE Premium, Helen Zille, chairperson of the Federal Council of the DA, said the narrow focus of the case was a matter of strategy. “I personally discussed Section 12 at some length with the lawyers,” she said.
The lawyers said it was “possible to challenge [section 12] constitutionally. But if we want a clean win on strong points, we will challenge the very defective process by which the act was passed in the NCOP, as well as its internal contradictions and confusions which render it unconstitutional”.
“If we win the first argument, the act will be thrown out in its entirety, and it will start again at square one, at which point we can have the substantive fight”.
“Our lawyers advised us on the strategy. They have rarely been wrong and I accepted their advice,” said Zille.
The first challenge brought by the DA is a procedural one. The DA says the constitution and the Mandating Procedures of Provinces Act require that at least five provincial legislatures give lawful mandates to their delegates to the NCOP when voting on legislation.
“If the constitutional conditions for the lawmaking processes have not been complied with, then this court has a duty to say so and declare the resulting statute invalid,” Zille said.
Here, five of the seven provincial delegations that voted in favour of the Expropriation Bill had unlawful final mandates, said Zille. The final mandates were given by the speakers of the provincial legislatures, but they were not conferred by the legislatures during a plenary session.
The substantive constitutional flaw in the act, according to the court papers, lies in section 19, which deals with what must happen when an 'expropriating authority' and the owner have not agreed on a compensation amount
And, said Zille, if even one of the mandates was unlawful, it would be enough to poison the whole process because it could have affected the way other provinces voted in the NCOP.“There is just no telling whether, had the provincial legislature acted lawfully, the outcome in the NCOP would have been the same,” she said.
The substantive constitutional flaw in the act, according to the court papers, lies in section 19, which deals with what must happen when an “expropriating authority” and the owner have not agreed on a compensation amount.
The wording of the act is important for the DA's argument: “If the expropriating authority and disputing party do not settle the dispute by consensus or mediation, either party may, within 180 days of the date of the notice of expropriation, institute proceedings in a competent court”.
But, said Zille, a “notice of expropriation” is a defined term and it must include “the amount of compensation agreed upon or approved or decided by a court under section 19”.
So, the act contemplates that the notice must include a court determination, but it also contemplates that a court determination may only come “within 180 days of the date of the notice”.
“It is absurd to require parties to approach a court for the determination of compensation within 180 days of the notice of expropriation. The 180-day period after the service of a notice of expropriation will never commence before a party approaches a court,” said Zille.
“It is absurd and irrational. It is unconstitutional for this reason alone,” she said.
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