Expropriation Bill

Expropriation Bill unconstitutional in the absence of a constitutional amendment

By | constitutional law, Expropriation Bill

Reprinted from BizCommunity, by Gary Moore – 2022-02-24

The 1975 Expropriation Act authorises the Minister of Public Works to expropriate property for public purposes, and provides for the payment of compensation to the dispossessed owner, not exceeding the property’s market price, determined either by agreement between government and the owner, or by a court.

The Constitution says property may be expropriated in terms of “law of general application” for a public purpose, or in the public interest (including for land reform), and subject to compensation in an amount either agreed by those affected or decided by a court.

The amount of compensation, says the Constitution, 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 certain listed ones.

In 2020, the Minister tabled an Expropriation Bill intended to replace the 1975 Act with one which replicates the 1975 statute by and large, but which includes clauses that take into account provisions of the Constitution.

The 2020 Bill repeats in broadly similar terms the 1975 Act’s provisions which say that, if the Minister is considering expropriating property, she may authorise an inspector to enter a particular property to ascertain if it is suitable and to determine its value.

But while the 1975 Act says, if the occupier doesn’t consent to the inspector’s entering any building on the land, the inspector can nevertheless do so on 24 hours’ notice, the Bill in contrast says (in deference to the fundamental rights to dignity and privacy), if the occupier doesn’t consent to the entry and inspection, the government must get a court order authorising access.

Like the 1975 Act, the Bill (with minor adjustments) says that, in determining the amount of compensation to be paid, account must not be taken of the fact that the property has been taken without consent, or of any enhancement or depreciation in its value which is attributable to the purpose for which it was expropriated.

The Bill then repeats the Constitution’s property clause wording, that the amount of compensation 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.

But the 2020 Bill then takes a step too far and ceases to be “law of general application” envisaged in the Constitution. The Bill contains a clause which seeks to stipulate when it may be just and equitable for “nil” compensation to be “paid”. The word nil is the contracted form of the Latin word nihil, which means “nothing”.

The clause states that it may be just and equitable for nil compensation to be “paid”, “where land is expropriated in the public interest”.

The Bill’s clause then lists precise circumstances which it deems to be relevant, and to which it requires that regard be had in determining when it may be just and equitable for nil compensation to be “paid” where land is expropriated in the public interest.

These listed circumstances are (slightly abbreviated):
* where the land is not being used and the owner’s main purpose is not to develop it or use it to generate income, but to benefit from appreciation of its market value;
* where an organ of state holds land that it acquired for no consideration and is not using for its core functions and is not reasonably likely to require for those functions;
* where the owner has abandoned the land by failing to exercise control over it;
* where the land’s market value is equalled or exceeded by the present value of direct state investment or subsidy in the acquisition and capital improvement of the land; and
* when the nature or condition of the property poses a health, safety or physical risk to persons or other property.

But it is not for this clause of the 2020 Expropriation Bill or for any Act of Parliament to specify circumstances when it may be just and equitable for nil compensation to be “paid”.

It is not for the legislature to lay down how the courts should interpret the Constitution’s property clause in particular cases, and the Constitution does not envisage that the legislature may do so.

This clause in the Expropriation Bill infringes the separation of powers which is implicit in the Constitution.

The separation of powers does not imply rigidly demarcated functional roles between the judicial and legislative branches. But, says the Constitutional Court, there is need for caution on the part of each such branch of government against intruding into the constitutionally-assigned operational space of the other one.

The Constitution envisages that the superior courts decide constitutional matters. Whether an amount of compensation offered for an expropriation is a just and equitable amount is just such a constitutional matter.

It is not in the compass of the legislature to encroach on the domain of the courts by prescribing circumstances when nil compensation would be just and equitable, unless an amendment of the Constitution is adopted which alters the property clause in the Constitution to allow for such legislation.

Indeed, there was a very recent attempt to bring about just such an amendment to the property clause in the Constitution, but the attempt failed. A Constitution Amendment Bill of 2021 sought to amend the property clause so as to provide that where land and its improvements are expropriated for land-reform purposes the amount of compensation may be nil, and that legislation must set out circumstances where the amount of compensation is nil. That Constitution Amendment Bill failed to achieve the required affirmative vote of two thirds of the members of the National Assembly and has accordingly lapsed.

In the circumstances, the 2020 Expropriation Bill’s clause that seeks to stipulate when it may be just and equitable for nil compensation to be paid is unconstitutional and invalid, and the National Assembly’s Portfolio Committee on Public Works should accordingly remove the clause from the Bill.

SD Law can help

If you have concerns about the Expropriation Bill 2020 or your property and want to talk to an expert, contact Simon on 087 550 2740 or email

Simon Dippenaar & Associates Inc. is a law firm in Cape Town and Gauteng with eviction lawyers and attorneys specialising in eviction law.

Further reading:

David Mabuza’s assurance was misleading

By | COVID 19, Eviction news, Eviction notice, Eviction orders, Expropriation Bill, Farm evictions

Four months after the Deputy President, David Mabuza, assured South Africans that no farmer will be evicted from their farms under the government’s land redistribution programme, Department of Agriculture, Land Reform and Rural Development (DALRRD) officials have been going around giving farmers one-week notices to vacate their farms.

On 22 October 2020, while answering questions in the National Assembly on the government’s planned 700 000 hectare land redistribution programme, Mabuza unambiguously stated that “…those people that are currently occupying those farms (identified for redistribution), I don’t think there is any intention to forcefully remove people at this point in time”.

