SAR 310: EXPROPRIATION BILL LECTURE NOTES

- The Expropriation Bill encompasses 9 chapters. This Bill is far more expanded in form than the Expropriation
Act

URGENT EXPROPRIATIONS

- Currently covered in clause 22 of the Bill.

- The current regulatory framework is regulated by section 2(1) of the Act. It empowers the Minister of Power
Works to expropriate any right to use land for any public purposes
- Section 25(4)b: defines public purposes
- Unfortunately, the urgent expropriations have not been used in democratic South Africa. In fact, to date only
6 instances have taken place. One can easily see that the temporary use of land could be required or justified
in the event that the state requires property quickly.
- This is considered a legitimated use of power
- The regulations of urgent expropriations are more regulated in the Bill than in the Act.
- It is now conscribed in the Bill as to what is meant by “temporary expropriations”

- Qualifies the power of the state in urgent expropriations

1. State must ensure that there is no other state property available before expropriating private land
2. There are four circumstances that the State
o If the situation meets the requirements of a Disaster in the Disaster Management Act
o Where there is a real or imminent threat to life (War)
o If there is substantial injury or damage to property
o In other circumstances, through a court order
- Sections 5.6 and 7 of the Bill = the state is exempt from investigations which would strain the state at a time
where it needs to be focusing on other urgent matters (the expropriation)
- Holders of unregistered rights could be entitled to compensation if the land over which they have an
unregistered right is expropriated.
- The time period for an urgent expropriation is capped at 12-months.
- If the state during this initial 12-month period damaged the property, they have an obligation to repair that
damage. If they do not want to repair the damage then they can compensate the owner for damages.
- If the initial 12-month period is not sufficient, the state can ask the owner to extend the period. If the owner
refuses the state can approach the courts to grant an order for the extension of the usage of the land.
- Said order extends the usage for no longer than 18 months (an additional 6 moths)
 - Even though a disaster is set out in the Disaster Management Act, it is sometimes hard for many individuals
to grasp what constitutes a ‘disaster”
- A war/civil unrest could also fit into a State of a Disaster
- It is important that the disaster must be so grave that individuals could not possibly be able to deal with it on
their own

CALCULATION OF COMPENSATION (clause 12.2)

- This is a very controversial part of the conversation

- Bill still makes verbatim mention of section 25. This is disappointing in that what is the use of the Bill if it
doesn’t in fact improve the law?
- There are range of techniques to quantify market value and an expectation was present that the Bill would
attempt to quantify the other factors
- Bill doesn’t want us to focus on:
a. That the expropriation is without consent.
b. How the land has any suitability of usefulness for the intended use for the expropriation
c. Provisor: if the state wouldn’t buy the land if it was up for say but would consider it for formal
expropriation
d. Any valuable enhancements that have been made that are expensive but unlawful
e. Improvements that are made to the property during the notification period. This could then be used as a
technique to get more compensation
f. Whether the market views the property as tainted.

There is currently a debate in SA as to whether it is possible to abandon immovable property. This is a step in the
right direction. We have too many home-owners who have just upped and left the property standing on it own.

NIL COMPENSATION =

It would be counter-intuitive if the state paid for a property twice hence this amount is excluded in areas where the
state has historically invested money in said land.
 - When you have been given notice of expropriations. The owner must be able to notify the state of any
improvements that have been made. It is thus imperative to keep record of all improvements that have been
made. The same with unregistered rights. There needs to be a full articulation of all rights related to that
land
- This would influence how much the state is willing to compensate hence they must be notified.
- CLAUSE 17: involvement of the court in the determination of compensation. At the moment the process is as
follows:
1. the state will make an offer
2. the private party can then counter with the offer
3. and if the state is not happy, they can proceed with their own offer.
4. The private party will then be able to ascertain assistance from the court

The EFF is against this process. They want to alter the role the courts plays in the process to try and provide a wider
safety net for private parties.

- CLAUSE 19:

APPLICATION (Clause 2)

1. Draws on s25(1) of the Constitution. The state may not expropriate the land arbitrarily or where it is not for
public purpose. Ensures that the state does not act ultra vires.
2. The public interest must be expressly stated
3. Expropriating authority cannot expropriate the property of an SOE without the approval of the Executive.
4. The idea of a ‘willing buyer – willing seller’. The state cannot expropriate without at first trying to reach
consensus with the private party
5. Should the Bill be signed an come into force, this new act would be umbrella legislation. It would aim to
facilitate expropriation through broader terms. However, this does not preclude expropriator powers in
other legislation such as:
- S9(3) of Housing Act
- Section 5 Infrastructure Development Act (may include a reference to this)
- Section 41(1)(c) of the Sanral Act
- Section 67(1) of the NEM