Property law changes planned for 2022 – here are 3 important issues you should be aware of

The issue of land and property is expected to dominate South African conversation again in 2022 as the ruling African National Congress (ANC) moves forward with its plans for land expropriation without compensation.

The party failed to secure the two-thirds majority necessary to make changes to the Constitution in late 2021, but said it will move forward with its contingency plans – using its simple majority to change the country’s laws to make its ideas around land expropriation a reality.

The ANC argues that changes are needed to address racially skewed land-ownership patterns dating back to colonial and white minority rule. While some legal experts say land seizures are already permissible under the constitution, the party argues that these issues need to be addressed more explicitly.

Most opposition parties have pushed back against the ANC’s proposals, saying they undermine property rights and investor confidence in South Africa. The more populist Economic Freedom Fighters say the ANC’s plans don’t go far enough, however.

Speaking in an address on Saturday (8 January), president Cyril Ramaphosa said the land reform process will promote economic development for the benefit of all. “The ANC will implement its resolution on the expropriation of land without compensation despite the refusal of other parties in Parliament,” he said.

This follows similar comments by justice minister Ronald Lamola in December, who said that the ANC has scrapped plans to change the constitution and will now resort to using regular legislation to facilitate the process.

“Changing the constitution was just one instrument we could have used. The matter is now ended. We will now use our simple majority to pass laws that will allow for expropriation without compensation,” he said.

Land courts 

Parliament is also expected to grapple with the Land Court Bill which will allow for the establishment of a specialist Land Court as well as a Land Court of Appeal.

It is specifically aimed at accelerating the country’s land reform programme as well as resolving backlogs and disputes around land claims.

“The bill seeks to address the systemic hurdles that make it difficult for land claimants to obtain land restitution,” said Justice and Correctional Services minister Ronald Lamola in an explanatory statement.

“For instance, the bill allows for hearsay evidence for most families, who have to rely on oral history and the existence of elders with knowledge of description, location, and extent of land which their descendants previously occupied.”

Lamola said that bill also allows for expert evidence regarding historical and anthropological facts relevant to any particular land claim.

“This bill gives effect to the mandate of the sixth administration, namely, to ensure our approach to land reform is based on three elements – increased security of tenure, land restitution and land redistribution.

“This bill is a concrete intervention to improve the functioning of all three elements of land reform.

“It creates a policy framework to ensure that land reform is guided by sound legal and economic principles and contributes to the country’s investment objectives and job creation initiatives,” he said.

Additional protections and transformation 

Parliament is also expected to consider the Housing Consumer Protection Bill in 2022 after it was tabled by the Department of Human settlements, Water and Sanitation in May 2021.

The bill seeks to ensure adequate protection of housing consumers and effective regulation of the home building industry by:

• Strengthening regulatory mechanisms;
• Expanding protection to housing consumers;
• Introducing effective enforcement tools and prescribing appropriate penalties/sanctions to deter non-compliance by home builders.

The bill also aims to create an enabling environment for new entrants into the home building industry through the introduction of contractual provisions to ensure their sustainability in the market.

The ‘economic transformation’ of the industry is also addressed in the bill through the introduction of provisions such as a warranty fund surplus which can be utilised towards human settlements’ developmental programmes.

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