land expropriator

What is expropriation? Part 1:

The definition of the verb “expropriate” is usually couched as follows: “To take possession of (property), especially for public use, thus divesting the title of the private owner eg the government expropriated the owners land for a road, electricity pylons or for a public recreational area. In plain words, it means “to take something from one person’s possession for another one’s use and benefit.”

In the current South African context presently being debated, it refers to the Government expropriating a private owners land for public use. Usually, the private owner is compensated for his loss of ownership; but not always; and expropriation without compensation, if given effect to, will mean the Government not having to compensate the private owner in the event of his/her land being expropriated.

Does the current law allow for this? This is the question.

The answer is “Yes; it does; “in our opinion and we will elaborate on this over our next 2 blogs.

Currently, it is, however, a rare occurrence that no compensation at all is paid to the dispossessed owner. An example of this is where the Government; either National, Provincial of local Municipal Government; serves a notice of expropriation on an owner of land as they plan to put a road through the property or acquire road reserve or put up power lines or install bulk water pipes etc. This normally only affects a portion of that owner’s property and not the entire property; and usually compensation is paid for that portion of his land.

Bulk land can however also be expropriated as when a whole farm is expropriated or large sections of urban land for public use. As stated above, compensation is normally, in these instances also, paid to the private owner.

The current SA legal system therefore does provide for legal expropriation with compensation based a fairness and equity.

The other part of this debate, from a legal perspective and not a political one, is:

Does the current SA legal system provide for expropriation without compensation?

There are varying views on this topic but most of our astute legal minds especially in the field of Constitutional Law, have concluded that it does. The problem they tell us is that the law has not been fully or properly used in this regard.

Section 25 of The Constitution of the Republic of South Africa, Act No 108 of 1996 is often referred to as “the property (rights) clause.” It is part of Chapter 2 of the Constitution and part of the/our Bill of Rights. It is headed “Property” and has 9 subsections.

We intend to look at section 25 in its entirety in order to interpret it.

Subsection 1 reads: “No one may be deprived of property except in terms of law of general application and no law may permit arbitrary deprivation of property. “ This implies that expropriation is allowed provided that it is done lawfully and in terms of a law applicable to all and sundry; and that it is not done arbitrarily without valid reason.

Subsection 2 reads: “ Property may be expropriated only in terms of law of general application: (a) for public purpose or in the public interest; and (b) subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by these affected or decided or approved by a court.” This expressly implies that if the parties involved cannot agree on terms of payment, a court can and will do so. In our view a court in this instance would be entitled to come to a decision based on the above that: No compensation should be paid in a particular case. So this sub-section suggests and does allow for expropriation without any compensation either agreed to by the parties or authorised by a court.

Subsection 3 reads: “The amount of the compensation and the time and manner of payment 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 (a) the current use of the property; (b) the history of the acquisition and use of the property; (c) the market value of the property; (d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property: and (e) the purpose of the expropriation” These then are the circumstances that the parties involved in an expropriation; and if needs be a court; must bear in mind when arriving at a figure for compensation as envisaged in section 25 of our Constitution.

We will continue with our discussion of the other subsections of section 25 in our next blog and try to analyse it further.

Please visit our website at or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 41 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 19 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

‘Land Expropriation Without Compensation’

But what do those four words mean? No-one seems to know. Or to put it more accurately, no-one seems to have the same response for the same set of words.

It’s everywhere at the moment – in the papers, on the news and of course all over social media. Those four words that have white South Africans reaching for their passports.

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