Expropriation without compensation – there is no such thing
11 April 2017
Many irresponsible statements regarding expropriation without compensation have been made recently, also by senior politicians. The truth, however, is that our Constitution does not make provision for expropriation without compensation.
Section 25 of the Constitution requires just and equitable compensation to be paid in the event of expropriation. However, deprivation without compensation is permissible. Expropriation is a type of deprivation. The moment that state action is defined as expropriation, compensation becomes payable.
In many countries of the world compensation is also payable for constructive expropriation, i.e. where the state does not acquire the property, but the owner's rights are undermined in such a way that the value of the property is reduced or the owner loses rights in respect thereof. The concept is not a pertinent part of our law, but it is possible that the jurisprudence could be developed in such a manner that certain Deprivation is also regulated by the Constitution. Section 25 of the Constitution prohibits arbitrary deprivation.
Deprivation would be considered arbitrary if it does not pass the test of section 36 of the Constitution – the so-called limitation clause. Section 36 deals, amongst other things, with the concepts of rationality and proportionality. In simple language, it means that there must be a link between the legitimate objectives of legislation and the measures proposed for achieving those objectives. The measures may also not be unrelated to the objectives, and the courts may consider, among other things, whether there might be other less disruptive measures for achieving the same objectives.