South Africa has a brand new legislation to control the expropriation (or obligatory acquisition) of personal property by authorities for public functions or within the public curiosity.
The passing of the Expropriation Act 13 of 2024 adopted a parliamentary course of that started in 2020.
The act repeals the apartheid-era Expropriation Act 63 of 1975, and goals to align expropriation legislation with the structure. It units out the procedures, guidelines and rules for expropriation. Moreover setting out in fairly an in depth trend how expropriations are to happen, the act additionally supplies a top level view concerning how compensation is to be decided.
In South Africa’s colonial and apartheid previous, land distribution was grossly unequal on the premise of race. The nation continues to be struggling the consequences of this. So expropriation of property is a possible instrument to scale back land inequality. This has develop into a matter of accelerating urgency. South Africans have expressed impatience with the gradual tempo of land reform.
Property rights and land reform
There’s a lot debate within the nation concerning the provisions of the brand new act. The controversy is generally concerning the extent to which it impacts current personal property rights. Some argue the act is unconstitutional. Others welcome it as a obligatory step in the suitable course.
I’m a professor of legislation with a eager curiosity on this space of the legislation, and not too long ago edited a e-book on land expropriation in South Africa by main specialists. My view is that an expropriation act that’s aligned with the structure needs to be welcomed, to allow land reform to work successfully.
Learn extra:
Land reform in South Africa: what the actual debate needs to be about
Land reform additionally wants a succesful and proactive state that implements the authorized framework in such a way that prioritises expropriation as a mechanism to make sure land reform.
To this point, expropriation has not been used successfully to redistribute land extra equitably, as a part of land reform.
I’m not satisfied that the act, in its present type, is the silver bullet to impact large-scale land reform – no less than not the kind of radical land reform that South Africa urgently wants.
Understandably, the act could have a extreme impression on property rights. Nevertheless it nonetheless considerably protects landowners affected by expropriation. Solely in very restricted circumstances would they not be compensated.
Protections for land house owners
The act says that property should not be expropriated arbitrarily or for a goal aside from a public goal or within the public curiosity.
Public goal means by or for the advantage of the general public. For instance, expropriating property to construct roads, colleges and hospitals. Public curiosity is broader and contains the nation’s dedication to land reform.
“Arbitrary” would normally imply with out motive or justification.
Learn extra:
South Africa has one other go at an expropriation legislation. What it is all about
The act additional requires that an expropriating authority – an organ of state or individual empowered by the act or every other laws – should first attempt to attain an settlement with the proprietor to amass the property on affordable phrases earlier than contemplating expropriation.
This provides some energy to a landowner, although expropriation doesn’t usually require consent. The act additionally says a particular expropriation should all the time be authorised by a legislation.
No compensation?
Part 12 of the act offers with compensation for expropriation. It’s arguably probably the most controversial a part of the brand new laws. Part 12(1) doesn’t look like problematic and is basically the identical wording as part 25(3) of the structure. This a part of the property clause units out what have to be taken into consideration when compensation for expropriation is decided.
Part 12(3) of the act refers to “nil compensation” – when nil rand (financial) compensation could also be paid. There isn’t a specific reference to nil compensation within the present wording of part 25 of the structure. It’s a brand new factor within the Expropriation Act.
Nevertheless, courts have toyed with the concept that part 25 of the structure already supplies room for a discount in compensation.
The circumstances wherein nil compensation might be granted by way of the brand new act are in truth very restricted. Part 12(3) leaves the discretion to the expropriating authority to find out when it could be simply and equitable to pay nil compensation. Nevertheless, the act lacks pointers on how such a discretion have to be exercised.
Learn extra:
Land is a heated problem in South Africa – the print media are presenting just one aspect of the story
The scope of part 12(3) can also be restricted in some respects. For one, it’s restricted to land. Solely the place land is expropriated would nil compensation be an possibility. Subsequently, not all types of property may be expropriated with out compensation. The notion of property below part 25(1) of the structure is usually vast and contains varied rights and pursuits, that are broader than simply land. As an example, private rights, mineral rights and licences are included below the part 25(1) notion of property.
This vast understanding of property isn’t relevant to part 12(3), which refers to “land” being expropriated.
Part 12(3) can also be restricted to the expropriation of land “in the public interest”. Nil compensation is subsequently envisaged solely within the context of expropriation of land undertaken within the public curiosity, and never additionally for a public goal.
Three of the 4 classes listed in part 12(3), the place nil compensation is envisaged, are linked to the way in which wherein the property was getting used previous to the expropriation. Land utilized in a productive method is subsequently not evidently envisaged below part 12(3).
Nil compensation isn’t essentially restricted to the situations listed. Nonetheless, the quantity of compensation should – in all situations – be simply and equitable.
Novel method
The act forces South Africans to interact with the concept of nil compensation in a way more direct method.
The presence of a clause devoted to nil compensation supplies new readability on when this might apply.
It’s arduous to find out whether or not this act will move constitutional muster with out seeing how expropriation below it’ll work in observe. It stays to be seen whether or not it’ll have the far-reaching penalties that many concern, or name for.
Zsa-Zsa Temmers Boggenpoel doesn’t work for, seek the advice of, personal shares in or obtain funding from any firm or organisation that will profit from this text, and has disclosed no related affiliations past their tutorial appointment.
