Various entities have called on Parliament to provide a better definition of property when it comes to the expropriation without compensation proposals – especially whether it covers intellectual property – when the Expropriation Bill returns to Parliament in February.
As it stands, the bill includes intellectual property as part of a vague description of property, which could mean anything from patents, trademarks and copyright to art.
The Expropriation Bill seeks, among other things, to provide for the expropriation of property for a public purpose or in the public interest. Also, to regulate the procedure for such expropriation of property, including payment of compensation, identifying certain instances where the provision of no compensation may be just and equitable for expropriation in the public interest, and to repeal the Expropriation Act of 1975.
The executive director of Freedom of Religion South Africa (Forsa), Michael Swain, said they shared the concerns of many other constituencies that the bill, as it stands, covers any form of property which included intellectual property.
“It is no good having a law which is very broad, and describing it as any form of property means that the impact will be so much wider.”
In its submissions to Parliament, Forsa said they were concerned that, since the bill intended to deal with the expropriation of immovable property (specifically land) and appropriate affected land-related property rights and not movable and intellectual property, the definition of property must be corrected.
The organisation said vague terms prevent legal certainty and are open to abuse.
“The definition of property is wide, which may include intellectual property. The broad definition would need another level of consideration and deliberation to ensure that fundamental constitutional rights are protected because the Constitution knows no hierarchy of rights,” Forsa said.
The Banking Association of South Africa (Basa), in its submissions to Parliament, said the definition of property that can be expropriated should be restricted to tangible property.
“Intellectual property must be protected,” said Basa, adding that vague property, public interest and public purpose definitions created policy uncertainty.
The Minerals Council South Africa said it was concerned at what it described as a grey area that needed to be clarified, namely the lack of protection of unregistered rights, especially as the process to register these under the Mineral and Petroleum Resources Development Act could take years.
Parliament media officer Malentsoe Magwagwa said the select committee on transport, public service and administration, public works and infrastructure had resolved to finalise the Expropriation Bill in February 2024 to allow for further consultation.
The committee could not proceed with the Expropriation Bill at its meeting last week, as the Department of Public Works and Infrastructure requested further consultations on clause 20, which deals with matters around urgent expropriation.
“The committee resolved to finalise the bill in February 2024 to allow for the integrated bill to be sent to the provinces for the conferral of final mandates,” Magwagwa said.
The committee chairperson, ANC MP Mosimanegare Mmoiemang, said the issue of the definition of property was expected to be discussed next year and the committee was still busy with the negotiating mandate of the bill after various provinces had made their input.
“This is not a final mandate from provinces and we are considering the different input from them in relation to the definitions.
“The guiding tool is Section 25 of the Constitution, but intellectual property is part of real rights and these discussions are ongoing,” Mmoiemang said.
He said issues of intellectual property fall under the “copyright regime”, the Department of Trade and Industry, and he said the topic would be further ventilated when that department discussed the bill.
“Mining rights will come under the Department of Minerals and Energy and property in the form of land will fall under the Department of Public Works.”
DA committee member Willie Aucamp said the broad description of property was problematic “with a car, house and land being lumped together”.
“It needs to be ironed down to specifics, but some want everything to be state-controlled.
“We are calling for an open society where the government has less of a say,” Aucamp said.
The Mercury