No one may be deprived of or have their property expropriated, except if done with due process for the public interest, and in exchange for compensation that is just and market-related.
Expropriation of property occurs when the property is taken from the lawful owner without the active cooperation of the owner. What distinguishes expropriation from theft is that the former is lawful, but only in certain circumstances. Predominantly, expropriation is justified upon the basis that the right of ownership is outweighed by a more compelling public interest; typically this would include considerations such as the public right of way, mass transport, electricity and water reticulation and other requirements of that kind. In South Africa land restitution is also a factor in the expropriation of land.
However, wherever expropriation occurs it must be done in accordance with the time-honoured principles and the applicable rules. Expropriation, like every other exercise of state authority, is subject to the law.
ELEMENTS OF THE IMPERATIVE
Public use – Expropriation’s most basic function in society is to ensure individuals are not able to undermine the interests of the broader public when new infrastructure is constructed. Property may be expropriated for public use purposes, for instance, the building of highways through areas on which private property is located.
Public interest – The public interest must always be determined by what, in the circumstances, the reasonable person would consider to be in the public interest.
Compensation – Because expropriation occurs without the consent of the rightful owner of the property, elementary justice demands that the owner must receive reasonable compensation for the loss and inconvenience incurred. The compensation must be determined by an impartial referee (judicial officer) who applies a set of well-recognised rules in the determination made. These rules have been honed over many years in different jurisdictions, all seeking a similar answer to what might be a vexed question. Market-related prices, i.e. those prices the property would likely have fetched if voluntarily sold in the open market, are one of the principal determinants of just compensation. Because the rules have been tested and proven in this way they should not be readily departed from. The most critical principle in the determination of just compensation is the impartiality of the person making the decision.
Core – Section 25(1) of the Constitution.
Supporting – Section 7(1), 7(2), 9(1), 10, 13, 14, 18, 22, 26(1), 26(3), 33, 36, 195(1) of the Constitution.
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