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Card image 01 December 2016 Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg, Volume 2016 Number 4, Dec 2016, p. 680 - 696

The alternative project argument in the context of expropriation law (part 1)

Expropriation is unilateral state action whereby the state acquires property rights on land temporarily or permanently in order to enable the state or a private entity to use this land for a public purpose. The coerced acquisition of land is a severe infringement of the private property rights of the expropriatee. This infringement requires requires a justification in law that complies with the Constitution of the Republic of South Africa, 1996, which is the supreme law of the land to which all state action must adhere. Section 25(2) of the constitution permits expropriation on the basis of a law of general application if it serves a public purpose or is in the public interest and if the state provides just and equitable compensation. The justification thus lies in a public purpose or the public interest to the extent that law of general application authorises a state authority to expropriate property for such ends. As the common law does not provide a legal basis for expropriation, only a parliamentary statute can be law of general application in terms of section 25(2). Similarly, section 2 (1) of the Expropriation Act, clauses 2(1) and 3(1) of the 2015 expropriation bill, which was adopted by parliament on 26 May 2016 and has been sent to the president for assent, would authorise the minister of public works to expropriate property in the public interest or for public purposes connected with the execution of the minister’s mandate or upon request by an organ of state. The concepts of “public purpose” and “public interest” have been thoroughly discussed elsewhere and fall outside the scope of this contribution.

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