REPUBLIC OF SOUTH AFRICA

EXPROPRIATION BILL

(As introduced in the National Assembly (proposed section 76); explanatory summary of Bill and
prior notice of its introduction published in Government Gazette No. 43798 of 9 October 2020))
(The English text is the offıcial text of the Bill)

(MINISTER OF PUBLIC WORKS AND INFRASTRUCTURE)

[B 23—2020] ISBN 978-1-4850-0666-4

No. of copies printed ....................................... 350

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BILL
To provide for the expropriation of property for a public purpose or in the public
interest; to provide for certain instances where expropriation with nil compensa-
tion may be appropriate in the public interest; and to provide for matters
connected therewith.

PREAMBLE

WHEREAS section 25 of the Constitution of the Republic of South Africa, 1996,

provides as follows:

‘‘Property

25. (1) No one may be deprived of property except in terms of law of

general application, and no law may permit arbitrary deprivation of
property.
(2) Property may be expropriated only in terms of law of general
application—
(a) for a public purpose or in the public interest; and
(b) subject to compensation, the amount of which and the time and
manner of payment of which have either been agreed to by those
affected or decided or approved by a court.
(3) The amount of the compensation and the time and manner of
payment must be just and equitable, reflecting an equitable balance
between the public interest and the interests of those affected, having
regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section—
(a) the public interest includes the nation’s commitment to land reform,
and to reforms to bring about equitable access to all South Africa’s
natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures,
within its available resources, to foster conditions which enable citizens
to gain access to land on an equitable basis.
(6) A person or community whose tenure of land is legally insecure as
a result of past racially discriminatory laws or practices is entitled, to the
extent provided by an Act of Parliament, either to tenure which is legally
secure or to comparable redress.
(7) A person or community dispossessed of property after 19 June
1913 as a result of past racially discriminatory laws or practices is
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entitled, to the extent provided by an Act of Parliament, either to

restitution of that property or to equitable redress.
(8) No provision of this section may impede the state from taking
legislative and other measures to achieve land, water and related reform,
in order to redress the results of past racial discrimination, provided that
any departure from the provisions of this section is in accordance with
the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsection
(6).’’; and

WHEREAS section 33(1) of the Constitution provides that everyone has the right to
administrative action that is lawful, reasonable and procedurally fair; and

WHEREAS section 34 of the Constitution provides that everyone has the right to have
any dispute that can be resolved by the application of law decided in a fair public hearing
before a court or, where appropriate, another independent and impartial tribunal or
forum; and

WHEREAS uniformity across the nation is required in order to deal effectively with
these matters;

AND IN ORDER TO ENABLE expropriation in accordance with the Constitution,

B E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,

as follows:—

ARRANGEMENT OF ACT

CHAPTER 1
DEFINITIONS AND APPLICATION OF ACT 5

1. Definitions
2. Application of Act

CHAPTER 2
POWERS OF MINISTER TO EXPROPRIATE

3. Powers of Minister to expropriate 10

4. Delegation or assignment of Minister’s powers and duties

CHAPTER 3
INVESTIGATION AND VALUATION OF PROPERTY

5. Investigation and gathering of information for purposes of expropriation

6. Consultation with municipality during investigation 15

CHAPTER 4
INTENTION TO EXPROPRIATE AND EXPROPRIATION OF PROPERTY

7. Notice of intention to expropriate

8. Notice of expropriation
9. Vesting and possession of expropriated property 20
10. Verification of unregistered rights in expropriated property
11. Consequences of expropriation of unregistered rights and duties of expropriating
authority
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CHAPTER 5
COMPENSATION FOR EXPROPRIATION

12. Determination of compensation

13. Interest on compensation
14. Compensation claims 5
15. Offers of compensation
16. Requests for particulars and offers
17. Payment of amount offered as compensation
18. Property subject to mortgage or deed of sale
19. Payment of municipal property rates, taxes and other charges out of compensation 10
money
20. Deposit of compensation money with Master

CHAPTER 6
MEDIATION AND DETERMINATION BY COURT

21. Mediation and determination by court 15

CHAPTER 7
URGENT EXPROPRIATION

22. Urgent expropriation

CHAPTER 8
WITHDRAWAL OF EXPROPRIATION 20

23. Withdrawal of expropriation

CHAPTER 9
RELATED MATTERS

24. Service and publication of documents and language used therein

25. Extension of time 25
26. Expropriation register
27. Civil offences and fines
28. Regulations
29. Regulations, legal documents and steps valid under certain circumstances
30. Interpretation of other laws dealing with expropriation 30
31. Repeal
32. Transitional arrangements and savings
33. Short title and commencement

CHAPTER 1
DEFINITIONS AND APPLICATION OF ACT 35

Definitions

1. (1) In this Act, unless the context indicates otherwise—

‘‘claimant’’ means a person who has lodged a claim for compensation with an
expropriating authority arising from or in connection with an expropriation of property;
‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996; 40
‘‘court’’ means—
(a) a High Court within whose area of jurisdiction a property is situated;
(b) a Magistrate’s Court within whose area of jurisdiction a property is situated,
having competent jurisdiction and designated as such in terms of paragraph
(b)(ii) in the definition of ‘court’ in section 1, read with section 9A, of the 45
Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000); or
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(c) in the case of intangible property, the court within whose area of jurisdiction
the owner of that property is ordinarily resident or has its principal place of
business within the Republic;
‘‘date of expropriation’’ means the date mentioned in the notice of expropriation,
which date must not be earlier than the date of service of such notice; 5
‘‘deliver’’, in relation to any document, means to deliver by hand, facsimile
transmission or post as contemplated in section 24(3) and (4);
‘‘Department’’ means the Department of Public Works and Infrastructure;
‘‘Director-General’’ means the Director-General of the Department;
‘‘disputing party’’ means an owner, holder of a right, expropriated owner or 10
expropriated holder who does not accept the amount of compensation offered in terms
of section 14(1) or 15(1);
‘‘expropriated holder’’ means a holder of an unregistered right in property, which right
has been expropriated by notice in terms of section 8(1) or in terms of section 9(1)(b);
‘‘expropriating authority’’ means an organ of state or a person empowered by this Act 15
or any other legislation to acquire property through expropriation;
‘‘expropriation’’ means the compulsory acquisition of property by an expropriating
authority or an organ of state upon request to an expropriating authority, and
‘‘expropriate’’ has a corresponding meaning;
‘‘holder of a right’’ means the holder of an unregistered right in property; 20
‘‘land parcel’’ means land that has been surveyed and is either registered or yet to be
registered in a deeds registry;
‘‘Master’’ means the Master of the High Court;
‘‘Minister’’ means the Minister responsible for Public Works and Infrastructure;
‘‘notice of expropriation’’ means a notice contemplated in section 8; 25
‘‘organ of state’’ means an organ of state as defined in section 239 of the Constitution;
‘‘owner’’, where the ownership of the property or right in question is registered, means
the person in whose name such property or right is registered, and—
(a) if the owner of any property or registered right in land is deceased, means the
executor of his or her estate and if no executor has been appointed or his or her 30
appointment has lapsed, the Master;
(b) if the estate of the owner of any property or registered right in land has been
sequestrated, means the provisional or final trustee of his or her insolvent
estate, as the case may be, or if no such appointment has been made, the
Master; 35
(c) if the owner of any land or registered right in property is a company that is
being wound up, means the provisional or final liquidator of that company, or
if no such appointment has been made, the Master;
(d) if any property or registered right in property is vested in a liquidator or trustee
in terms of any other law, means that liquidator or trustee; 40
(e) if the owner of any property or registered right in property is otherwise under
a legal disability, means his or her representative by law;
(f) if any land or registered right in property has been attached in terms of an
order of a court, means the sheriff or deputy sheriff, as the case may be;
(g) in the case of a public place, road or street under the control of a municipality, 45
means that municipality;
(h) for the purposes of section 5, includes a lawful occupier of the land concerned;
and
(i) includes the authorised representative of the owner, which authorised
representative is ordinarily resident in the Republic; 50
‘‘possession’’ includes the exercise of a right;
‘‘prescribed’’ means prescribed by regulation;
‘‘property’’ means property as contemplated in section 25 of the Constitution;
‘‘public interest’’ includes the nation’s commitment to land reform, and to reforms to
bring about equitable access to all South Africa’s natural resources in order to redress the 55
results of past racial discriminatory laws or practices;
‘‘public purpose’’ includes any purposes connected with the administration of the
provisions of any law by an organ of state;
‘‘registered’’ means registered or recorded with a government office in which rights in
respect of land, minerals or any other property are registered or recorded for public 60
record in terms of any law;
‘‘regulation’’ means a regulation made in terms of section 28;
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‘‘service’’, in relation to a notice as contemplated in section 24(1), means to serve by

delivery or tender, post, publication or in accordance with the direction of a court, and
‘‘serve’’ has a corresponding meaning;
‘‘this Act’’ includes the regulations;
‘‘unregistered right’’ means a right in property, including a right to occupy or use land, 5
which is recognised and protected by law, but is neither registered nor required to be
registered; and
‘‘valuer’’, in relation to land, means a person registered as a professional valuer or
professional associated valuer in terms of section 19 of the Property Valuers Profession
Act, 2000 (Act No. 47 of 2000). 10
(2) (a) A Saturday, Sunday or public holiday must not be reckoned as part of any
period calculated in terms of this Act.
(b) The period 20 December to 7 January inclusive, must not be reckoned as part of
any period calculated in terms of this Act.

