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Card image 01 January 2017 Stellenbosch Law Review, Volume 28 Number 1, Jan 2017, p. 68 - 96

A “uniform procedure” for all expropriations? Customary property rights and the 2015 Epropriation Bill

The 2015 Expropriation Bill aims to comply with section 25 of the Constitution, but also to give effect to the rights of equality and just administrative action. The drafters have emphasised “uniformity across the nation” and “procedural fairness”. The question addressed in this article is whether the Bill is reasonably capable of meeting its objectives. Contrary to the Bill’s drafters’ assertion that the Bill is unconcerned with customary law, closer analysis suggests that expropriation (and thus compensation) of customary property rights is contemplated. Protecting customary property rights through prospective expropriation legislation is a welcome development, however, this article argues that more is required if the Bill is to be constitutionally compliant. By focusing on expropriation of communally-held land for an ordinary public purpose, this article highlights some of the difficulties with the Bill’s definitions and procedures. The argument begins by describing the specific nature and context of customary property rights, with a particular focus on land rights. Thereafter, the Bill’s definitions are analysed. Focus is first directed at the term “expropriating authority” to establish whether it authorises traditional leaders to become expropriators. Attention then shifts to the terms “holder”, “unregistered rights” and “property”. What emerges is a mixed picture which contemplates protection of customary property rights, but within a common-law paradigm. The lack of conceptual clarity proves problematic when examining the procedural implications of the Bill’s consultation processes. Structured as a “bargain” between an individual expropriatee and the state, these are unlikely to facilitate procedurally fair decision-making in relation to socially embedded and historically devalued customary property rights. The article thus concludes by arguing that, in light of the imperatives of substantive equality and substantial procedural fairness, the Bill must provide a supplementary consultation process for instances of expropriations of communal land. One mooted possibility is to adapt Interim Procedures Governing Land Development Decisions currently used by Department of Land Affairs and Rural Development officials.

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Halting new extraction projects will not be enough to stay within our rapidly dwindling carbon budget Some existing fossil fuel licences and production will need to be revoked and phased out early. Governments need to start tackling head-on how to do this https://www.theguardian.com/environment/2022/may/17/shut-down-fossil-fuel-production-sites-early-to-avoid-climate-chaos-says-study?CMP=share_btn_tw

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Thread in🧵🧵

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A project of Phuhlisani NPC supported by Absa. This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike. International License.