Ricochet News

Expropriation of land without compensation

By Bardine Hall (BA LLB) - Jun 28, 2018
Expropriation of land without compensation

The National Assembly and National Council of Provinces has mandated the Constitutional Review Committee to review section 25 of the Constitution and other sections where necessary, to make it possible for the state to expropriate land in the public interest without compensation. The committee is required to propose the necessary constitutional amendments. 

Members of the public are invited to submit comments on the proposed review by Friday 15 June 2018.

The Constitutional Review Committee will also hold public hearings from 26 Junie 2018 to 6 Augustus 2018 in all provinces across the country.

Section 25 of the Constitution sets out the requirements that must be met when the government expropriates private property rights. Section 25 gives the government the power to expropriate property, but only when it is for a public purpose (like building a road) or in the public interest (which in terms of section 25(4) includes land reform). This must be done in terms of a law of general application (such as the Expropriation Act of 1975) and against payment of just and equitable compensation.

Parliament appointed a panel of experts to assess the current legislative framework. The High Level Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change reported as follows:

  • Experts advise that the need to pay compensation has not been the most serious constraint on land reform in South Africa to date – other constraints, including increasing evidence of corruption by officials, the diversion of the land reform budget to elites, lack of political will, and lack of training and capacity, have proved more serious stumbling blocks to land reform.
  • The Panel is of the view that government has not used the powers it already has to expropriate land for land reform purposes effectively, nor used the provisions in the Constitution that allow compensation to be below market value in particular circumstances.
  • Rather than recommend that the Constitution be changed, the Panel recommends that government should use its expropriation powers more boldly, in ways that test the meaning of the compensation provisions in Section 25 (3), particularly in relation to land that is unutilised or underutilised. The lack of well-situated land for urban settlement remains a stark legacy of apartheid planning and discrimination.
  • Well-situated state-owned land needs to be made available for housing for the poor, and well-situated privately owned land targeted for expropriation.
  • In its recommendations, the Panel has proposed amendments to existing laws to ensure that these rights are effectively promoted, enforced and upheld.

(Extract from the Executive Summary -https://www.parliament.gov.za/high-level-panel)

Contact us if you require advice on your property related matters. At Goldberg & de Villiers Inc, our Property Law Department, namely Adri Ludorf, Tracey Watson-Gill and Bardine Hall will gladly assist you with any of your Property Law related needs.