Application of Act 15

2. (1) Despite the provisions of any law to the contrary, an expropriating authority
may not expropriate property arbitrarily or for a purpose other than a public purpose or
in the public interest.
(2) Despite the provisions of any law to the contrary, an expropriating authority may
not expropriate the property of a state-owned corporation or a state-owned entity 20
without the concurrence of the executive authority responsible for that corporation or
entity.
(3) Subject to section 22, a power to expropriate property may not be exercised unless
the expropriating authority has without success attempted to reach an agreement with
the owner or holder of a right in property for the acquisition thereof on reasonable terms. 25
(4) An expropriating authority may expropriate property in terms of a power
conferred on such expropriating authority by or under any law of general application,
provided that the exercise of such power is in accordance with sections 5 to 27 and 31.

CHAPTER 2
POWERS OF MINISTER TO EXPROPRIATE 30

Powers of Minister to expropriate

3. (1) Subject to the provisions of Chapter 5, the Minister may expropriate property
for a public purpose or in the public interest.
(2) If an organ of state, other than an expropriating authority, satisfies the Minister that
it requires particular property for a public purpose or in the public interest, then the 35
Minister must expropriate that property on behalf of that organ of state upon its written
request, subject to and in accordance with the provisions of this Act.
(3) The Minister’s power to expropriate property in terms of subsections (1) and (2)
applies to property which is connected to the provision and management of the
accommodation, land and infrastructure needs of an organ of state, in terms of the 40
Minister’s mandate.
(4) Where only a portion of a land parcel is expropriated, the Minister may
expropriate that portion together with the remainder of the land parcel, provided that—
(a) the owner so requests; and
(b) the Minister is satisfied that due to the partial expropriation the use or potential 45
use of the remainder of such land has become so impaired in consequence of
the expropriation, that it would be just and equitable to the owner to
expropriate it.
(5) When the Minister expropriates property in terms of subsection (2)—
(a) the ownership of the property vests in the relevant organ of state on the date 50
of expropriation;
(b) the date on which the right to possession of the property vests in the relevant
organ of state must be determined in terms of section 9;
(c) the relevant organ of state is liable for the fees, duties and other charges which
would have been payable by that organ of state in terms of any law if it had 55
purchased that property; and
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(d) all costs incurred by the Minister in the performance of his or her functions on
behalf of an organ of state must be refunded by the relevant organ of state
within a reasonable time.

Delegation or assignment of Minister’s powers and duties

4. (1) Subject to subsection (2), the Minister may, either generally or in relation to a 5
particular property or in relation to a particular case, delegate or assign to an official of
the Department any power or duty conferred or imposed on him or her in terms of this
Act.
(2) The Minister may not delegate or assign the powers or duties conferred on him or
her in terms of sections 3, 22(1), 23(1) and 28. 10

CHAPTER 3
INVESTIGATION AND VALUATION OF PROPERTY

Investigation and gathering of information for purposes of expropriation

5. (1) When an expropriating authority is considering the expropriation of property, he

or she must, amongst others, ascertain— 15
(a) the suitability of the property for the purpose for which it is required; and
(b) the existence of registered and unregistered rights in such property and the
impact of such rights on the intended use of the property.
(2) Subject to subsection (3), if the property is land, an expropriating authority may,
in writing— 20
(a) for purposes of subsection (1)(a), authorise a person or persons with the
necessary skills or expertise to—
(i) enter upon the property with the necessary workers, equipment and
vehicles at all reasonable times or as may be agreed to by the owner or
occupier of the property; 25
(ii) survey and determine the area and levels of the land;
(iii) dig or bore on or into the land;
(iv) construct and maintain a measuring weir in any river or stream;
(v) insofar as it may be necessary to gain access to the property, enter upon
and go across another property with the necessary workers, equipment 30
and vehicles; and
(vi) demarcate the boundaries of the property required for the said purpose;
and
(b) authorise a valuer, for purposes of ascertaining the value of the property, to
enter upon the land and any building on such land and to do the necessary 35
inspections and investigations for that purpose.
(3) The person or persons contemplated in subsection (2)(a) and (b) may not enter the
property unless authorised in writing by the expropriating authority to do so, and—
(a) the owner or occupier of the property has consented thereto in writing, after
being informed; 40
(b) the owner of the property has consented in writing to the performance of an
act contemplated in subsection (2)(a); or
(c) in the event of the owner or occupier refusing or failing to grant consent
contemplated in paragraphs (a) or (b), is in possession of a court order
authorising the expropriating authority and such person or persons to enter the 45
land, including any building thereon, for purposes of conducting the
investigations contemplated in subsection (2).
(4) The valuer contemplated in subsection (2)(b) may—
(a) require the owner or occupier of the property to give him or her access to a
document in the possession or under the control of the owner or occupier that 50
the valuer reasonably requires for the purposes of valuing the property;
(b) extract information from or make copies of a document to which he or she is
given access in terms of paragraph (a);
(c) in writing require the owner or occupier of the property to provide him or her,
either in writing or orally, with particulars regarding the property that he or 55
she reasonably requires for the purposes of valuing the property; and
(d) despite the provisions of any law to the contrary, require the municipality in
whose area the land is situated, to provide such valuer—
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(i) insight into building plans of improvements on such land;

(ii) a copy or copies of building plans on such land at the cost of the valuer
or valuers; and
(iii) such information in respect of municipal property rates or other charges,
land use rights including the zoning of the land, availability of 5
engineering services to such land, or such other information with respect
to the land, as is in the possession of the municipality and as may be
reasonably required for the valuation of the said land by the valuer.
(5) An expropriating authority must, if the information has not already been
established at any time before deciding to expropriate property— 10
(a) by written notice call upon the following persons to furnish, in writing within
20 days from delivery of the notice, subject to section 25, the names and
addresses of all known persons holding unregistered rights in the property, as
well as particulars of such rights:
(i) An owner; 15
(ii) a person apparently in charge of the property; and
(iii) any holder of unregistered rights in the property, known to the
expropriating authority;
(b) if the property is land, consult—
(i) the Departments responsible for rural development and land reform, for 20
environmental affairs, for mineral resources and for water and sanitation
and any other organ of state whose functions and responsibilities will be
materially affected by the intended expropriation, for the purposes of
establishing the existence of and the impact of expropriation on rights
therein; and 25
(ii) if applicable, with the municipality as contemplated in section 6.
(6) (a) A person authorised in writing to perform an act contemplated in subsection
(2), must—
(i) provide the owner or occupier of the property with a copy of the said written
authorisation; 30
(ii) at all times whilst performing any such act, be in possession of such written
authority; and
(iii) identify himself or herself to the owner or occupier of the property by means of
an official identification document.
(b) If the person contemplated in paragraph (a) fails to comply with subparagraphs (i), 35
(ii) or (iii) of that paragraph, the owner or occupier of the property may refuse that
person entry to the property or may refuse the performance of an act contemplated in
subsection (2).
(7) If the property in question is damaged as a result of the performance of an act
contemplated in subsection (2), the expropriating authority must repair to a reasonable 40
standard, or compensate the affected person for that damage after delivery of a written
demand by the affected person and without undue delay.
(8) Any legal proceedings arising out of a claim referred to in subsection (7) must
comply with the relevant provisions of the Institution of Legal Proceedings Against
Certain Organs of State Act, 2002 (Act No. 40 of 2002). 45

Consultation with municipality during investigation

6. (1) When contemplating an expropriation of land, an expropriating authority must,

if not already established, in writing, request the municipal manager of the municipality
where the land is situated to inform the expropriating authority of the effect which the
purpose for which the property is being acquired may have on municipal planning. 50
(2) The request contemplated in subsection (1) must include—
(a) a statement that the expropriating authority is contemplating the acquisition of
land;
(b) a full description of the land in question;
(c) details of the purpose for which the land is required; and 55
(d) such other details as the expropriating authority may deem necessary.
(3) The municipal manager must deliver a written response to the request
contemplated in subsection (1) to the expropriating authority within 20 days of receiving
the request or within a reasonable time to be agreed between the expropriating authority
and municipal manager or within the period determined in terms of section 25. 60
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(4) If the expropriating authority is the municipal council of the municipality where
the land is situated, the request contemplated in subsection (1) is not required.

