JUDGING by the holes in Jo’burg’s roads, the debate about whether the Gautrain should be built is well and truly over. Indeed, the project is already giving value for money by keeping a spotlight on the kind of new society that we are building. The expropriation of 15 families in the Johannesburg suburb of Marlboro to make way for the self-proclaimed “middle-class express” is a case in point. When those affected objected, they were portrayed as a group of grasping chancers, obstructing social progress. They should take what was offered, was the message, and, if they co-operated, they might even get a few months’ rental while they found a new place to live.

The use of expropriation by the state for public purposes is well established. Although there are mutterings about the constitutionality of SA’s current provisions, there are good reasons to keep them. But digging into the legal background, the crucial question is what the powers of what US law delightfully calls “eminent domain” are actually used for.

This is a hot topic in property law. The debate was sparked by the attempts of the small municipality of New London, in Connecticut, to expropriate 15 houses and evict their occupants to make way for a waterfront development on their very own Thames River. The old folks were happy with their little community and did not want to move, certainly not on the conditions that they were offered. The municipality revved up its lawyers and sought to expropriate them, using “eminent domain”.

But this venture went just too far and aroused vigorous opposition, leading to campaigns to limit the power of the US state to take other people’s property. While the Supreme Court felt that it was fair for a city to chuck residents out in order to promote a profitable private development, the broader public does not agree. Now laws are being passed in states across the US to curb the ability of cities to expropriate.

It would be unfortunate if eminent domain (or, in SA, the state’s right to expropriate) were curbed too drastically. When it comes to putting in electricity or telecoms cables, gas or water pipelines, and even roads, the success of the collective urban enterprise depends on not allowing a few holdouts to block the course of collective progress. Expropriation on behalf of the poor could also help to bring about social peace, in both rural and urban areas. But it is a different matter when the proposed development is for private profit, and will benefit just a small (inevitably affluent) minority. Which brings us, fairly obviously, to the Gautrain.

The lack of sensitivity to the plight of the residents of Marlboro was shocking. They were offered low prices because their location, next to Alexandra township, is not the greatest. But unlike the residents of nearby, formerly white suburbs of Bramley and Kelvin, they did not overcapitalise there because they wanted to. They were driven to Marlboro by the Group Areas Act. So why should they now make way? If this was a project for the benefit of the greater public, one would sigh, suggest more equitable compensation (taking into account past discrimination) and get on with it. But is this a project in the public interest? Will it not simply serve an elite minority, bypassing the needs of the majority of the community while
generating large profits for a few lucky shareholders?

Fortunately, having highlighted the issue in Marlboro, the Gautrain is now giving us an opportunity to test its true nature, scientifically. The reason the Gautrain runs from the airport to Sandton via Marlboro (rather than linking, and unblocking, the choked urban nodes along the choked R21/N3 corridors) is that it crosses a large tract of unoccupied land, the buffer zone for AECI’s old dynamite factory, where construction will be cheap and easy. Since AECI no longer needs the buffer — their processes are apparently now safer — that land is available for development and the clever Gautrain promoters got in quickly.

Given that the boring old explosives business is increasingly competitive, AECI was rather upset with this proposal because it intended to take substantial profits from this undeveloped island in the middle of Gauteng’s fastest-growing area. So they held out against the expropriation on grounds that it would reduce their land values by cutting it up into smaller, less accessible islands.

Hence the deal now on the table. AECI will support Gautrain if they get bridges over the railway and, crucially, a station in the middle of their development. That is actually a sensible compromise. The key question, though, is still: who will benefit? That, in turn depends on who makes certain critical decisions about the zoning of the new residential land.

There has been some controversy about whether it was appropriate for cabinet members who have interests in construction companies related to the Gautrain project to take decisions about its future. And it has been suggested by some African National Congress members, including President Thabo Mbeki, that the critics were racially motivated.

The issue is more complex. One is reminded of the much-derided practice of ruling parties in countries such as China and Mozambique, which sought to ensure that their leaderships contained a good mix of workers, peasants and soldiers.

We would presumably not want to adopt such an old-fashioned approach. But could there be a new kind of development in AECI-land, if the national and Gauteng cabinets, and Ekurhuleni’s exco, contained more active members of the walking masses? The controversy is not so much one of race, but one of class.

So the proposed test is simple. Will the new AECI-land development, which depends on political town-planning decisions, include space for the low-income families who really need public transport, or will it be kept for the rich people who would actually prefer to stay in their cars ?

If at least half of AECI-land is zoned for low-income housing, located close to the new AECI-land station, the Gautrain will have staked a claim to be a project that can benefit a mass population, for which expropriations are fully justified. If the land is reserved only for the rich folk who can currently afford it, the Gautrain will once more have demonstrated that it
is not a public project but a minority entertainment, which should get no special privileges.

It is now over to Ekurhuleni mayor Duma Nkosi to make the first move. He can certainly claim to come from the working (if not, now, the walking) classes. But given the scale of commercial interests at play, watch with interest, but don’t hold your breath.

Muller is a visiting research fellow at the Wits University School of Public and Development Management.