COMMENTS ON EXPROPRIATION BILL

1
COMMENTS ON EXPROPRIATION BILL

• SUBMITTED ON BEHALF OF
• FORESTRY SOUTH AFRICA

2
PRESENTATION OVERVIEW

• Introduction
• Powers of Investigation
• Notices of Intention to Expropriate
• Compensation
• Claims for Compensation
• Approval of Compensation by a Court
• Conclusions

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INTRODUCTION

• Forestry South Africa accepts the need to create
  a legislative framework for expropriation
  consistent with the Constitution
• FSA contends the Bill is objectionable mainly
  because of
• Failure to provide for expropriation that is
  procedurally fair
• Denial of proper access to the courts
• Bill infringes the rights to privacy and human
  dignity

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SECTION 25 PROPERTY

• (1) No one may be deprived of property except in
  terms of law of general application, and no law
  may permit arbitrary deprivation of property.
• (2) Property may be expropriated only in terms of
  law of general application-
• (a) for a public purpose or in the public
  interest and
• (b) subject to compensation, the amount of which
  and the time and manner of payment of which have
  either been agreed to by those affected or
  decided or approved by a court.
• (3) The amount of the compensation and the time
  and manner of payment must be just and equitable,
  reflecting an equitable balance between the
  public interest and the interests of those
  affected, having regard to all relevant
  circumstances, including
• (a) the current use of the property
• (b) the history of the acquisition and use of the
  property
• (c) the market value of the property
• (d) the extent of direct state investment and
  subsidy in the acquisition and beneficial capital
  improvement of the property and
• (e) the purpose of the expropriation.
• (4) For the purposes of this section
• (a) the public interest includes the nations
  commitment to land reform, and to reforms to
  bring about equitable access to all South
  Africas natural resources and
• (b) property is not limited to land,
• (5) The state must take reasonable legislative
  and other measures within its available
  resources, to foster conditions which enable
  citizens to gain access to land on an equitable
  basis.
• (6)
• (7)
• (8) No provision of this section may impede the
  state from taking legislative and other measures
  to achieve land, water and related reform, in
  order to redress the results of past racial
  discrimination, provided that any departure from
  the provisions of this section is in accordance
  with the provisions of section 36(1).
• (9)

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PUBLIC INTEREST

• Du Plessis defined public interest as follows
• die versamelnaam vir n aantal histories
  uitgekristalliseerde, beskerminingswaardige
  staatveiligheids, ekonomiese, strategiese,
  administratiewe, sosiale en regsbelange wat op n
  gegewe moment subjektief en objektief bepaalbaar
  is en in n gemeenskap die balans tussen die
  botsende belange van individue onderling en
  individue in verhouding tot die staat handhaaf.
• W du Plessis n Regsteoretiese ondersoek na die
  begrip openbare belang 1987 THRHR 290 at 298

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POWERS OF INVESTIGATION

• Clause 10 Investigation and gathering of
  information
• No allowance for owner or holder to influence
  investigation and recommendations by a Board
• Infringement of right to privacy and the right to
  human dignity
• Norm prior issue of a warrant by judicial
  authority

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NOTICES OF INTENTION TO EXPROPRIATE

• Clause 11(1) If (EA) intends . Suggest
  contemplates
• Period of 21 days too short no condonation /
  extension
• Only written objections and submissions
• Consideration of objections and submissions
• Negotiations without prejudice

8
COMPENSATION

• Clause 15 determination of compensation by
  expropriating authority
• Clause 24 approval of compensation by court
• Approach in conflict with section 25(2) of
  Constitution
• More than market value compensation

9
CLAIMS FOR COMPENSATION

• Clause 17(3) Period of 21 days too short
• Clause 18(1) Expropriating authority will face
  same difficulty with 21 day period
• Condonation by administrative officials

10
APPROVAL OF COMPENSATION BY A COURT

• Section 25(2)(b) of the Constitution
• Decided or approved by a court
• Interpret conjunctively as opposed to
  disjunctively
• Bill limits courts to a review of the process
• Access to the courts to determine compensation
• Review model unconstitutional

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CONCLUSIONS

• Bill is unconstitutional in certain respects and
  defective in other respects
• Bill ought to be amended to make provision for
  procedures which recognise and give effect to
  fundamental rights