CHAPTER 4
INTENTION TO EXPROPRIATE AND EXPROPRIATION OF PROPERTY

Notice of intention to expropriate 5

7. (1) If an expropriating authority intends to expropriate property, it must—

(a) serve a notice of intention to expropriate on the owner and any known holder
of a right in the property; and
(b) publish the notice of intention to expropriate, in accordance with section
24(2). 10
(2) A notice of intention to expropriate must include—
(a) a statement of the intention to expropriate the property;
(b) a full description of the property;
(c) a short description of the purpose for which the property is required and the
address at which documents setting out the purpose may be inspected and 15
particulars of the purpose may be obtained during business hours;
(d) the reason for the intended expropriation of that particular property;
(e) the intended date of expropriation or, as the case may be, the intended date
from which the property will be used temporarily and the intended period of
such temporary use; 20
(f) the intended date on which the expropriating authority will take possession of
the property;
(g) an invitation to any person who may be affected by the intended expropriation
to lodge with the expropriating authority at a given address within 30 days
after the publication of the said notice, subject to section 25— 25
(i) any objections to the intended expropriation;
(ii) any submissions relating to the intended expropriation;
(iii) a postal address and a facsimile number, if any, to which further
communications to such person may be addressed by the expropriating
authority; and 30
(iv) the choice of official language for the purposes of further written
communication;
(h) a directive to the owner and a holder of a right contemplated in subsection
(1)(a) to deliver or cause to be delivered in writing, within 30 days of service,
subject to section 25— 35
(i) the names and addresses of any holders of unregistered rights and
particulars of such rights, other than those furnished in accordance with
section 5(5)(a) to the extent that such names, addresses and particulars
are within the knowledge of the owner or the holder; and
(ii) a written statement stipulating the amount claimed by him or her as just 40
and equitable compensation: Provided that failure to stipulate the amount
claimed will not affect the owner’s right in section 7(4);
(i) a statement that if a person has an unregistered right in respect of the property
of which the expropriating authority had no knowledge when making an offer
of compensation, the expropriating authority may adjust that offer; and 45
(j) a statement drawing the owner or the holder’s attention to the provisions of
section 27.
(3) If the property contemplated in subsection (1) is land, the expropriating authority
must also deliver a copy of the notice referred to in subsection (1) to—
(a) the Directors-General responsible for rural development and land reform, for 50
environmental affairs, for mineral resources and for water and sanitation, and
the accounting authority of any other organ of state whose functions and
responsibilities will be materially affected by the intended expropriation:
Provided that if the expropriating authority is the executive authority of one of
the departments or organs of state concerned, delivery of such notice to the 55
relevant Director-General or accounting authority is not required; and
(b) the municipal manager of the municipality where the property is situated:
Provided that if the expropriating authority is the relevant municipal council
of that municipality, no such delivery is required.
 10

(4) Subject to section 25, an owner or a holder of an unregistered right responding to

a notice contemplated in subsection (1) must within 30 days of the service of the notice
or, if the notice had not been served on him or her, within 30 days of the publication, as
the case may be, deliver to the expropriating authority a written statement indicating—
(a) the amount claimed by him or her as just and equitable compensation should 5
his or her property be expropriated and furnishing full particulars as to how
the amount is made up;
(b) if the property is land, full particulars of all improvements thereon which, in
the opinion of such owner or holder of a right, affect the value of the land;
(c) if the property is land— 10
(i) which prior to the date of such notice was leased as a whole or in part by
an unregistered lease, the name and address of the lessee, and
accompanied by the lease or a certified copy thereof;
(ii) which prior to the date of such notice was sold by the owner, but transfer
had not yet been effected, the name and address of the buyer, and 15
accompanied by the contract of purchase and sale or a certified copy
thereof; or
(iii) on which a building has been erected which is subject to a builder’s lien
by virtue of a written building contract, the name and address of the
builder, and accompanied by the building contract or a certified copy 20
thereof; and
(d) the address at which the owner or the holder of an unregistered right desires to
receive further documents in connection with the expropriation.
(5) The expropriating authority must acknowledge receipt in writing, consider and
take into account all objections and submissions timeously received before proceeding 25
with an expropriation.
(6) The expropriating authority must, within 20 days of receiving the statement
contemplated in subsection (4), in writing—
(a) inform the relevant owner or relevant holder of an unregistered right whether
the amount of compensation claimed in the statement is accepted; and 30
(b) if the amount of compensation claimed is not accepted, indicate the amount of
compensation offered by the expropriating authority, furnishing full details
and supporting documents in respect thereof.
(7) (a) If no agreement on the amount of compensation payable has been reached
between the expropriating authority and the owner or the holder of a right within 40 days 35
of the expropriating authority receiving the statement contemplated in subsection (4),
the expropriating authority must decide whether or not to proceed with the
expropriation.
(b) If the expropriating authority decides—
(i) to proceed to expropriate, it must serve a notice of expropriation in terms 40
of section 8(1) within a reasonable time;
(ii) to continue with negotiation on compensation in accordance with section
16, it must inform the owner or the holder of a right accordingly in
writing within a reasonable time; or
(iii) not to proceed with the expropriation of the property, it must inform the 45
owner or the holder of a right accordingly in writing within a reasonable
time and must publish a notice in the Gazette of his or her decision not to
proceed in terms of section 24(2).

Notice of expropriation

8. (1) If the expropriating authority decides to expropriate a property, the 50

expropriating authority must cause a notice of expropriation to be served on the owner
and the known holders of unregistered rights, as the case may be, whose rights in the
property are to be expropriated.
(2) The expropriating authority must cause a copy of the notice of expropriation to
be— 55
(a) published in accordance with section 24(2): Provided that if the notice of
expropriation has taken place by publication in terms of section 24(1)(c), the
publication in terms of this paragraph is not required;
(b) delivered to a holder of an unregistered right in the property of whom he or she
is aware and whose rights are not to be expropriated; and 60
 11

(c) if the property is land or a right in land, delivered to—

(i) the municipal manager of the municipality where the property is situated:
Provided that if the expropriating authority is the municipal council the
delivery of such notice is not required;
(ii) the Directors-General responsible for rural development and land 5
reform, for environmental affairs, for mineral resources and for water
and sanitation, and the accounting authority of any other organ of state
whose functions and responsibilities will be materially affected by the
intended expropriation: Provided that if the expropriating authority is the
executive authority of one of the departments or organs of state 10
concerned, the delivery of the notice on the relevant Director-General or
accounting authority is not required;
(iii) a holder of a mortgage bond registered in the Deeds Office in respect of
the property concerned;
(iv) if the property is subject to a contract contemplated in section 7(4)(c)(ii), 15
on the buyer; and
(v) if the building thereon is subject to a lien contemplated in section
7(4)(c)(iii), on the builder.
(3) The notice of expropriation served as contemplated in subsection (1) must
contain— 20
(a) a statement of the expropriation of the property;
(b) the full description of the property, including—
(i) in the case where the expropriation applies to a portion of a land parcel,
the approximate extent of such portion in relation to the whole; or
(ii) in the case where the expropriation applies to a right in land, a 25
description of the approximate position of the right in land on such land;
(c) a short description of the purpose for which the property is required and the
address at which documents setting out that purpose may be inspected and
particulars of that purpose may be obtained during business hours;
(d) the reason for the expropriation of that particular property; 30
(e) the date of expropriation or, as the case may be, the date from which the
property will be used temporarily and also stating the period of such
temporary use;
(f) the date on which the right to possession of the property will pass to the
expropriating authority; 35
(g) except in the case of an urgent expropriation contemplated in section 22, the
amount of compensation offered by the expropriating authority or agreed to by
the expropriating authority and the owner and the holder of an unregistered
right, as the case may be; and
(h) if the amount of compensation is disputed, a statement that the expropriated 40
owner may institute proceedings in a competent court to dispute the amount of
compensation, or request that the expropriating authority commence such
court proceedings, within 180 days of the date of expropriation, which time
period may be extended by the court on good cause shown.
(4) The notice of expropriation served as contemplated in subsection (1) must be 45
accompanied by documents detailing the following:
(a) The date or dates on which the expropriating authority proposes to pay the
compensation and any interest payable in respect thereof in terms of section
13;
(b) in the case where the expropriation applies to a portion of a land parcel, a 50
survey diagram or sketch plan showing the approximate position of such
portion in relation to the whole;
(c) in the case where the expropriation applies to a right in land, a survey diagram
or sketch plan on which the approximate position of the right in land on such
land is indicated, unless the right in land is accurately described without such 55
survey diagram or sketch plan;
(d) an explanation of what the offer of compensation referred to in subsection
(3)(g) comprises of, together with supporting documents detailing how the
offer of compensation was determined;
(e) a directive calling upon the expropriated owner or expropriated holder, as the 60
case may be, to submit, in writing, the names and addresses of all holders of
unregistered rights in the property and particulars of such rights, other than
those furnished in accordance with sections 5(5)(a) and 7(2)(h), if any, to the
 12

extent that such names, addresses and particulars are within the knowledge of
the expropriated owner;
(f) a statement that if a person has an unregistered right in respect of the property
of which the expropriating authority had no knowledge when making the offer
of compensation, the expropriating authority may adjust that offer; 5
(g) a statement informing the expropriated owner or expropriated holder, as the
case may be, that he or she may request a translation of the notice of
expropriation in the official language of his or her choice; and
(h) a statement drawing an expropriated owner, expropriated holder or any other
person’s attention to the provisions of section 27. 10
(5) (a) Rights in a property may be expropriated from different owners and holders of
unregistered rights in the same notice of expropriation.
(b) A separate offer of just and equitable compensation must be stated in respect of
each owner or holder mentioned in the notice of expropriation contemplated in
paragraph (a). 15

