Providing better protection for expropriatees? Preliminary thoughts on the interpretation of 'arbitrarily' in clause 2(1) of the Expropriation Bill B4D-2015

Expropriation is one of the key tools in the hands of the state to realise land reform. Yet, over the last 20 years the state seems to have been hesitant to use this power for this purpose. This could be attributed to the fact that our expropriation law is still governed by the Expropriation Act 63...

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Bibliographic Details
Published in:South African journal on human rights 2017-04, Vol.33 (1), p.97-119
Main Author: Marais, EJ
Format: Article
Language:English
Subjects:
Administrative law
Constitutional interpretation
Constitutions
Expropriation
Expropriation law
Land reform
Legislatures
Power
Property
Public interest
Public lands
Statutory interpretation
Subsidiarity
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Summary:Expropriation is one of the key tools in the hands of the state to realise land reform. Yet, over the last 20 years the state seems to have been hesitant to use this power for this purpose. This could be attributed to the fact that our expropriation law is still governed by the Expropriation Act 63 of 1975, which is of pre-constitutional vintage. Since 2013 Parliament has been in the process of promulgating a new Expropriation Act to align our expropriation regime with the constitutional provisions that govern this power. The latest version of the Expropriation Bill provides that an expropriating authority may not expropriate property 'arbitrarily'. This term is new and does not appear in any of the sources which govern expropriation, including s 25(2)-(4) of the Constitution. It is thus imperative to interpret this term, as it has a bearing on the substantive validity of expropriations, which could potentially pose a threat to the state's legitimate land-reform initiatives if the level of protection afforded to property holders is too high. From a subsidiarity-principle perspective, I argue that reasonableness in administrative law should form the primary interpretative framework for construing 'arbitrarily'. This interpretive approach, as informed by the works of various authors, addresses the inherent tension in the property clause by striking a proper balance between the protection of property and the public interest (in the form of achieving land reform via expropriation), thus enabling the state to fulfil its transformative obligations.
ISSN:0258-7203
1996-2126
DOI:10.1080/02587203.2017.1303905