The Expropriation Bill, is it fair or unconstitutional?

By Staff Writer
In a statement on Tuesday, Public Works Minister Thulas Nxesi is reported to have said that the government will never agree to land expropriation without compensation, as this would be promoting “anarchy.”
 
Nxesi added: “As a government who has order we can’t promote anarchy. Expropriation without compensation is unconstitutional.”
 
According the Deputy Minister for Public Works Jeremy Cronin, said: “Compensation in terms of the Expropriation Act of 1975 is determined primarily on the basis of the market value of the expropriated value.
 
“The Constitution, however, requires that just and equitable compensation be paid and that such compensation be determined by having regard to all relevant circumstances, without placing undue weight to any single or particular factor.”
 
If a landowner is unhappy with the compensation offered to them, they will be able to take the matter to court.
 
According to a summary of the Expropriation Bill released by the Department of Public Works, the Bill “seeks to provide certainty for all affected parties, by prescribing uniform procedures to be followed by all expropriating authorities when exercising their powers.”
 
Opposition to the Expropriation Bill
 
However, according to an article released by the South African Institute of Race Relations (IRR), the Expropriation Bill is unconstitutional.
 
In the article Dr Anthea Jeffery, head of policy research at IRR, stated: “Crucially, the Bill still seeks to allow any ‘expropriating authority’ to take property by serving a notice of expropriation on the owner. Ownership of the property in question will then pass automatically to the State on the ‘date of expropriation’ identified in the notice, which could be the day after the notice of expropriation was served.
 
“Like its predecessors, the Bill empowers the State to take property upfront, by notice of expropriation to the owner, and leaves it to those affected to seek redress in the courts thereafter – if they can afford this.”
 
According to Jeffery, “Under the common law, the State cannot simply seize property…without first obtaining a court order in the form of a search-and-seizure warrant.
 
“This common law protection for property rights has since been buttressed by the 1996 Constitution, which lays down a number of requirements for a valid expropriation. The Constitution also prevents people from being evicted from their homes without express judicial authority and, in many instances, the provision of suitable alternative accommodation.
 
Jeffery believes that the new Expropriation Bill “ignores both the common law and the Constitution” in the way in which it will handle expropriation and compensation. She added that rather than redrafting a new Expropriation Bill, the existing Expropriation Act of 1975 could have been adjusted, through amendments, to better align it with the Constitution.
 
To read Jeffery’s full article, click here.

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