Vesting and possession of expropriated property

9. (1) The effect of an expropriation of property is that—

(a) the ownership of the property described in the notice of expropriation vests in
the expropriating authority or in the person on whose behalf the property was
expropriated, as the case may be, on the date of expropriation; 20
(b) all unregistered rights in such property are simultaneously expropriated on the
date of expropriation unless—
(i) the expropriation of those unregistered rights are specifically excluded in
the notice of expropriation; or
(ii) those rights, including permits or permissions, were granted or exist in 25
terms of the provisions of the Mineral and Petroleum Resources
Development Act, 2002 (Act No. 28 of 2002);
(c) in the case of a right to use a property temporarily, the expropriating authority
or the person on whose behalf the property was expropriated may as from the
date of expropriation exercise that right; and 30
(d) the property remains subject to all registered rights in favour of third parties,
with the exception of a mortgage, with which the property was burdened prior
to expropriation, unless or until such registered rights are expropriated from
the holder thereof in terms of this Act.
(2) (a) The expropriating authority, or the person on whose behalf the property was 35
expropriated, must take possession of the expropriated property on the date stated in
terms of section 8(3)(f) or such other date as may be agreed upon with the expropriated
owner or expropriated holder.
(b) The right to possession passes on the relevant date contemplated in paragraph (a)
to the person referred to therein, as the case may be. 40
(3) (a) The expropriated owner or expropriated holder who is in possession of the
property concerned must, from the date of expropriation to the date referred to in
subsection (2) or (4), take all reasonable steps to maintain the property.
(b) If the expropriated owner or expropriated holder wilfully or negligently fails to
maintain the property and as a result thereof the property depreciates in value, the 45
expropriating authority may recover the amount of depreciation from the expropriated
owner or the expropriated holder concerned.
(c) The expropriating authority must compensate the expropriated owner or
expropriated holder, as the case may be, for costs which were necessarily incurred after
the date of expropriation in respect of such maintenance. 50
(4) If the expropriated owner or expropriated holder, as the case may be, desires to
place the expropriating authority in possession of the expropriated property prior to the
date contemplated in section 8(3)(f) and the expropriating authority does not agree to a
date on which the right to possession of the property will pass to it, the expropriated
owner or expropriated holder, as the case may be, may give the expropriating authority 55
notice in writing of not less than 20 days before the date on which the expropriated
owner or expropriated holder wishes to transfer the right to possession of the property,
in which case the right to possession of the property passes to the expropriating authority
on that date.
(5) The expropriated owner or expropriated holder who is in possession of the 60
property concerned, remains entitled to the use of and the income from the expropriated
 13

property, as was enjoyed immediately prior to the date of expropriation, from the date of
expropriation to the date referred to in subsection (2)(b), but remains, during that period,
responsible for the payment of municipal property rates, taxes and other charges, if
applicable, and normal operating costs in respect of the expropriated property as if the
property had not been expropriated. 5

Verification of unregistered rights in expropriated property

10. (1) If, after the date of expropriation, a person claims to have held an unregistered
right in the expropriated property for which that person has not been compensated, the
expropriating authority must request that person to deliver within 30 days of receipt of
the request, subject to section 25, a copy of any written instrument evidencing or giving 10
effect to the unregistered right, if such instrument is in his or her possession or under his
or her control, or any other evidence to substantiate the claim.
(2) If the unregistered right, claimed as contemplated in subsection (1), pertains to the
use of improvements on expropriated land, the evidence required in terms of subsection
(1) must include— 15
(a) a full description of those improvements;
(b) an affidavit or affirmation by the person concerned stating whether those
improvements were erected by that person and if so, whether the materials
used for erecting those improvements were owned by that person; and
(c) the amount claimed as compensation for such unregistered right, together 20
with details or a report, if any, on how the amount is computed.
(3) After receipt of the evidence requested in terms of subsection (1) and if the
unregistered right claimed pertains to land, the expropriating authority may forward that
evidence to the Directors-General responsible for rural development and land reform,
for environmental affairs, for mineral resources and for water and sanitation, and to the 25
accounting authority of any other organ of state, as the case may be, for assistance in the
verification of such claim.
(4) A Director-General or accounting authority referred to in subsection (3) must
submit comments within 30 days of receipt of the request contemplated therein.
(5) (a) The expropriating authority must decide on the claim contemplated in 30
subsection (1) within 20 days of expiry of the period referred to in subsection (4) and
notify the claimant in writing of the decision.
(b) If the expropriating authority accepts the claim contemplated in subsection (1), the
expropriating authority must serve the notice contemplated in section 11(2) on such
claimant. 35
(c) If the expropriating authority does not accept the claim contemplated in subsection
(1), the expropriating authority must inform the claimant accordingly in writing and
must provide reasons for the rejection.
(6) The expropriating authority may require the expropriated owner to compensate a
person who held an unregistered right, if that person was not given notice of the 40
expropriation as provided in this Act, and if the owner ought reasonably to have
identified that person in terms of section 7(2)(h)(i) but did not do so.
(7) The expropriating authority may exercise the power in terms of subsection (6)
only after giving the expropriated owner a reasonable opportunity to make representa-
tions in that regard. 45

Consequences of expropriation of unregistered rights and duties of expropriating

authority

11. (1) An expropriated holder of an unregistered right in a property that has been
expropriated by the operation of section 9(1)(b) is, subject to section 10 and this section,
entitled to compensation. 50
(2) If the expropriating authority becomes aware that an unregistered right in the
expropriated property has been expropriated by the operation of section 9(1)(b) and
becomes aware of the identity of the expropriated holder thereof, the expropriating
authority must serve on that expropriated holder a notice that the unregistered right has
been expropriated, together with a copy of the notice of expropriation served on the 55
expropriated owner in terms of section 8(1).
 14

(3) The notice contemplated in subsection (2) must—

(a) inform the expropriated holder of the date on which the right to possession of
the expropriated property passed to the expropriating authority in terms of
section 9(2) or (4);
(b) contain a statement contemplated in section 8(3)(f), if applicable; and 5
(c) except if this information was furnished in terms of section 10(1), request the
expropriated holder to deliver to the expropriating authority, within 20 days of
receipt of the notice, subject to section 25, a copy of any written instrument in
which the unregistered right is contained, if such instrument is in his or her
possession or under his or her control. 10
(4) When a notice in terms of subsection (2) has been served on the expropriated
holder concerned, this Act applies with the changes required by the context as if such
notice were a notice of expropriation in terms of section 8(1) in respect of such
unregistered right: Provided that if that expropriated holder is a lessee, he or she remains
liable to pay rental to the expropriated owner until the right to possession passes in terms 15
of section 9(2) or (4) and, if applicable, thereafter to the expropriating authority.
(5) If the expropriated owner or expropriated holder knew of the existence of an
unregistered right contemplated in subsection (2) and failed to inform the expropriating
authority of the existence thereof, the expropriated owner or expropriated holder, as the
case may be, is liable to the expropriating authority for any loss incurred in the event of 20
the expropriating authority having to pay compensation for the expropriation of the
unregistered right after the date of payment of compensation to the expropriated owner
or expropriated holder, as the case may be.

CHAPTER 5
COMPENSATION FOR EXPROPRIATION 25

Determination of compensation

12. (1) The amount of compensation to be paid to an expropriated owner or

expropriated holder must be just and equitable reflecting an equitable balance between
the public interest and the interests of the expropriated owner or expropriated holder,
having regard to all relevant circumstances, including— 30
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and
beneficial capital improvement of the property; and 35
(e) the purpose of the expropriation.
(2) In determining the amount of compensation to be paid in terms of this Act, the
expropriating authority must not, unless there are special circumstances in which it
would be just and equitable to do so, take account of—
(a) the fact that the property has been taken without the consent of the 40
expropriated owner or expropriated holder;
(b) the special suitability or usefulness of the property for the purpose for which
it is required by the expropriating authority, if it is unlikely that the property
would have been purchased for that purpose in the open market;
(c) any enhancement in the value of the property, if such enhancement is a 45
consequence of the use of the property in a manner which is unlawful;
(d) improvements made to the property in question after the date on which the
notice of expropriation was served upon the expropriated owner or expropri-
ated holder, as the case may be, except where the improvements were agreed
to in advance by the expropriating authority or where they were undertaken in 50
pursuance of obligations entered into before the date of expropriation;
(e) anything done with the object of obtaining compensation therefor; and
(f) any enhancement or depreciation, before or after the date of service of the
notice of expropriation, in the value of the property in question, which can be
directly attributed to the purpose in connection with which the property was 55
expropriated.
(3) It may be just and equitable for nil compensation to be paid where land is
expropriated in the public interest, having regard to all relevant circumstances, including
but not limited to—
 15

(a) where the land is not being used and the owner’s main purpose is not to
develop the land or use it to generate income, but to benefit from appreciation
of its market value;
(b) where an organ of state holds land that it is not using for its core functions and
is not reasonably likely to require the land for its future activities in that 5
regard, and the organ of state acquired the land for no consideration;
(c) notwithstanding registration of ownership in terms of the Deeds Registries
Act, 1937 (Act No. 47 of 1937), where an owner has abandoned the land by
failing to exercise control over it;
(d) where the market value of the land is equivalent to, or less than, the present 10
value of direct state investment or subsidy in the acquisition and beneficial
capital improvement of the land; and
(e) when the nature or condition of the property poses a health, safety or physical
risk to persons or other property.
(4) When a court or arbitrator determines the amount of compensation in terms of 15
section 23 of the Land Reform (Labour Tenants) Act, 1996 (Act No. 3 of 1996), it may
be just and equitable for nil compensation to be paid, having regard to all relevant
circumstances.

Interest on compensation

13. Interest, at the rate determined from time to time in terms of section 80(1)(b) of the 20
Public Finance Management Act, 1999 (Act No. 1 of 1999), from the date the
expropriating authority, or the person on whose behalf the property was expropriated,
takes possession of the expropriated property, accrues on any outstanding portion of the
amount of compensation payable in accordance with section 12 and becomes payable in
the manner contemplated in section 17: Provided that— 25
(a) if the expropriated owner or expropriated holder fails to comply with section
14(1) within the period referred to in that section, including any extension of
such period, the amount so payable during the period of such failure and for
the purposes of the payment of interest, is not regarded as an outstanding
amount; 30
(b) until the claimant complies with the requirement of section 17(5), the amount
so payable during the period of such failure and for the purposes of the
payment of interest, is not regarded as an outstanding amount;
(c) interest due in terms of this subsection must be regarded as having been paid
on the date on which the amount has been made available or dispatched to the 35
expropriated owner or the expropriated holder concerned by prepaid
registered post, or electronically transferred to his or her account, as the case
may be; and
(d) a payment, utilisation or deposit of an amount in terms of section 17(1), 19(2)
or 20(1) or (2) must be regarded as being a payment to the expropriated owner 40
or an expropriated holder and no interest accrues on any such amount as from
the date on which it has been so paid, utilised or deposited.

