Abstract

The Joint Constitutional Review Committee has recommended amendments to the South African Constitution that will confirm that expropriations for land-reform purposes without compensation are constitutional. The draft 2019 Expropriation Bill, published in December 2018, sets out the conditions under which those expropriations will be permissible, in the view of the Ministry of Public Works. This article examines the impact of zero compensation on the justification of expropriation and the constitutional protection of property from expropriation. In terms of s 25(2) of the Constitution, land-reform and other redistribution-related purposes are purposes in the public interest. The absence of compensation will remove a fiscal brake on the state’s power to expropriate property and, in connection with a broad authorisation to expropriate property, create strong incentives to expropriate property for redistribution where this is politically expedient, even though the more severe impact of expropriation without compensation on the expropriatee should lead to more stringent requirements for expropriation. Therefore, the constitutional amendment or new expropriation legislation should specify in detail the conditions for expropriation without compensation. Zero compensation creates a similar incentive with respect to including additional assets in a redistribution-related project. Judicial scrutiny of the necessity of the expropriation is likely to be undermined by the absence of compensation. The requirement of reasonableness, by contrast, will set boundaries to expropriation without compensation. Only expropriations for redistribution-related purposes of underutilised assets owned by direct or indirect beneficiaries of subsidies from the apartheid regime should pass judicial scrutiny. In addition, the state should respect other fundamental rights of the expropriatee.