1. Public and Private Interest in Expropriation Matters An analysis of developing trends and precedents

2. OUTLINE The aim of my paper – scope of interest Terminology – the Expropriation Act and The Constitution The Act in context - briefly The interpretation of s 25 in context – founding values and their influence on interpretation Minor case studies: Du Toit v Minister of Transport, Lebowa Mineral Trust case. Whether the individual right to property is given any weight when considering expropriations

3. Definition: The focus of my research is expropriation: according to Silberg & Schoeman: “expropriation takes place where a public authority, with or without the consent of the owner, acquires ownership or transfers it to a third party”

4. The lawfulness of an expropriation of land is determined by whether the state expropriated it for the ‘public purpose’. This is the safeguard against the expropriation being deemed unlawful or arbitrary, thus acting as a limitation on the power of the state to expropriate.

5. The focus of my research paper At present there are two bodies of legislation dealing directly with the expropriation of private property, The Constitution – specifically s 25 The Expropriation Act 63 of 1975. My focus is going to be on the interpretation of public interest (or purposes) as a requirement for expropriation, and as a subsection I will look at whether individual interests are included in this equation.

6. “PUBLIC PURPOSES” Expropriation Act Defines public purposes of expropriation as the following: “includes any purposes connected with the administration of the provisions of any law by an organ of State.” The Constitution Defined as in s 25 (4) (a): “the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources” and furthermore the state has a duty to take measures to allow for fair distribution of land through various measures at its disposal, legislative and otherwise.

7. The need for an analysis of this kind? The Expropriation Act is outdated, was conceived during the old regime for different purposes – the context has now changed, thus it is necessary to consider the concept of expropriation afresh, especially in view of land reform revelations and commitments.

8. I aim to prove: that due to s 25 there has been a change in the understanding of public interest, and this has had an impact on how individual property rights have been affected. Possible to find a way of marrying the Constitution and the Expropriation Act - the meaning & interpretation of ‘public interest’.

9. The context of the Expropriation Act: Context was an all-important factor in the interpretation of the Expropriation Act prior to the drafting of the Constitution. The Act was drafted for the purposes of furthering the apartheid government’s divisive land policies and providing restricted areas in which whites lived separately to blacks. Most often, it appears that expropriation took place against the backdrop of creating ‘bantustans’ a term used for areas where traditional groups would be situated and confined to.

10. Pre-constitutional jurisprudence on the interpretation of “public purposes” Difficulties arose because of the practice of separating “public purposes” public interestpublic use Since the constitution, however, these terms are no longer distinguishable and either may be utilised with regards to the expropriation.

11. Expropriation v Regulation Another aspect of pre-constitutional case law is the distinction made between expropriation and regulation. Briefly: Regulatory measures were exercised by virtue of the state’s police powers & were viewed in the context of the state’s duty to promote, amongst other things – the security and economic prosperity of its citizens. Expropriation, on the other hand, was understood as a permanent deprivation of an owner’s right to his property against the payment of compensation. I aim to look more deeply at this in my paper and whether the distinction has had any impact on the wider meaning attributed to public purposes in s 25.

12. Changing the scene The constitutional context in which expropriations now take place is radically different. Land reform involves state commitment to implementing policies that correct the imbalance in property holding that was caused by apartheid land law.

13. The context (when interpreting s 25) Zimmerman and the core value of transformation. Equality clause as part of the interpretation. Sachs J – opposing interests in s 25, the need for balance. Ackermann J and the dual purpose of s 25. Pay attention to the inherent tension. The right to property has never been an absolute right. Land reform is sufficient but not necessary, on an interpretation of s 25 (4) (a) to meet the requirement. Zimmerman maintains: a holistic view is required.

14. The limitations clause Expropriations are a limitation of the right to private property. If an expropriation does not comply with the requirements that it be in the public interest and against the payment of compensation, then the question of whether it is justifiable in terms of s 36 emerges,

15. Public purpose in s 25 Capable of being viewed in a broader or narrower sense. S 25  more flexible and inclusive. Protective aspects of the s 25 on a lower rung of the ladder than reformative aspects.

16. Other ‘public purposes’? In the Du Toit v Minister of Transport (CC) case, It was uncontested by the applicants and accepted by the court that expropriation for the purposes of upgrading a highway is a matter of public interest, and even the applicant in the matter, as a member of the public and a farmer who frequently used the roads would benefit from this. What was expropriated in this case? A right to use the land temporarily for the construction of a public road or the gravel from the land for purposes in connection with the building of a national road.

17. Silberberg & Schoeman ( The Law of Property) suggest in light of the decision in Du Toit (and others), courts are currently inclined to consider the purpose of expropriation leniently, both in a transformation context, as well as in relation to more ordinary or usual expropriations, to the general detriment of the expropriatees.

18. Lebowa Mineral Trust Beneficiaries Forum v President of the Republic of South Africa 2002 (1) BCLR 23 (T) Addition of the wider term “public interests” to “public purpose” in the Constitution. Emphasises the limited scope of the judiciary to set aside an expropriation on the grounds of its purpose.

19. Whether the public purpose requirement will have an impact on the determination of compensation to be paid out to the affected landowner – whether it be in reformative context, or for the purposes of building a public road.

20. Does the individual right to private property still feature in the expropriation equation? The two main elements distinguishing expropriations from arbitrary deprivations of land are that the expropriation must be in the public interest and against the payment of compensation – with certain factors to consider when calculating this amount. Thus it is possible, that individual property rights are not entirely ignored in the context of expropriations, but rather that there are elements of s 25 that provide for a consideration of private property rights in the context of an expropriation.

21. Just and equitable… Du Toit case: Langa CJ in the minority claims that in requiring that the compensation be just and equitable at s 25 (3) – the compensation must be based on an equitable balance between the public interest and the interests of those affected. Justice and equity is paramount and in this way s 25 takes into account the private individual property rights.

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