Compensation claims

14. (1) An owner or a holder of an unregistered right who receives a notice of

expropriation in terms of section 8(1) must, subject to section 25, within 20 days from 45
the date on which that notice was served on that owner or holder, deliver or cause to be
delivered to the expropriating authority a written statement—
(a) either confirming that the compensation as stipulated in such notice was
agreed to or, if applicable, indicating whether the offer of compensation
stipulated in such notice is accepted; 50
(b) if no compensation was offered, as in the case of an urgent expropriation in
terms of section 22, or if such offer in the notice is not accepted, indicating the
amount claimed by such owner or holder as just and equitable compensation;
(c) furnishing full particulars as to how the amount contemplated in paragraph (b)
is made up, including a copy of a valuation, other professional report or other 55
document that forms the basis of the compensation claimed, if any;
(d) if the property expropriated is land, furnishing full particulars of—
(i) improvements on the land that in the opinion of the owner or the holder
affect the value of that land; and
 16

(ii) all unregistered rights that exist in respect of such land that he or she is
aware of, including the name and address of the holder of such
unregistered right and a copy of any written instrument evidencing or
giving effect to an unregistered right, in his or her possession or under his
or her control; 5
(e) the physical address or postal address, facsimile number and email address, if
any, to or at which further documentation in connection with the expropriation
must be delivered; and
(f) such information and annexing such documentation as may be prescribed by
the Minister in order to facilitate electronic payment of compensation to the 10
expropriated owner or expropriated holder.
(2) If the property expropriated is land—
(a) the expropriated owner must deliver or cause to be delivered to the
expropriating authority, subject to section 25, within 30 days of the
expropriating authority requesting the title deed to such land or, if it is not in 15
his or her possession or under his or her control, written particulars of the
name and address of the person in whose possession or under whose control
the title deed is; and
(b) the person referred to in paragraph (a) in whose possession the title deed may
be, must deliver or cause to be delivered the title deed in question to the 20
expropriating authority within 20 days of the expropriating authority
requesting it, subject to section 25.

Offers of compensation

15. (1) If the expropriating authority does not accept the amount claimed by a
claimant in terms of section 14(1), the expropriating authority must, within 20 days of 25
delivery of the statement contemplated in that section, make an offer of just and
equitable compensation to the claimant in writing, furnishing full particulars of how
such amount is made up and calculated.
(2) The offer of compensation contemplated in subsection (1) must be accompanied
by copies of reports detailing how the offer of compensation was determined if the 30
amount is different from the amount offered by the expropriating authority in terms of
section 8(3).
(3) The provisions of section 21 apply if—
(a) an owner or holder of an unregistered right does not deliver a statement in
terms of section 14(1); or 35
(b) the claimant does not accept the offer of compensation contemplated in
subsection (1), by written reply within 20 days, or within such additional time
as may be permitted in terms of section 25.

Requests for particulars and offers

16. (1) The expropriating authority and the claimant may, from time to time in 40
writing, deliver a request for reasonable particulars regarding the claimant’s claim for
just and equitable compensation or the offer of just and equitable compensation, as the
case may be, and particulars so requested must be furnished within 20 days of such
request.
(2) If the expropriating authority or the claimant fails to comply with a request in 45
terms of subsection (1), the requesting party may, on notice, apply to a court for an order
directing the defaulting party to comply with subsection (1) and the court may make
such an order.
(3) A claim for just and equitable compensation and an offer of just and equitable
compensation remain in force until— 50
(a) such compensation claimed or offered is revised by the claimant or
expropriating authority, as the case may be;
(b) the amount of compensation has been agreed to by the expropriating authority
and the claimant; or
(c) the compensation has been decided or approved by a court. 55
 17

Payment of amount offered as compensation

17. (1) Subject to sections 18, 19 and 20, an expropriated owner or expropriated
holder is entitled to payment of compensation by no later than the date on which the
right to possession passes to the expropriating authority in terms of section 9(2) or (4).
(2) The payment, utilisation or deposit of any amount contemplated in sections 18, 19 5
and 20 does not preclude the determination of an amount by agreement or by a court:
Provided that where the amount so determined is less than the amount paid, the
difference must be refunded to the expropriating authority together with interest at the
rate contemplated in section 13 from the date on which the amount was so paid, utilised
or deposited. 10
(3) Any delay in payment of compensation to the expropriated owner or expropriated
holder by virtue of subsection (2) or any other dispute arising will not prevent the
passing of the right to possession to the expropriating authority in terms of section 9(2)
or (4), unless a court orders otherwise.
(4) If the expropriating authority, expropriated owner or expropriated holder has 15
proposed a later date than the date contemplated in subsection (1) for the payment of
compensation, the party proposing later payment may, in the absence of agreement,
apply to court for an order for payment on such later date, and the court may make an
appropriate order, having regard to all relevant circumstances.
(5) If value-added tax is leviable by a claimant in terms of section 7(1)(a) of the 20
Value-Added Tax Act, 1991 (Act No. 89 of 1991), by virtue of section 8(21) of that Act,
payment of compensation must be made by the expropriating authority only upon
receipt of a tax invoice as required in terms of section 20 of that Act from the claimant,
together with confirmation of the tax compliance status of the claimant by the South
African Revenue Service. 25
(6) The Minister may prescribe the information and documentation to be delivered by
a person to whom compensation or interest is payable in terms of this Act, in order to
facilitate electronic payment thereof.

Property subject to mortgage or deed of sale

18. (1) If property expropriated in terms of this Act was, immediately prior to the date 30
of expropriation, encumbered by a registered mortgage or subject to a deed of sale, the
expropriating authority may not pay out any portion of the compensation money except
to such person and on such terms as may have been agreed upon between the
expropriated owner or expropriated holder and the mortgagee or buyer concerned, as the
case may be, after the claimant has notified the expropriating authority of the agreement. 35
(2) The expropriated owner or expropriated holder or the bond holder or buyer, as the
case may be, must notify the expropriating authority by no later than 30 days from the
date contemplated in section 9(2) or (4), of their agreement and its terms contemplated
in subsection (1), failing which the expropriating authority may deposit the compensa-
tion money with the Master in terms of section 20(2). 40
(3) In the event of a dispute arising out of subsection (1), the expropriating authority
may deposit the compensation money with the Master, and any of the disputing parties
may apply to a court of competent jurisdiction for an order directing the Master to pay
out the compensation money in such manner and on such terms as the court may
determine. 45

Payment of municipal property rates, taxes and other charges out of compensation
money

19. (1) For the purposes of this section, the charges referred to are municipal property
rates, taxes or other charges that must be paid in order for ownership of land to be
transferred by the registrar of deeds to the expropriating authority through registration in 50
the deeds office.
(2) If land which has been expropriated is subject to the charges contemplated in
subsection (1), the municipal manager must, within 30 days of receipt of a copy of the
notice of expropriation in terms of section 8(2)(c)(i), inform the expropriating authority
in writing of such charges, as at the date contemplated in section 9(2) or (4): Provided 55
that if the expropriating authority is the municipal council of the municipality where the
land is situated, the notice is not required.
 18

(3) (a) The expropriating authority must, in writing, notify the expropriated owner or
expropriated holder of any outstanding charges contemplated in subsection (1).
(b) If the expropriated owner or expropriated holder does not dispute the outstanding
charges contemplated in paragraph (a), within 20 days of the notification, the
expropriating authority may utilise as much of the compensation money in question as 5
is necessary for the payment, on behalf of the expropriated owner or expropriated
holder, of any outstanding charges contemplated in subsection (1).
(4) If the municipal manager fails to inform the expropriating authority of the
outstanding charges contemplated in subsection (1) within the period of 30 days as
contemplated in subsection (2), the expropriating authority may pay the compensation 10
to the expropriated owner or expropriated holder without regard to the outstanding
municipal property rates or other charges, and in such an event and despite the
provisions of any law to the contrary—
(a) the Registrar of Deeds must register the transfer of the expropriated property;
(b) the expropriating authority or the person on whose behalf the property was 15
expropriated, as the case may be, is not liable to the municipality concerned
before or after such registration for the outstanding municipal property rates
or other charges; and
(c) the expropriated owner or expropriated holder, as the case may be, continues
to be liable to the municipality for the outstanding rates and charges calculated 20
up to the date of possession, notwithstanding the registration of the
expropriated property in the name of the expropriating authority or person on
whose behalf the property was expropriated, as the case may be.

