This article comments on the procedural novations in South Africa’s latest Expropriation Bill (2015), which is awaiting presidential signature. It questions the need for a revision of the scale envisaged by the Bill and concludes that the motivation for introducing a new generation of expropriation law is not primarily because the existing law is “of preconstitutional vintage” but rather because of far-reaching changes envisioned in government’s policies on land and agricultural reform. The analysis includes a comparison of the structure and content of the 2015 Bill and the existing Expropriation Act of 1975. It focuses particularly on the process envisaged by the Bill, and scrutinises the additional steps in the process added for accountability in the pre-expropriation phase: investigation, state consultation and notification. In conclusion the analysis is critical of the poor attempts at involving the expropriatee as a key stakeholder in consultations which should be formative of the decision to expropriate.
I have dealt with some of the issues leading in to this paper in prior publications. See H Mostert, ‘Land as a “National Asset” under the Constitution: The System Change Envisaged by the 2011 Green Paper on Land Policy and what this means for Property Law under the Constitution2014’ (2014) 17 (2) Potchefstroom Electronic Law Journal(PER) <http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/p-per/issuepages/2014volume17no2/2014 %2817 %292MostertArt.pdf> accessed 6 September 2016, and H Mostert, ‘The Poverty of Precedent on Public Purpose/Interest: An Analysis of Pre-constitutional and Post-apartheid Jurisprudence in South Africa’ in B Hoops, EJ Marais, H Mostert, JAMA Sluysmans and LCA Verstappen (eds), Rethinking Expropriation Law I: Public Interest in Expropriation (Eleven and Juta Law 2015) 61 et seq. I found the work of the students in my Advanced Property Law elective course of 2015, whose research papers I supervised and helped shape, very helpful. The students whose work I found especially appurtenant are Nina Braude and Lisa de Waal, and I have incorporated their arguments where appropriate. Richard Cramer and Cheri Young provided much appreciated comments, research and technical assistance. The National Research Foundation’s financial support is gratefully acknowledged. Opinions expressed here, and remaining errors, are mine. They should not be attributed to the institution or any of the individuals mentioned.
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