Expropriation without compensation (EWC) is perhaps one of the most controversial topics in South Africa at present. With an amendment of section 25 of the Constitution, 1996 looming, property owners in South Africa are becoming increasingly anxious.
I suggest that the majority of the anxiety about EWC is the direct result of a lack of public information; thereby, leaving the matter open for interpretation and assumption. The most logical assumption to be made of course is that South Africa is on its way to becoming the ‘next Zimbabwe’.
Without promoting the concept of EWC, the purpose of this article is to give a bit more insight into the application of EWC. Section 25 of the Constitution already makes provisions for expropriation where it is in the public interest, and subject to compensation being paid. The compensation payable must be agreed between the parties, or must be decided by the Court.
The draft Constitution’s 18th amendment Bill proposes that under certain circumstances, the Court will be authorised to order that the amount of compensation is ‘nil’.
Two provisions in the same section safeguards against potential abuse in “that the amount of compensation and the time and manner of payment must be just and equitable, reflecting and equitably balance between the public interest and the interest of those affected, having regard to all relevant circumstances”; and “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”.
Any notion that someone is going to arrive at your gate and just ‘take’ your property is exaggerated and erroneous. Not all land and property is eligible for expropriation.
The 2019 Expropriation Bill, read with the proposed 18th amendment, confirms the legislator’s commitment to prevent arbitrary deprivation of land and property.
Furthermore, there are specific directions as to the process that must be followed by the expropriation authority, which includes proper notice, an opportunity to object, negotiations, mediation and approaching the Court for relief. Given the Court’s protective behaviour over consumers, it is unlikely that the Court will grant an order for EWC lightly. None of the proposed changes have been committed to legislation yet. We will provide you with further updates in the future.
Article by Coenie Bezuidenhout, candidate attorney, Lagarto Incorporated. Contact them on 011 568 9326 for more information.
