The Expropriation Bill was adopted by the National Assembly on 28 September 2022, South Africa’s third attempt since 2008 to replace apartheid legislation still in force. The adopted bill, first tabled in 2020, allows expropriation only for “public purpose” and in the “public interest”, as stipulated in section 25 of the Constitution, also known as the property clause. Now, apart from “just and equitable compensation”, it opens the possibility for expropriation without compensation to be considered in specified instances, such as abandoned land, state land or land held for speculative purposes.

Despite the acknowledged challenges and failures of the state’s land reform programme to date, it is useful to think through what this bill means for human settlements in an urban context, and what links the bill could have to informal settlement upgrading and the shift in focus to rapid land release and provision of serviced sites (‘site-and-service’). Civil society and academics have longed called for the release of well-located state-owned land for human settlements development, however many departments and state entities have resisted, citing factors including relocation costs and legal restrictions as barriers.

The Department of Public Works and Infrastructure (DPWI) has responded in the 2021/22 financial year, by releasing 3 089 hectares of land (61 parcels) for human settlement development purposes, the vast majority to the Housing Development Agency (HDA). For 2022/23, a projected 7 100 hectares in various provinces are targeted for release for human settlements development purposes. While these actions should be commended, the spatial location of these parcels is not clear, and the Department of Human Settlements has not provided policy clarity or detail on the spatiality of the site-and-service programme. Will infill development occur on smaller pieces of state-owned land and land purchased from private owners, or will site-and-service plots be provided at mass scale on greenfield land on the urban periphery, as has been the dominant mode of public housing provision to date? Clearly, the latter will not lead to spatial transformation or viable human settlements.

Due to the acknowledged scarcity of state-owned land, and to promote spatial transformation, the major focus must overwhelmingly be on in-situ informal settlement upgrading, as informal settlements are often situated in well-located areas in terms of access to employment and public services. Re-location to greenfield serviced sites should only be followed for category B2 and C settlements, where in-situ upgrading is not possible. To enable self-build, municipalities need to either acquire land rapidly, or provide services on land in advance of land acquisition and deal with deferred compensation for landowners, as standard land acquisition processes are time-consuming and delay upgrading.

It should be highlighted that unauthorised land occupations are a symptom not only of the inability of state- and private-led housing development to meet housing demand as well as the slow pace of land release, upgrading and development processes, but also of a failure to holistically recognise that housing (in)security, exacerbated by the Covid-19 pandemic and current economic environment, lies on a continuum, including homelessness and ‘houselessness’, informal settlements and backyard housing, and that this should be addressed as part of a holistic, proactive and integrated human settlements response.

Many informal settlements are located on well-located private land, and municipalities argue that the Municipal Finance Management Act (MFMA) and the Municipal Systems Act (MSA) prevent them from providing services to informal settlement residents living on private land. A legal opinion obtained for eThekwini Municipality in 2018 confirmed the municipal rights and obligations to fund basic services provision for informal settlements on private land in advance of land acquisition, subject to a prescribed process being followed [1]. Recent legal opinion, in the context of backyard housing, has reached a similar conclusion that nothing in the framework of the MFMA or MSA prohibits municipal investment in infrastructure on private land, and that municipalities have both the power and obligation to provide to provide basic services to those living on private land.

Informal settlement upgrading is often delayed by, among others, land acquisition or transfer processes, so the Expropriation Bill now provides a framework for how just and equitable compensation can be decided upon, if expropriation is deemed necessary, and opens the possibility for expropriation without compensation to be considered, for example for human settlement purposes, when informal settlements are located on abandoned land, state land or land held for speculative purposes. This may partly assist in accelerating upgrading processes; however, a number of other issues, including the lack of meaningful co-production and support for incrementalism and self-build top-structure consolidation, must also be addressed, with the involvement of communities, civil society, the private sector and other stakeholders, so that much needed progress in progressively realising the constitutional right to safe and dignified housing for all can be made.

[1] Foreword to Senior Counsel Opinions Regarding the Provision of State-funded Services on Private Land in eThekwini Municipality. 13th August 2022. eThekwini Municipality.