01 April 2017 Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, Volume 2017 Number 1, Apr 2017, p. 21 - 35

Compensation for land reform expropriation

During June 2016 parliament approved the Expropriation Bill B4D1 of 2016 and sent it for the president’s signature. The bill is particularly significant because it is seen as discarding the “willing-seller-willing-buyer” principle in terms of which compensation was determined under the Expropriation Act 63 of 1975. This effectively hindered land redistribution in South Africa. It is foreseen that the bill will reinvigorate the land reform programme. In terms of section 25(3) of the Constitution of the Republic of South Africa, 1996 compensation for expropriation is awarded on the basis that the “amount”, and the “time and manner” of payment of compensation 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, and listing five “circumstances” or “factors” that can influence the amount of compensation. The compensation provisions in the 1975 Expropriation Act and those in the constitution are clearly not aligned, setting the courts the difficult task of resolving the issue. Jurisprudence in this regard is still evolving and despite a recent and valuable decision of the land claims court, Msiza v Director-General, Department of Rural Development and Land Reform, many uncertainties remain. Clause 12 of the 2016 Expropriation Bill B4D is a replica of section 25(3) of the constitution. Given the uncertainties experienced by the courts in applying the different factors in the determination of the amount of compensation clause 12 does not take the debate around the precise role of the different factors and how their application should influence the amount of compensation any further. As a result an examination of the relevant provisions in the 2016 bill are necessary to ascertain whether these can affect compensation, the “amount”, “time and manner” of which are “just and equitable”, particularly for land reform purposes.

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