Newsflash | The amendment to the property clause

The much-awaited draft Constitution 18th Amendment Bill will be gazetted next week. The change to section 25, often called ‘the property clause’, is to state – explicitly – that a court may determine that no compensation is payable in instances where land is expropriated for land reform purposes.

Why ‘explicitly’? This is because, as section 25 reads at present, a court is given a very wide discretion to determine the amount of compensation to be awarded when land is expropriated and a court may well, when exercising its discretion, decide that no compensation is payable.

The amendment introduces into the property clause the possibility that “where land and any improvements thereon are expropriated for the purposes of land reform, determine that the amount of compensation is nil”. A further subsection requires that national legislation should be put in place to set out specific circumstances where a court may determine nil compensation.

There will be public hearings in February 2020. Then the process of parliamentary deliberation follows and ultimately it will be formally tabled in the National Assembly for a vote. If approved, the process to draft the enabling legislation must commence. This is likely to be in the form of a new Expropriation Act. (Over the past decade there has been a few attempts to establish new legislation regarding expropriation, but these were abandoned.)

The Amendment Bill can be viewed here.
We will keep you posted of further developments.

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