Deposit of compensation money with Master

20. (1) The expropriating authority must deposit the amount of compensation payable 25
in terms of this Act with the Master after which the expropriating authority ceases to be
liable in respect of that amount—
(a) if a property expropriated under this Act was left in terms of a will or
testament to an undetermined beneficiary or beneficiaries;
(b) if compensation is payable in terms of this Act to a person whose address is 30
not readily ascertainable or who, unless otherwise agreed, fails to supply the
prescribed information and documentation for electronic payment within 20
days of being given written notice to do so; or
(c) if compensation is payable and the expropriating authority, after reasonable
endeavours, is unable to determine to whom it must be paid. 35
(2) In the event of a dispute or doubt as to the person who is entitled to receive
compensation payable in terms of this Act, or in the event that an interdict prevents the
expropriating authority from paying compensation to that person, the expropriating
authority may deposit the amount of compensation with the Master.
(3) Any money received by the Master in terms of subsection (1) or (2) must be paid 40
into the guardian’s fund referred to in section 86 of the Administration of Estates Act,
1965 (Act No. 66 of 1965), for the benefit of the persons who are or may become entitled
thereto and bear interest at the interest rate determined in terms of section 80(1)(b) of the
Public Finance Management Act, 1999 (Act No. 1 of 1999).
(4) A court of competent jurisdiction may make an order which it may deem expedient 45
in respect of money received by the Master in terms of subsection (1) or (2).

CHAPTER 6
MEDIATION AND DETERMINATION BY COURT

Mediation and determination by court

21. (1) If the expropriating authority and expropriated owner or expropriated holder 50
do not agree on the amount of compensation, they may attempt to settle the dispute by
mediation, which must be initiated and finalised without undue delay by either party.
(2) If the expropriating authority and disputing party do not settle the dispute by
consensus or mediation, either party may, within 180 days of the date of the notice of
expropriation, institute proceedings in a competent court for the court to decide or 55
approve the amount of just and equitable compensation.
(3) The disputing party may, instead of instituting such proceedings himself or
herself, within 90 days of the date of the notice of expropriation request the
 19

expropriating authority, in writing, to institute such proceedings and the expropriating

authority must institute such proceedings within 180 days of receiving such request.
(4) A court may extend the time periods in subsections (2) and (3) on good cause
shown and if the interests of justice so require.
(5) The onus or burden of proof is not affected by whether it is the expropriating 5
authority or the disputing party which institutes the proceedings referred to in this
section.
(6) Subsection (2) does not preclude a person from approaching a court on any matter
relating to the application of this Act.
(7) Where a court finds that a provision of this Act has not been complied with, it must 10
make such order as it considers just and equitable, having regard to all relevant
circumstances, including—
(a) the nature and extent of the interest of the person who has challenged the
conduct in question;
(b) the materiality of the non-compliance; 15
(c) the stage which has been reached in the expropriation process; and
(d) the interests of other persons which may be affected by the relief which is
ordered.
(8) A dispute on the amount of compensation alone does not preclude the operation of
section 9. 20

CHAPTER 7
URGENT EXPROPRIATION

Urgent expropriation

22. (1) An expropriating authority may, if a property is required on an urgent basis,

exercise a right to use property temporarily for so long as it is urgently required for a 25
period not exceeding 12 months.
(2) The power referred to in subsection (1) may only be exercised if suitable property
held by the national, provincial or local government is not available under the following
circumstances:
(a) In the case of a disaster as defined in the Disaster Management Act, 2002 (Act 30
No. 57 of 2002); or
(b) where a court grants an order that an expropriating authority is entitled to use
the provisions of this section due to—
(i) urgent and exceptional circumstances that justify action under subsection
(1); 35
(ii) real and imminent danger to human life or substantial injury or damage
to property; or
(iii) any other ground which in the view of the court justifies action under
subsection (1).
(3) Should an expropriating authority exercise the power referred to in subsection (1), 40
the expropriating authority will be exempted from compliance with the provisions of
sections 5(1), 6(1) and 7(1).
(4) The owner or the holder of an unregistered right whose right in property has been
taken for temporary use in terms of this section is entitled to just and equitable
compensation as calculated, determined and paid in terms of this Act. 45
(5) The expropriating authority must make a written offer of compensation to the
expropriated owner or expropriated holder of an unregistered right within 30 days from
the date on which the notice to use the property temporarily was given, and payment
must be made within a reasonable time thereafter: Provided that in the event of any
dispute, the provisions of section 21 apply. 50
(6) If the property taken for temporary use in terms of this section is damaged during
the use of the property, the expropriating authority must repair such damage or
compensate the owner or the holder of an unregistered right concerned for the damage.
(7) (a) If an expropriating authority wishes to extend the period of temporary usage
beyond 12 months and the owner or the holder of an unregistered right whose right in 55
property has been taken does not agree thereto, the expropriating authority may
approach the court for an extension of the period.
(b) The court may, on sufficient cause shown by the expropriating authority, extend
the period of temporary usage.
 20

(c) The period of extension may not exceed 18 months from the date the property was
taken for temporary use in terms of subsection (1).
(8) If the court refuses to grant an extension as applied for in terms of subsection (7),
the expropriating authority must vacate the property on the expiry of the period of
temporary use or on the date agreed to by the parties or determined by the court. 5
(9) An expropriating authority may at any time during the temporary use of the
property, commence with the expropriation of the property and must comply with all
relevant provisions of this Act.

CHAPTER 8
WITHDRAWAL OF EXPROPRIATION 10

Withdrawal of expropriation

23. (1) (a) Notwithstanding anything to the contrary contained in any law, the
expropriating authority may withdraw any expropriation from a date mentioned in a
notice of withdrawal, if the withdrawal of that expropriation is in the public interest, or
the reason for which the property was expropriated is no longer applicable. 15
(b) The notice of withdrawal contemplated in paragraph (a) must be served on every
person on whom the notice of expropriation in question was served.
(2) An expropriation may not be withdrawn—
(a) after the expiration of three months from the date of expropriation, except
with the written consent of the expropriated owner and all expropriated 20
holders or, in the absence of a written consent, if a court, on application by the
expropriating authority, authorises the withdrawal on the ground that it is in
the public interest that the expropriation be withdrawn;
(b) if, where the expropriated property is land, the property has already been
registered in the name of the expropriating authority in consequence of the 25
expropriation; or
(c) if the expropriating authority has already paid compensation in connection
with such expropriation, unless the agreement in writing of every person to
whom the compensation has been paid is obtained.
(3) If an expropriation of property is withdrawn— 30
(a) ownership of the property concerned again vests, from the date contemplated
in subsection (1), in the owner from whom it was expropriated, and any
mortgage or other rights discharged or expropriated in connection with or as
a consequence of the expropriation are fully revived;
(b) the Registrar of Deeds or the registrar of any other office at which such 35
expropriated right was registered or recorded must, on receipt of a copy of the
notice of withdrawal, cancel any endorsement made in connection with the
expropriation in his or her registers and on the title deed in question; and
(c) the expropriating authority is liable for all reasonable costs and damages
incurred or suffered by a claimant as a result of such withdrawal. 40

CHAPTER 9
RELATED MATTERS

Service and publication of documents and language used therein

24. (1) Whenever a notice in terms of sections 7(1), 8(1),11(2) or 19(3)(a) or a notice
of withdrawal in terms of section 23(1)(b) is required to be served in terms of this Act, 45
the original or a certified copy thereof must—
(a) be delivered or tendered to the addressee personally at his or her residential
address, place of work, place of business or at such address or place as the
expropriating authority and the addressee may, in writing, agree upon;
(b) be posted by pre-paid registered post to the postal address of the addressee; 50
(c) be published in the manner contemplated in subsection (2)—
(i) if the whereabouts of the person concerned are unknown to the
expropriating authority and is not readily ascertainable, after taking
reasonable steps; or
 21

(ii) in the case of fidei commissaries in respect of a property which is subject

to a fidei commissum and it is not known to the expropriating authority
who all the fidei commissaries are or will be; or
(d) if none of the modes of service set out in paragraphs (a) to (c) is practicable
under the circumstances, be served in accordance with such directions as the 5
court, on application, may direct.
(2) Whenever publication of a notice in terms of section 7(1) or (7)(b)(iii), a notice of
expropriation or other document is required by this Act, publication must take place—
(a) in English and in any other official language commonly used in the area where
the property is situated, once in the Gazette and, simultaneously therewith or 10
not more than one week thereafter, once in two widely circulated and
accessible newspapers of different languages circulating in the area in which
the property is situated;
(b) if the property is land, by the display of the notice in the languages referred to
in paragraph (a), on such land in a conspicuous place, from not later than the 15
date of publication in the Gazette contemplated in paragraph (a); and
(c) if the expropriating authority deems it necessary in the circumstances, by the
advertising in such languages as may be appropriate on television or radio,
transmitting to the area where the property is situated in the languages
commonly used in that area, the contents of the advertisement to adhere as 20
closely as is practicable to the contents of the notice or document so
advertised.
(3) Whenever a document must or may be delivered in terms of this Act, it must take
place by delivering—
(a) to the owner and holder of an unregistered right in a property known to the 25
expropriating authority, at the address appointed in the notice in terms of
section 7(1), the notice of expropriation, the notice in terms of section 11(2) or
other document, as the case may be; and
(b) to any owner, holder of an unregistered right, person who has lodged an
objection or submission contemplated in section 7(2)(g), expropriated owner 30
and expropriated holder, at the address or facsimile number appointed by such
person in terms of this Act, or in the absence thereof—
(i) at an address supplied in respect of such person in terms of this Act;
(ii) at the residential or postal address of such person, if known to the
expropriating authority; or 35
(iii) if no address of such person is known to or readily ascertainable by the
expropriating authority, by publication in the manner contemplated in
subsection (2)(a).
(4) The delivery contemplated in subsection (3) must take place at the address in
question either by— 40
(a) hand;
(b) facsimile transmission: Provided that a confirmatory copy of the document is
sent by ordinary mail or by any other suitable method within one day of such
transmission; or
(c) registered post. 45
(5) All documents must be in English and if an addressee has prior to a
communication expressed in writing a preference for another official language, also in
that preferred other official language.
(6) Every addressee who has received a written communication from the expropriat-
ing authority is entitled to request, in writing, a translation of that communication into 50
the official language indicated in the request.

