Towards a Clearer Understanding of the Difference between the Obligation to Pay Compensation and the Validity Requirements for an Expropriation
The motion of the National Assembly to review section 25 of the 1996 Constitution to permit expropriation of land without compensation has fuelled the debate regarding the role that expropriation and compensation plays in reaching land reform targets. The fact that the Constitution requires just and equitable compensation is viewed by some as a central obstacle in reaching land reform targets. This article sets out to distinguish between the validity requirements for an expropriation and the obligation on the part of the state to pay compensation. It is argued that compensation does not justify an expropriation. Therefore, an owner is not able to unduly delay an expropriation simply because he or she is not satisfied with the amount of compensation that is offered. Having a clearer understanding of the difference between the validity requirements for an expropriation on the one hand, and the obligation to pay compensation on the other, may placate the idea that land reform processes, such as awarding land to labour tenants in terms of the redistribution programme, is being held up as a result of the dispute surrounding the amount of compensation payable. This understanding may motivate the state to use its power to expropriate and finalise the expropriation process even in cases where the amount of compensation is disputed, provided that it is reasonable to determine compensation at a later stage. In this regard, the obligation to pay compensation will potentially no longer be viewed as an obstacle in reaching land reform targets.
Keywords: expropriation; compensation; land reform