Browsing by Author "Slade, B. V."

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    Addressing the issue in Harvey v Umhlatuze Municipality in legislation
    (Juta Law Publishing, 2014-01) Slade, B. V.
    In Harvey v Umhlatuze Municipality 2011 1 SA 601 (KZP) ("Harvey") the High Court had to decide whether it was competent to order the re-transfer of expropriated property to the previous owner when the purpose for which the property was expropriated could not be realised. The court refused to order the re-transfer of the property due to the absence of legislation that authorises the Court to re-transfer expropriated property upon the non-realisation of the purpose of the expropriation. In March 2013, a draft Expropriation Bill was released for public comment. This note shows that the Expropriation Bill, if passed into law, does not address the issue that was present in Harvey, but only allows for the re-transfer of previously expropriated property in very limited circumstances. Since the Expropriation Bill does not effectively address the issue that was present in Harvey, recommendations are made that should resolve the issue that was present in that decision. The main objective of the amending provisions should be to indicate the nature of the right of re-transfer, the persons entitled to claim re-transfer, the time-frame within which the expropriated owner can reclaim the property upon non-implementation of the purpose, setting up a framework for calculating the amount that has to be repaid, as well as the circumstances under which the state would not be required to re-transfer the property to the previous owner. Including detailed legislation that effectively resolves the issue in Harvey v Umhlatuze Municipality, the state would be prevented from changing the purpose for which expropriated property is used at its own discretion. It would also prevent the state from using a valid public purpose as a smokescreen to use the property for a different purpose after the property has been expropriated.
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    Public purpose or public interest and third party transfers
    (North-West University, Faculty of Law, 2014) Slade, B. V.
    In this article the difference between public purpose and public interest in section 25(2) of the 1996 Constitution is considered. It is generally accepted that public purpose is a narrower category than public interest and that the distinction between public purpose and public interest does not make any practical difference. However, in this contribution it is suggested that the difference between public purpose and public interest makes no practical difference only in cases where expropriated property is used by the state for the realisation of a particular purpose. The difference between public purpose and public interest becomes more important when a particular expropriation also involves a third party transfer, since it indicates the level of scrutiny that the courts should apply in determining the lawfulness of the expropriation. When property is expropriated and transferred to a third party for the realisation of a public purpose, such as building and managing electricity plants, the lawfulness of the expropriation is not easily questioned. As such, the application of a rationality test to determine the legitimacy of the expropriation is generally easy to accept. However, this lenient approach cannot be as easily accepted where an expropriation and third party transfer takes place in the public interest. Examples of third party transfers in the public interest include land reform, slum clearance and economic development. In the examples of land reform and slum clearance the expropriation and third party transfer is usually authorised in legislation or, as is the case with land reform in South Africa, the 1996 Constitution. Because (as in the land reform example) the expropriation and third party transfer is authorised by the Constitution and regulated by legislation, the application of a rationality test to determine the legitimacy is acceptable. However, the application of a rationality test where property is expropriated and transferred to third parties for broader purposes such as economic development is problematic, especially if there is no specific legislation authorising such expropriation. Although an expropriation involving a third party transfer for purposes of economic development may well be in the public interest because it can lead to the creation of employment opportunities, it is argued that in the absence of specific legislation that authorises both the expropriation and the transfer of the property to third parties, the justification for the expropriation and the transfer is not entirely clear. Therefore, in the absence of a clear legislative scheme authorising the expropriation and transfer of property to third parties for the purpose of economic development, which can be said to fall within a very broad interpretation of the public interest requirement in section 25(2), the courts should apply a stricter scrutiny in evaluating its legitimacy.
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    Submission to Parliament on the review of section 25 of the Constitution of the Republic of South Africa, 1996
    (2019) Slade, B. V.; Pienaar, J. M.; Boggenpoel, Z. T.; Kotze, T.
    On the 27th of February 2018, the National Assembly adopted a motion to review section 25 and other relevant provisions of the Constitution of the Republic of South Africa, 1996, to permit the state to expropriate land in the public interest without paying compensation. The Constitutional Review Committee, mandated by the National Assembly, has invited written submissions on this matter. We hereby submit our submission on the motion to review section 25 and other relevant provisions. We are also prepared to make oral representation if the need arises.
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    Towards a clearer understanding of the difference between the obligation to pay compensation and the validity requirements for an expropriation
    (University of Fort Hare, 2019) Slade, B. V.
    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.