Extension of time

25. Wherever a period is mentioned within which something must be done in terms of
this Act, the expropriating authority may, on written request and good cause shown by
the relevant owner or relevant holder of a right in property or other interested or affected 55
person, as the case may be, from time to time extend that period for a further period or
periods as may be reasonable in the circumstances.
 22

Expropriation register

26. (1) The Director-General must ensure that a register of all expropriations that are
intended, effected and withdrawn, and of decisions not to proceed with a contemplated
expropriation by all expropriating authorities, is opened, maintained and accessible to
the public. 5
(2) All expropriating authorities must deliver to the Department a copy of any notice
of an intended expropriation, expropriation and withdrawal of expropriation, and of any
decision not to proceed with an intended expropriation, within 20 days of the service or
delivery of such notices.

Civil offences and fines 10

27. (1) A person commits a breach of this Act if that person fails to—
(a) comply with a directive by the expropriating authority in terms of section
7(2)(h)(i);
(b) deliver to the expropriating authority a statement contemplated in section
7(4)(c)(i), (ii) or (iii); or 15
(c) provide the information contemplated in section 8(4)(e).
(2) A civil court may impose a fine up to a maximum prescribed amount, in favour of
the National Revenue Fund, on a person referred to in subsection (1), upon application
by the expropriating authority brought on notice to the affected person.
(3) The rules of the relevant court apply to the application referred to in subsection 20
(2).
(4) A breach referred to in subsection (1) is not a criminal offence.
(5) A person who wilfully furnishes false or misleading information in any written
instrument which he or she by virtue of this Act delivers or causes to be delivered to an
expropriating authority, is guilty of an offence and liable on conviction to be punished as 25
if he or she had been convicted of fraud.

Regulations

28. (1) The Minister may, by notice in the Gazette, make regulations regarding—
(a) any matter that may or must be prescribed in terms of this Act;
(b) any ancillary or incidental administrative or procedural matter that may be 30
necessary for the proper implementation or administration of this Act;
(c) any notice or document required in terms of this Act; and
(d) any maximum fine imposed by a competent court in terms of this Act.
(2) (a) The Minister must, before making any regulations contemplated in subsection
(1), publish the draft regulations for public comment. 35
(b) The period for submitting comments must be at least 20 days from the date of
publication of the draft regulations.

Regulations, legal documents and steps valid under certain circumstances

29. (1) A regulation or notice, or an authorisation, document, made or issued in terms

of this Act— 40
(a) but which does not comply with any procedural requirement of this Act, is
nevertheless valid if the non-compliance is not material and does not prejudice
any person; and
(b) may be amended or replaced without following a procedural requirement of
this Act if— 45
(i) the purpose is to correct an error; and
(ii) the correction does not change the rights and duties of any person
materially.
(2) The failure to take any steps in terms of this Act as a prerequisite for any decision
or action does not invalidate the decision or action if the failure— 50
(a) is not material;
(b) does not prejudice any person; and
(c) is not procedurally unfair.
 23

Interpretation of other laws dealing with expropriation

30. (1) Subject to section 2, any law dealing with expropriation of property that was
in force immediately before the date on which this Act came into operation, must be
interpreted in a manner consistent with this Act, and for that purpose any reference in
any such law to— 5
(a) a functionary authorised to expropriate property, must be construed as a
reference to an expropriating authority; and
(b) compensation as provided for in sections 12 and 13 of the Expropriation Act,
1975 (Act No. 63 of 1975), must be construed as a reference to compensation
contemplated in the provisions of section 25(3) of the Constitution and the 10
provisions of this Act.
(2) In the event of a conflict between this Act and any other law contemplated in
subsection (1) in relation to matters dealt with in this Act, this Act prevails.

Repeal

31. The Expropriation Act, 1975 (Act No. 63 of 1975), is hereby repealed. 15

Transitional arrangements and savings

32. (1) This Act does not apply to any expropriation initiated through delivery of a
notice of expropriation prior to the date of commencement of this Act or to any
consequences of any expropriation initiated prior to the date of commencement of this
Act. 20
(2) Any proceedings for the determination of compensation in consequence of an
expropriation contemplated in paragraph (a) must be instituted, or if already instituted
must be concluded, as if this Act had not been passed: Provided that the parties
concerned may agree to the application of this Act to such expropriation or proceedings
in which case the relevant provisions of this Act apply to the extent agreed upon between 25
the parties as if it were an expropriation or proceedings for the determination of
compensation in terms of this Act.

Short title and commencement

33. (1) This Act is called the Expropriation Act, 2020, and comes into operation on a
date determined by the President by proclamation in the Gazette. 30
(2) Different dates may be determined in respect of different provisions of this Act.
 24

MEMORANDUM ON THE OBJECTS OF THE

EXPROPRIATION BILL, 2020

1. Background

1.1 The Constitution of the Republic of South Africa, 1996 (‘‘Constitution’’),

recognises expropriation as an essential mechanism for the State to acquire
another’s property for a public purpose or in the public interest, subject to just
and equitable compensation being paid.

1.2 The Expropriation Act, 1975 (Act No. 63 of 1975) (‘‘Expropriation Act’’),
predates the expropriation mechanism provided for in section 25(2) of the
Constitution. The Constitution is the supreme law of the Republic, legislation
or conduct inconsistent with it is invalid, and the obligations it imposes must
be fulfilled. The peremptory terms of section 2 of the Constitution strengthens
the case for the redrafting of the Expropriation Act to ensure consistency with
the spirit and provisions of the Constitution. The provisions of the
Constitution alluded to are: The right to equality (section 9), property rights
(section 25), access to information (section 32), and lawful, reasonable and
procedurally fair administrative action (section 33).

1.3 Given the array of authorities within all spheres of government which have the
power to expropriate property through various pieces of legislation, there is a
need to ensure uniformity in the way organs of state undertake expropriation.
The Expropriation Bill, 2020 (‘‘Bill’’) seeks to ensure consistency with the
Constitution and uniformity of procedure of all expropriations without
interfering with the powers of expropriating authorities.

2. Objects of Bill

The Bill seeks to repeal the Expropriation Act and to provide a common framework
in line with the Constitution to guide the processes and procedures for
expropriation of property by organs of state and to provide for instances where
expropriation with nil compensation may be just and equitable.

3. Summary of Bill

3.1 Chapter 1: Definitions and application of Act

Clauses 1 and 2 contain definitions and deal with the application of the
proposed legislation, determining that an expropriating authority may not
expropriate property arbitrarily or for a purpose other than a public purpose or
in the public interest. The expropriating authority is obliged to enter into
negotiations with the owner of property required for such purposes and
attempt to reach an agreement on the acquisition of the property before
resorting to expropriation, except in circumstances where the right to use
property temporarily is taken on an urgent basis (clause 22). An expropriating
authority may not expropriate the property of a state-owned corporation or
state-owned entity without the concurrence of the executive authority
responsible for that corporation or entity. The Bill proposes that no property
may be expropriated unless the prescribed procedures have been followed.

3.2 Chapter 2: Powers of Minister of Public Works and Infrastructure to

expropriate

Clauses 3 and 4 grant a general power to expropriate to the Minister of Public

Works and Infrastructure (‘‘Minister’’). The Minister is empowered to
expropriate property for purposes connected with the execution of his or her
mandate, which includes the provision and management of the accommoda-
tion, land and infrastructure needs of organs of state. The Minister may
delegate or assign his or her powers and duties contained in the Bill to an
official of the Department of Public Works and Infrastructure (‘‘Depart-
ment’’), except for the power to—
 25

(a) expropriate;
(b) expropriate urgently on a temporary basis;
(c) withdraw an expropriation; or
(d) make regulations.

3.3 Chapter 3: Investigation and valuation of property

3.3.1 Clauses 5 and 6 deal with the pre-expropriation phase and detail
various procedures to be followed by an expropriating authority prior
to an expropriation. These procedures are used to ascertain the
suitability of the property for the purpose for which it is required and
to gather information on the existence of registered and unregistered
rights in such property and the impact of such rights on the intended
use thereof. It is also proposed in the Bill that the expropriating
authority may authorise persons to enter the property with a view to
surveying and valuating the property, amongst other things. Provision
is also made for a person to claim compensation should the property
concerned be damaged as a consequence of the evaluation of the
property.

3.3.2 In gathering the information, the expropriating authority is obliged to

consult with other organs of state that may be affected by the
expropriation. The Departments responsible for rural development
and land reform, for mineral resources and for water affairs and
sanitation and the relevant municipality must be consulted to ascertain
the impact of the proposed expropriation on the rights administered by
those Departments and in the case of municipalities, to ascertain the
effect which an expropriation will have on spatial development and
engineering services.