Mabuza’s assurance was obviously misleading because Mr Ivan Cloete, a successful pig farmer at Colenso farm in the Western Cape was recently served with a 7-day notice to vacate his farm by officials from the DALRRD’s Western Cape provincial offices. The claim by these officials that Mr Cloete does not qualify to continue practising his farming activities at Colenso farm is nothing but naked abuse of power designed to intimidate him into giving up his livelihood. The DA will not stand by and allow the use of dubious eviction orders to harass and victimise a defenceless farmer.

The unfair treatment of Mr Cloete appears to confirm well-founded fears among farmers that 700 000 hectare scheme was now being used as a cover by DALRRD officials to intimidate them into vacating their farms. What makes this state-sanctioned intimidation worse is that the farms of some of the farmers facing this intimidation do not form part of the 700 000 hectare program.

The DA has always been on record arguing that the chaotic approach to land reform will open up avenues for corrupt abuse of the process and disrupt the agricultural sector:

On 10 March 2020, I warned members of the Portfolio Committee that, even without data or information on the monitoring and evaluation of land reform, Departmental officials had been issuing eviction notices haphazardly.

During a committee session on 01 December 2020, I told committee members that farmers in the Western Cape, Gauteng and Mpumalanga who have been on the land for years, had received letters to vacate in the past year.

It is ominous that while the controversial section 25 amendment is being debated in Parliament, farmers are already facing unrelenting pressure to vacate their farms from a Department that has gone rogue. Mabuza and his colleagues in government have an obligation to stop this reckless targeting of farmers before it inflicts irreparable damage to the agricultural sector and the economy.

Reprinted from Politics Web by Annette Steyn

Simon Dippenaar & Associates, Inc. is a Cape Town law firm of specialist eviction lawyers, now operating in Johannesburg and Durban, helping both landlords and tenants with the eviction process. Contact one of our attorneys on 086 099 5146 or if you need advice on the eviction process or if you are facing unlawful eviction.

Further reading:

Expropriation Bill South Africa

Expropriation Bill 2015 – Compensation, The Vexed Question

By | Expropriation Bill

Last week we looked at the Expropriation Bill 2015 and what it means for property owners. In the second part of this article we deal with an aspect beset by controversy – compensation: how much and when.

Expropriation Bill South Africa


How is compensation determined?

What is ‘just and equitable’? How and when will compensation be paid?

It’s worth noting that one of the better features of the 2015 bill, compared to the 2008 version, is that compensation is decided by the courts, not by the state.

Issues affecting the amount of compensation to be paid are:

  • Current use of the property
  • History
  • Market value
  • The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement to the property
  • Purpose of the acquisition


An expert, unbiased opinion might be useful at this stage – property and its value, apart from being a financial transaction, can arouse strong emotions.

You should be aware of some factors the authority will ignore when determining compensation:

  • The fact that the property has been taken without the consent of the expropriated owner/right-holder
  • Any special suitability or usefulness of the property, if it is unlikely that the property could have been purchased on the open market for that specific stated purpose
  • Any improvements made to the property resulting in illegal use are not included in the valuation
  • Improvements made after the notice of expropriation was served (unless an agreement has been reached prior to expropriation)
  • Anything that was done with the aim of claiming compensation


What to do when you receive notice of expropriation

If you are the owner or holder of an unregistered right, you should respond to the notice of expropriation within a 20-day period (which can be extended), whether or not you agree to the expropriation or the amount of compensation payable.

If you claim an amount of compensation and this is rejected by the authority, the authority has to propose a ‘just and equitable’ amount, detailing how this amount has been calculated and what is included. In this situation, you will need to provide supporting documentation within 20 days of delivery of the statement indicating the amount claimed.

If an agreement is not reached at this stage and you don’t institute legal proceedings, it is assumed that you have accepted the offer. If you are entitled to compensation, 80% must be paid to you on the date the authority takes possession of the property.


Mortgaged property and rates

If there is a mortgage or a deed of sale on your property, the appropriate amounts are paid by the authority to the bond-holder or buyer. If you cannot reach agreement with the bond-holder/buyer, then the matter will be decided in a court application.

Property rates and other charges are paid by the authority from the compensation. (The municipal manager is responsible for ensuring that the information regarding outstanding charges is forwarded to the authority.)

Under certain circumstances, it may be necessary for compensation to be deposited with the Master of the High Court – for example if the property was a bequest to people unknown to the parties involved, or if the address of the payee cannot be provided.


Extenuating circumstances

Your property may be expropriated on a temporary basis – in the event of a disaster, for example. ‘Temporary’ means a period not longer than 12 months (this may be extended by court order) and some of the provisions of the bill are waived. Compensation is payable.

If, for any reason, the property is no longer needed – perhaps the reason for the expropriation is no longer in the public interest – it can be withdrawn, in which case there is provision for recompensing the owner.


The way forward

Does the bill infringe the Constitution on issues such as property rights and the removal of the ‘willing-buyer, willing-seller’ approach? The bill seems to relate not only to land, but to shares, intellectual property and, indeed, moveable property. Are we heading for a Zimbabwe-style land grab or are we protected, at least to an extent, by our Constitution?

As mentioned in the first part of this article, there has been a great deal of discussion around the Expropriation Bill, mostly relating to the constitutionality of the powers given to the minister and state organs to expropriate property either for ‘public purposes’ or ‘in the public interest’.

The debate is likely to continue until the pertinent points have been addressed and clarified, probably in the Constitutional Court, and there are calls from the DA, AgriForum, and the Institute of Race Relations for further discussion.


Help is at hand

Meantime, if you are faced with a possible expropriation, we strongly advise you to read the bill/act and prepare to take legal advice. This is a potential minefield, but with the right approach you could save yourself time, money AND heartache. Contact Simon today on 087 550 2740 or email