Legislating Expropriation without Compensation will not address past injustices
29 September 2022
Expropriation of property for a public purpose is not a new concept in South African law. In fact, the Bill under discussion today, seeks to repeal an existing piece of legislation that deals with expropriation of property, namely the Expropriation Act 63 of 1975. The Expropriation Bill 2020 has been drafted with a view to aligning expropriation by the state with the Constitution.
What is new in our law, is the concept of public interest as a basis for the expropriation of property. Public interest relates to our commitment as a country to bring about redress for past injustices through mechanisms such as land reform.
As we know, Parliament failed to pass an amendment to Section 25 of the Constitution last year which would have entrenched expropriation without compensation in the property clause. In spite of this, the ANC have insisted that the exact clause that they failed to pass be retained in the Expropriation Bill. It is our contention that this a brazen attempt by the governing party to amend the Constitution through the back door using ordinary legislation. It cannot be countenanced that a clause that was deemed so pivotal as to require a constitutional amendment, should now just be adopted in the House by a simple majority.
Section 25(2) of the Constitution stipulates that expropriation must be subject to compensation that has been agreed to or has been decided on by the court. Section 12(3) of the Expropriation Bill before this House clearly contravenes this by providing specific instances where nil compensation is already deemed to be just and equitable – no consensus, no court determination.