Department of Public Works and Infrastructure
A detailed definition of “property” in the Expropriation Bill would create the risk that the proposed legislation restricts the definition of property.
The public works and infrastructure department highlighted this during a briefing in parliament on responses to submissions on the bill.
The bill currently defines “property” with reference to section 25 of the Constitution.
The department added that “there may indeed be circumstances where property that falls outside a restrictive definition needs to be expropriated”.
The bill was tabled in parliament in October 2020.
The bill, designed to provide for the expropriation of property for a public purpose or in the public interest, was published for comment at the beginning of 2019.
The department published the bill’s explanatory summary in Government Gazette 43798 in October 2020.
The bill aims to:
• provide for the expropriation of property for a public purpose or in the public interest;
• provide for certain instances where expropriation with nil compensation may be appropriate in the public interest; and
• provide for matters connected therewith.
According to the explanatory summary, the proposed legislation intends to give effect to the provisions of the Constitution including the equality clause (section 9); the property clause (section 25) and the just administrative action clause (section 33).
The bill also seeks to set up a “uniform framework for the expropriation of property across the three spheres of government without interfering with the existing expropriation legislative competence of expropriating authorities”.
According to the department, the uniform expropriation procedures set out in the bill will ensure certainty to all affected persons and institutions.
The bill will ensure that expropriating authorities publish an intended or actual expropriation including reasons for the expropriation.
The proposed legislation will also ensure that expropriation notices are served on affected persons and provide an opportunity to interested parties to raise objections and make representations to the expropriating authority.
The portfolio committee on public works and infrastructure concluded hearings on the bill in September 2021.
In a statement at the time, the committee expressed satisfaction with the “quality of inputs made by many South Africans across the length and breadth of the country”.
Other feedback provided by the department during the briefing includes that the definition of “expropriation” must be expanded to include situations where third-party beneficiaries (who are not organs of state) acquire property for a public purpose or in the public interest through an expropriating authority; expropriation needs to be linked to acquisition for a public purpose or in the public interest and to use of the property by the public or third parties in the public interest; the Constitution and the bill provide for just and equitable compensation, which in some cases will be nil; the bill expressly excludes unregistered mineral rights, recognised under the Mineral and Petroleum Resources Development Act 28 of 2002, from acquisition by an expropriating authority, in terms of clause 9(1)(b)(ii) and it was never the bill’s intention to depart from section 25(2)(b) and (3) of the Constitution.