The development of a new expropriation framework for South Africa

Abstract

The word expropriation is used in South Africa to describe the process whereby a public authority or institution takes property from a private person for public purposes against payment of compensation. The current Act regulating expropriations in South Africa is known as the Expropriation Act 63 of 1975. However, it has three primary inconsistencies with the Constitution. Firstly it predates the Constitution - therefore, it does not infuse the values of equality, human dignity and the achievement of freedom. Secondly it is not consistent with comparable modem statutes elsewhere in the world. The last issue is that this Act is inconsistent with the Constitution in the sense that the Act only provides for expropriation for public purposes and the Constitution provides for expropriation in the public interest as well as for a public purpose. For these reasons it is crucial to establish a new legislative framework. In an attempt to rectify the above difficulties, an expropriation policy and a draft Bill were introduced. The primary purpose of the Bill is to harmonise the considerable amount of legislation in South Africa on the subject of expropriation, and to fill the gaps of the current Act. However, the new proposed Bill was referred back to cabinet as it had various difficulties. According to newspaper commentators, one of these reasons was that market value would not be used when determining the amount of compensation. This is not true, as market value is one of the listed factors in section 25(3) of the Constitution, and it is provided for in the Bill. Another reason was that the role of the courts will also be restricted in the new Bill. Parties will no longer be able to refer disputes concerning the amount of compensation to court. Once again this is not true, the courts role is only restricted in the sense that it would no be able to determine the amount of compensation as provided for in the Constitution, but will only be allowed to approve or decline the amount the Minister determined. This is one of the aspects that may be debatable constitutionally. After an in-depth study of the proposed Bill, the author came to the conclusion that there are actually only three aspects that might be unconstitutional namely; the definition of public interest which is to be included that widens the capacity to expropriate; departure from the notice procedure; and the fact that the courts may no longer determine the amount of compensation, but only approve or decline. Expropriation is one of the most important tools to speed up land reform in South Africa, and it is, therefore, of the utmost importance that the procedure must take place in a fair, equitable and constitutional manner. The purpose of this study will be to identify the aspects which result in expropriations that is not done on this basis, to scrutinize them and to make recommendations to these aspects.