South Africa's Expropriation Law: What It's All About

Elmien du Plessis, associate professor of law at North-West University, outlines the long road that has been travelled to get to South Africa’s Expropriation Bill in its current form.

- Elmien du Plessis

When South Africa officially became a constitutional democracy on 4 February 1997, it heralded profound change in the way the country was governed. Once a racially oppressive pariah state, it became a state based on freedom, human rights and the rule of law.

All laws not in keeping with the new Constitution had to be changed to give effect to the rights enshrined in the new Constitution.

One such law is the Expropriation Act, which governs how government can acquire land owned by private citizens for public purposes, such as building roads and railways. The Constitution changed the compensation standard from requiring government to pay “market value” for such land to “just and equitable” compensation.

The requirement that expropriation be in the public interest, which includes a commitment to land reform and other reforms, was included. The requirement that fair procedure be followed in the expropriation of land was included in Section 33 of the Bill of Rights.

While the Constitution provides a framework in which expropriation may occur, it does not provide the details of how this may occur. This is the role of legislation. Such legislation is necessary to bring the process in line with the Constitution.

LONG, ARDUOUS PROCESS

The first attempt at an Expropriation Bill was 12 years ago, in 2008, but it was shelved because of the concern that it obscured the role of the courts in expropriation, and would therefore be declared unconstitutional.