The new Expropriation Bill was released for public comment at the end of March. It comes after a number of earlier bills that have been prepared by the Department of Public Works, the last of which was introduced in the National Assembly in mid-2008 and subsequently withdrawn.

The old bill was unconstitutional because it attempted to oust the jurisdiction of the courts and provided that the state could acquire property at a discount if the purpose was to redress previous inequalities.

The new Expropriation Bill, once adopted, will be a key tool in driving reform initiatives. It will allow the state to expropriate property to achieve land reform and access to natural resources. What will change if the new Expropriation Bill is brought into law?

The bill substantially widens the definition of property for which compensation must be paid. Under the existing Expropriation Act, compensation is paid only for the expropriation of registered rights.

Property will now include all rights in property, whether registered or not, and property is not limited to land.

The second major change is that the bill allows the expropriation of property, not only for a public purpose but also in the public interest. Public interest is defined to include the state’s commitment to land reform and to bring about equitable access to all natural resources by the previously disadvantaged. The state will be armed with the legal ammunition to pursue land and natural resource reform, and redistribution without having to adhere to the willing buyer, willing seller principle.

The final significant change is that the factors that need to be taken into account in determining compensation have been widened from those set out in the Expropriation Act. Compensation must be just and equitable after balancing the public interest and the interest of the owner of the property having regard to all relevant circumstances. Those circumstances include the present use of the property, the history of the acquisition, the market value of the property, the extent of state investment in the property and the purpose of the expropriation.

In most cases, just and equitable compensation will be equivalent to market value. The state has abandoned the argument that the constitution allows the state to acquire property at less-than-market value if the purpose is to redress previous inequalities.

Further progress of the bill needs to be carefully monitored as well as its implementation once it has been passed by Parliament.

It remains to be seen whether the Expropriation Bill will be used by the state to drive land reform.