State would need to prove public use, interest in expropriation

(Image: GCIS)

The Expropriation Bill, which intends to overhaul the 1975 Expropriation Act, was approved by the Cabinet last month for public comment and is expected to go before the National Economic Development and Labour Council (Nedlac) as early as next month.

Briefing media in Parliament today, Cronin said while the bill may not have crafted a narrow definition of property, land and buildings would form the central focus of property - rather than savings, shares, intellectual property or vehicles, for example.

However, he stressed that even if any assets such as shares of savings were up for expropriation, that this would still have to pass the test of being in the public interest or public purpose.

Public interest added

Any property owners - even unregistered property holders with effective property rights (for example, those found in traditional areas) and other interested parties would have to be consulted before the state issued any notice of expropriation.

Cronin added that under the new bill, the Minister of Public Works also had the power to withdraw the expropriation if the expropriated property was not put to public use or utilised in the interest of the public.

Public interest has been added as a second category under which property can be expropriated by the state, for such purposes as land reform.

Cronin, however, said the bill had not been introduced to step up land reform and restitution, but said he believed a considerable amount of expropriation would be conducted as part of land restitution.

In expropriating property, the property's market price would form only one of the five criteria that can be considered for expropriation - with others such as the land's history also taken into consideration.

He said the core reason for the withdrawal of a similar expropriation bill in 2008 was that it hadn't allowed for court challenges to any expropriation, which went in the face of the Bill of Rights.

Government can be challenged in court

However he affirmed that under the new bill, parties involved in expropriation could challenge the government either if justice has not been administered fairly enough or if the amount offered in compensation has not been fair enough.

Provincial government, municipalities and national government departments all presently have powers to expropriate property and Cronin said any entities, which didn't have sufficient capacity to investigate expropriation claims effectively, would have to ensure that they build such capacity.

"So it's placing considerable responsibility on the State in all its spheres to get all its ducks in a row," he said.

Andre Meiring, a director of the department's policy unit, said most authorities had the capacity to conduct expropriations, but simply needed to standardise processes.

Meiring therefore believed that the bill would not add significant costs to the state when carrying out expropriations.

Jessica Moodley, director of the department's legal services, said in instances where parties opted to challenge the compensation amount listed in an expropriation order, the bill allowed for 80% of the listed compensation to be paid out by the expropriation date of the property.