The Bill was meant to replace legislation dating from 1975, which gave the president, certain ministers, premiers and mayors the right to expropriate land.
“It’s unconstitutional in [a] numbers of ways,” said Deputy Public Works Minister Jeremy Cronin.
“Our Constitution describes expropriation as being appropriate for public purposes; the building of a dam, you know building a road, whatever … It defines public interest including, among other things, for purposes of land reform and restitution, so public interest is obviously not in the old 1975 act.”
The draft Bill created a uniform expropriation process to be used by all organs of state. “Above all, what the property clause in the Bill of Rights says is that there needs to be a law of general application for expropriation,” Cronin said.
“Currently, the president, … about eight or nine national ministers, all premiers and all mayors have expropriating rights. But what’s lacking is a clear description of an administrative process that would need to be observed.”
A fair and just process
Up to now expropriating authorities had been unwilling to expropriate as a result of uncertainty over what constituted a fair and just process.
“Under section 25 of the Bill of Rights, compensation should be just and equitable, but what should be taken into account among other things … is the current use of the property, the history of the acquisition … and the market value of the property,” Cronin said.
“There’s a range of criteria that would need to be taken into account by the offer that an expropriating authority makes to an intended expropriatee and the courts would also have to consider those considerations.”
The current version of the Bill recognised the jurisdiction of the courts in determining the compensation due for expropriated property. “If the expropriatee is unhappy with the final offer … they have the right to go to court, but at risk,” Cronin said. “The court might find they’re entitled to less.”
Earlier Bill Shelved
Government tried to get an earlier version of the Bill passed in 2008, but shelved it after its constitutionality was questioned. “My personal view was that it [the old Bill] was going to be unconstitutional, because they tried to get around the issue of the right to go to court on compensation,” Cronin said.
Cronin said the Bill was likely to be tabled in Parliament before year end.
The Bill’s approval followed months of talks at the National Economic Development and Labour Council (Nedlac), where all sectors, including organised agriculture, were present.
“All of those parties, certainly at Nedlac, were reassured that our intention is to be meticulously constitutional, to be very careful about ensuring that any expropriation has clear guidelines in terms of an administratively just process,” said Cronin.