Workshop on Expropriation Bill; with Minister

NCOP Transport, Public Service and Administration, Public Works and Infrastructure

22 February 2023
Chairperson: Mr M Mmoiemang (ANC, Northern Cape)
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Meeting Summary


An expert group on Expropriation Law briefed the Committee on the background history of expropriation laws. The existence of similar laws worldwide and the basis of the right to expropriate were explained.

The Committee was briefed on what fell under the definition of property and the legal process and requirements for the expropriation of such property.

The Department of Public Works and Infrastructure briefed the Committee on the draft Expropriation Bill, and the processes that were envisaged and had to be followed during an expropriation process.

Members were told that expropriation without compensation was not intended to target investors and developers -- it was only for property that was required for the greater good of the public. The Committee was informed how fair value and the suitability of a property were determined.

Meeting report

Briefing by Expert Group on Expropriation Law

Prof Hanri Mostert, Dr Richard Cramer and Mr Gaopalelwe Mathiba, members of the University of Cape Town law faculty, presented the research findings around expropriation laws to the Committee.

The Committee was informed that the power to expropriate came from the state’s eminent domain. By organising oneself politically, individuals relinquished rights in favour of the organised group -- the state. This then resulted in laws that protect property, but individual rights were then lost to obtain the protection of that property. Individual holders would not easily let go of property, but if the state required such property for the greater benefit of society, it had the power to expropriate it.

The next question was, what could and should the state do with their power to expropriate? It was the responsibility of the state to ensure the fair distribution of resources. To ensure fairness, expropriation was typically globally bound to requirements. Furthermore, the taking must be for public use and in the public interest.

How did the power to expropriate shape society, and how did society shape the power to expropriate? The three factors that came into play in this regard were power, the formation of a state, the laws regulating that, and the space or property available.

The question then arose, who could expropriate and what could be expropriated? The power to expropriate was embedded in legislation, firstly the Constitution, and different departments received their power to expropriate through the relevant legislation applicable to their specific department. In the South African context, one department that did not have these rights was local government.

The next question that arose was, what could be expropriated? It was very clear that land could be expropriated, but it was not limited to land. It included any physical property, rights to minerals, limited real rights, claims for unjustified enrichment, liquor licences, intellectual property and shares.

The expropriation of property must be legitimate, and this would be tested by rationality (suitability, or for sound reasons) or proportionality (benefits and adverse impact). Did the end justify the means?

The following stages of expropriation must be followed:

  • Investigation and valuation;
  • Notice of intention to expropriate;
  • Notice of expropriation;
  • Verification of unregistered rights on property; and
  • Determination of compensation.


Mr M Dangor (ANC, Gauteng) asked for some clarity on a practical situation around the Salt River project. The Koi San had been dispossessed of land that was now earmarked for development by Amazon. This land was not registered when it was dispossessed. Who would be compensated?

Dr Nomathemba Mokgethi (ANC, Gauteng Legislature) asked what procedure was followed if the owner of the land was overseas, and shacks were mushrooming because of orchestrated land invasions. How did one expropriate land when people were not reachable?

Mr Alan Fuchs (DA, Gauteng Legislature) asked what the legal argument around fairness was. He also asked where the liability lay if the property still had a bond on it and was expropriated.

Mr Vusimusi Tshabalala (ANC, Free State Legislature) asked how municipal tribunals would be assisted.

Mr T Brauteseth (DA, KZN) said the bill stated that property could be expropriated for public use and public interest, but who determined this? He expressed his concern that the definition of property was vague -- why was it necessary to go further than land and include business and art? He also asked what protection there was for the property owner to defend him/herself in court. Who determined the compensation, and what factors would be taken into consideration?

The Chairperson asked what remedies/actions were available if a department took a decision that was irrational.


Prof Mostert said that the Salt River situation involved expropriation on behalf of a third party and a case of restitution. If owners were not easily found, they must have a domicile address in the property register, and notices could be served to that address. The orchestrated invasions and generally informal settlements were great examples of where the state lost power. She explained that bondholders would be affected through expropriation and should be treated fairly. The bill anticipated that land with bonds could be targeted for expropriation, and bondholders must also be served with notices. Both the interests of owners and bondholders must be dealt with equitably and taken into consideration.

DPWI presentation on Expropriation Bill

Ms Particia de Lille, Minister of Public Works and Infrastructure (DPWI), introduced Adv Uday Naidoo to present the Expropriation Bill to the Committee.

Adv Naidoo said the bill was not unique to South Africa. It may have different names in other countries, but the outcome was the same. The purpose of the bill in South Africa was to redress the injustices of the past. The Presidential Advisory Committee had found that the 1975 act was inconsistent with the Constitution.

He informed the Committee that the National Assembly had passed the Bill in September 2022. The National Council of Provinces (NCOP) now had to consider the Bill.

The Expropriation Act of 1975 was old-order legislation that still had the force of law by virtue of the transitional provisions in Schedule 6 to the Constitution. Courts had interpreted the Expropriation Act consonantly with those parts of section 25 of the Constitution (property clause) relevant to expropriation. However, the Expropriation Act was not a statute enacted pursuant to the property clause, while the Bill, on the other hand, was meant to be just that.

The Bill governed only administrative and judicial expropriations. It did not cover expropriations that could occur by enacting legislation. Administrative decisions to expropriate property were subject to administrative law. Most decisions to expropriate property under the Bill would be administrative in nature.

The Bill thus aimed to incorporate administrative law principles and rules. Decisions must be procedurally fair and rational. People whose rights might be affected by a decision should be heard before the decision is taken, and their representations should be considered during the decision-making process. Decisions must be reasonable, taking into account all relevant factors and considering all affected interests to reach an outcome.

