The Free Market Foundation is concerned about the Expropriation Bill, 2019, in the following respects:
Three of the Bill’s definitions – expropriating authority, public interest, and public purpose – are too vague and would entail absurd consequences, and thus fall foul of the Rule of Law imperative.
The Bill bizarrely gives executive government entities the right to refuse expropriation. This is contrary to the nature of expropriation, which is involuntary. Section 9(1) of the Constitution, which guarantees equal application of the law, would be undermined if different rules apply to ordinary South Africans than those that apply to government entities and officials. Expropriation should either be voluntary for everyone, or involuntary for everyone.
The provisions that provide for “partial expropriations” allow the Minister, if they are “satisfied” that the property is no longer viable after a portion thereof has been expropriated, to expropriate the remainder of the property. This is problematic because only the user or owner of the property is qualified to decide whether they still have use for the property in such circumstances. Giving the Minister such an unconstrained discretionary power is inappropriate to a Rule of Law-respecting society.
The controversial provisions that apply to expropriation without compensation should be changed to remove the ill-considered references to labour tenants and land speculation. Providing nil compensation for abandoned land and State-owned land is, however, a worthy feature of the law.
Finally, the Bill was not accompanied by a legally-mandated socio-economic impact assessment. For this reason alone, the Bill must be withdrawn and subjected to deep and intellectually-honest study.
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