Adv Johan Kruger, Director in the FW De Klerk Centre for Constitutional Rights, writes;
Early this year, the Department of Public Works (DPW) published the latest version of the draft Expropriation Bill for public comment. The draft Bill is to a certain extent an improvement on its controversial 2008-version. For one, the Bill at least no longer seeks to circumvent the requirement that compensation for expropriated property must, if no agreement can be reached between the parties, be decided or approved by a court. According to the Bill’s Explanatory Memorandum, its purpose is to “align the Expropriation Act with the Constitution and to provide a common framework to guide the processes and procedures for expropriation of property by organs of state”. In principle, this objective is noble. However, the new Bill is arguably so loosely formulated that its enactment might result de facto in a severe erosion of property rights as protected in terms of section 25 of the Constitution.
The question of property rights was one of the most closely contested issues during the constitutional negotiations. The result of these negotiations is today reflected in the provisions of section 25 of the Constitution. The latter was carefully formulated to take into account the core right to own property on the one hand, and the need for the State to be able to expropriate property for a public purpose or in the public interest on the other. Section 25 also carefully includes the provision that any expropriation process must be “just