The Constitution allowed for expropriation of property only for a public purpose or in the public interest. These two variables constrained the power of expropriation. This was reflected in the Bill. Expropriations for a public purpose typically entailed the acquisition of property by the state for a legislatively authorised use or object, either directly by the public or indirectly for their benefit. For example, land could be expropriated to build a dam, a road or a hospital.

Expropriations in the public interest included the state’s commitment to land reform, and reforms to bring about equitable access to natural resources. Land could therefore be expropriated from an owner and transferred to another person if it was in the public interest, as sanctioned by the Constitution. The Bill set the framework for expropriations for a public purpose and in the public interest.

The Bill spelt out a more detailed method for expropriation than the Expropriation Act, which was consistent with the property clause. First, an expropriating authority must identify whether it needs property for a public purpose or in the public interest, regarding its empowering legislation. Once it has established a need, it must find a suitable property to meet it. The Bill therefore requires an expropriating authority to investigate the suitability of the property for the identified need.  Once the property had been identified, the expropriating authority must determine what rights were attached to that property and to whose benefit they inured. Who was the owner? Who had other rights to the property, like registered servitudes or life rights? Were there other competing interests, like land restitution claims over the property? This would determine if the property was suitable for expropriation.

The characteristics of the property would also be relevant. If the property was land, the expropriating authority must be satisfied that it would be appropriate for the intended project. Inspectors and valuers therefore needed to be engaged. During the investigation phase, the owner or occupier’s privacy must be respected.

The municipality should also be engaged in the case of land, to find out about the property’s zoning, outstanding municipal property rates or other charges relating to the property, and the availability of services. The municipality may have other plans for the property that may clash with the purpose of the intended expropriation. This information would also help the expropriating authority to decide whether it could use the property for the intended purpose. Some immovable property may be subject to a mortgage. The expropriating authority would need to know who the mortgagee was, and how much was outstanding on the bond.

Secondly, if the expropriating authority considered the property to be suitable for expropriation, it must calculate the amount of compensation it thought would be just and equitable, having regard to the factors in the property clause, which were replicated in clause 12. With this done, it could make a decision on whether it wanted to expropriate. If the expropriating authority considered the property suitable for expropriation, it must give notice of its intention to expropriate to everyone who had an interest in the property. The notice of intention to expropriate would invite interested parties to accept the offer of compensation, to request further information, or to dispute the offer of compensation.

Since expropriation was not consensual -- it was the compulsory acquisition of property for a public purpose or in the public interest -- the intention to expropriate was not an invitation to purchase. But because the property clause states that the amount of compensation may either be agreed on or decided or approved by a court, the notice of intention to expropriate needed to give the person who would be expropriated the chance to agree to an amount of compensation. If there was no agreement at that stage, then the expropriating authority and the party to be expropriated could mediate their dispute on compensation. If that did not work or was not likely to work, a court must decide whether the offer of compensation was just and equitable. Clause 19 regulates disputes on the amount of compensation. Once there was agreement or a decision on the amount of compensation, the expropriation could proceed.

The expropriating authority must issue a notice of expropriation. The notice of expropriation states when ownership passes. Even after ownership passes, the expropriated person could keep possession of the property and use it until the date on which the right to possession passes. Meanwhile, the expropriated person would be responsible for paying municipal rates and charges on the property and maintaining the property. The expropriating authority must pay the compensation to the expropriated person before the date on which the right to possession passes.

If there was a dispute about who was entitled to receive compensation, the expropriating authority may deposit the compensation with the Master, who would pay the relevant party to the dispute after its resolution. Some expropriations could not wait for the ordinary process to run its course because they were inherently urgent. The state may need property in an emergency for temporary use, like requisitioning vehicles during a disaster, or buildings in times of war. The Bill catered for urgent expropriations. All expropriations must be recorded in an expropriation register, which was open to the public.


Mr Brauteseth was of the opinion that the bill opened many areas for litigation. Where was the protection of an owner who was asset rich, but cash poor? How was that person protected against legal action? In light of the statement by Adv Naidoo that the bill was there to assist with land redistribution, why did they not exclude moveable and non-tangible assets from the bill? Lastly, he wanted to know why enhancements to properties were not taken into account.

Mr Dangor asked if areas like District Six, Sophiatown, Vrededorp and the current Salt River project had been looked at. Who would be compensated for that land, seeing that it had originally been expropriated without compensation?

The Chairperson asked what process would be followed if there was no agreement around the expropriation.


Adv Naidoo indicated that only unlawful enhancements were excluded from the calculation of fair compensation. He pointed out that the bill did not provide for any funding mechanisms for legal aid.  He emphasised that the process had been changed in the order that the amount of compensation should first be determined, and thereafter a decision to expropriate could be taken. The bill therefore assisted by allowing the process to run only when all the information was available – this would save the owner costs if there was no agreement.

He responded that intangible assets should not be removed, as the bill should not be under the exclusive monopoly of a specific industry. Intangible property may fall more under the categories of public purpose than public interest, which would probably involve expropriation on behalf of a 3rd party.

He confirmed that expropriation without compensation was not intended to target investors and developers -- it was only for property that was for the greater good of the public. He added that expropriation could occur before compensation, but taking ownership could occur only after compensation.

The Committee was informed that provincial briefs were scheduled for 15 March, and that a total of 10 000 submissions had been received that would be scrutinised for possible inclusion.

Adoption of minutes

The minutes of the Committee's meetings on 22 and 30 November 2022, and 8 February 2023, were adopted.

The content advisor undertook to update the Committee Members on the arrangements for their study tour.

The meeting was adjourned.                                                                                                                                           

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