3.4 Chapter 4: Intention to expropriate and expropriation of property

3.4.1 Clauses 7 to 11 deal with the post-investigation phase. At this stage of

an expropriation, the expropriating authority would have gathered all
information, consulted with all parties affected by the expropriation
and decided to expropriate. The expropriating authority must serve all
the affected parties known to him or her with a notice of intention to
expropriate. This notice will amongst other things include the
description of the property, the purpose for which the property will be
expropriated, the reason for the expropriation and a directive to the
owner and holders of rights to furnish particulars of holders of
unregistered rights known to them. The notice must also call upon the
owner or a holder of a right to provide a written statement stipulating
the amount claimed as just and equitable compensation. However,
failure to stipulate the amount claimed by him or her will not affect the
owner’s rights contained in clause 7(4). Rights must be expropriated
individually and separate notices must be given to separate right
holders. All affected parties are given the opportunity to submit written
objections within a stipulated period. The expropriating authority must
consider all objections and submissions timeously before proceeding
with an expropriation. If no agreement on the amount of compensation
payable can be reached between the expropriating authority and the
owner or holder of a right within a specified period, the expropriating
authority must take the decision whether or not to expropriate.
Provision is made for further negotiation on compensation with the
owner or holder of a right.

3.4.2 Clause 8 deals with the notice of expropriation. If the expropriating

authority decides to expropriate a property, the expropriating authority
must cause a notice of expropriation to be served on the relevant
owner and holder of an unregistered right and on all affected parties of
whom the expropriating authority is aware. Extensive provision is
made regarding the contents of the notice of expropriation. It must,
 26

amongst others, contain a full description of the property, a description

of the purpose for which the property is expropriated, the reason for
the expropriation, the date of expropriation and the amount of
compensation offered or agreed to. The notice must furthermore be
accompanied by documents setting out the date of payment of the
compensation, indicating the property by way of a survey diagram or
sketch plan, an explanation of what the offer of compensation
comprises of, as well as the further documentation required in terms of
clause 8(4). An expropriating authority is further obliged to inform the
owner of the right to approach a competent court including conditions
applicable to that right.

3.4.3 Clause 9 states the effect expropriation will have on the property
concerned, which includes that ownership of the property vests in the
expropriating authority and that all unregistered rights in the property
are expropriated, subject to certain exceptions. Furthermore, the
expropriating authority, or the person on whose behalf the property
was expropriated, must take possession of the expropriated property
on the date stated in terms of clause 8(3)(f) or such other date as may
be agreed upon with the expropriated owner or expropriated holder.
Until the date of possession, the expropriated owner or expropriated
holder who is still in possession of the property must take care of and
maintain the property. The expropriated owner or expropriated holder
must be compensated for costs necessarily incurred for the mainte-
nance of the property.

3.4.4 Clause 10 deals with claims made in respect of unregistered rights in

property, which property has already been expropriated. Provision is
made for the submission of evidence to the expropriating authority and
for the duties of the expropriating authority in this regard. A further
obligation is imposed on the expropriated owner to compensate a
person who held an unregistered right if that person was not given
notice of the expropriation and the owner ought to have reasonably
identified that person. The expropriated owner affected by this
situation is entitled to be given a reasonable opportunity to make
representations to the expropriating authority. In terms of clause 11, an
expropriated holder of an unregistered right in property that has been
expropriated is entitled to compensation, subject to certain provisions.

3.5 Chapter 5: Compensation for expropriation

3.5.1 Clauses 12 to 20 deal with the determination and payment of

compensation to persons whose property or rights are expropriated.
Section 25(3) of the Constitution determines that the amount of
compensation and the time and manner of payment must be just and
equitable, reflecting an equitable balance between the public interest
and the interests of those affected, having regard to all relevant
circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition
and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.

3.5.2 Provision is made in clause 12 for factors which must not be taken into
account when the amount of compensation is determined. These are—
(a) the fact that the property has been taken without the consent of
the expropriated owner or expropriated holder;
(b) the special suitability or usefulness of the property for the
purpose for which it is required by the expropriating authority, if
it is unlikely that the property would have been purchased for that
purpose in the open market;
 27

(c) any enhancement in the value of the property, if such enhance-

ment is a consequence of the use of the property in a manner
which is unlawful;
(d) improvements made on the property after the date on which the
notice of expropriation was served upon the expropriated owner
and expropriated holder, except where the improvements were
agreed on or were undertaken in pursuance of obligations entered
into before the date of expropriation;
(e) anything done with the object of obtaining compensation
therefor; and
(f) any enhancement or depreciation, before or after the date of
service of the notice of expropriation, in the value of the property
in question, which can be directly attributed to the purpose in
connection with which the property was expropriated.

3.5.3 Clause 12 further provides for situations wherein it may be just and
equitable and in the public interest to pay nil compensation for land
earmarked for expropriation. These instances include the following:
(a) Where the land is not being used and the owner’s main purpose is
not to develop the land or use it to generate income, but to benefit
from appreciation of its market value;
(b) where an organ of state holds land that it is not using for its core
functions and is not reasonably likely to need the land for its
future activities in that regard, and the organ of state acquired the
land for no consideration;
(c) notwithstanding registration of ownership in terms of the Deeds
Registries Act, 1937 (Act No. 47 of 1937), where an owner has
abandoned land by failing to exercise control over it;
(d) where the market value of the land is equivalent to, or less than,
the present value of direct state investment or subsidy in the
acquisition and beneficial capital improvement of the land; and
(e) when the nature or condition of the property poses a health, safety
or physical risk to persons or other property.

3.5.4 When a court or arbitrator determines the amount of compensation in

terms of section 23 of the Land Reform (Labour Tenants) Act, 1996
(Act No. 3 of 1996), it may be just and equitable for no compensation
to be paid having regard to all circumstances.

3.5.5 Clause 13 makes provision for the payment of interest on any

outstanding amount of compensation once the expropriating authority
has taken possession.

3.5.6 Clause 14 deals with certain obligations of an owner or holder of an

unregistered right who receives a notice of expropriation in terms of
clause 8(1). The owner must within 20 days of receiving the notice
indicate whether he or she agrees to or rejects the amount of
compensation payable. If the offer is rejected, the owner or holder
must indicate the amount he or she claims as just and equitable
compensation. Provision is made for particulars which the owner or
holder must furnish. Provision is also made for the expropriating
authority to extend the period of 20 days in terms of clause 25.

3.5.7 Clause 15 provides that if the expropriating authority rejects the

amount claimed by a claimant, the executing authority must within 20
days of delivery of the statement containing the amount claimed, make
an offer of just and equitable compensation and furnish full particulars
of how the amount is made up and calculated.

3.5.8 Clause 16 provides for certain particulars the expropriating authority

or claimant may request regarding claims and offers.
 28

3.5.9 Clause 17 deals with the manner in which the payment of the amount
offered as compensation must be made.

3.5.10 Clause 18 deals with instances where expropriated property is subject

to a mortgage or a deed of sale and provision is made as to whom
payment of the amount of compensation must be paid.

3.5.11 Provision is made in clause 19 for the payment, from the compensa-
tion money, of property rates, taxes and other charges relating to the
property concerned by the expropriating authority. Should a municipal
manager fail to inform the expropriating authority of outstanding
municipal property rates, taxes or other charges, the expropriating
authority may pay the compensation to the expropriated owner or
expropriated holder without regard to outstanding municipal property
rates, taxes or other charges.

3.5.12 Clause 20 makes provision for instances where the amount of

compensation may be deposited with the Master of the High Court.

3.6 Chapter 6: Mediation and determination by court

Clause 21 provides that in the absence of agreement on compensation, either

party may institute legal proceedings in a competent court within a stipulated
period. The disputing party has the option to request the expropriating
authority, in writing, to institute legal proceedings. Both the request by the
disputing party and the institution of the proceedings by the expropriating
authority must take place within a stipulated time period.

3.7 Chapter 7: Urgent expropriation

Clause 22 deals with urgent expropriations. In the case of a disaster, urgent

and exceptional circumstances, real and imminent danger, or if a court so
orders, an expropriating authority may exercise a right to use property
temporarily for a period not exceeding 12 months. The expropriating authority
is exempted from certain provisions of the envisaged Act should it exercise
the right to take property temporarily on an urgent basis. The expropriating
authority must within 30 days of the notice to use the property temporarily
make a written offer of compensation to the owner or holder. Provision is
made for compensation in the case of damage to the property concerned and
for the extension of the period of 12 months by order of court.

3.8 Chapter 8: Withdrawal of expropriation

Clause 23 authorises an expropriating authority to withdraw an expropriation

if the withdrawal is in the public interest or the reason for which the property
was expropriated is no longer applicable. Under certain specified instances, an
expropriating authority may not withdraw the expropriation. Provision is also
made for the effect a withdrawal of an expropriation has on ownership of the
property. Provision is made that the expropriating authority will be liable for
all reasonable costs and damages incurred or suffered by the claimant as a
result of the withdrawal.

3.9 Chapter 9: Related matters

3.9.1 Clauses 24 to 32 deal with—

(a) service and publication of documents;
(b) extension of time allowed for certain actions;
(c) a register of all expropriations;
(d) offences and other related matters;
(e) the power of the Minister to make regulations;
 29

(f) validity of regulations, legal documents and steps under certain

circumstances;
(g) impact on existing legislation;
(h) repeal of the Expropriation Act;
(i) transitional arrangements and savings; and
(j) the short title and commencement of the envisaged Expropriation
Act, 2020.

3.9.2 Provision is made for the service of documents and the publication of
expropriation notices and related documentation which includes the
use of radio and television under specific circumstances.

3.9.3 The Department will be required to establish and maintain a register of

all expropriations, which register must be accessible to the public. All
expropriating authorities will be obliged to provide the Department
with copies of all notices of—
(a) contemplated expropriations;
(b) decisions not to proceed with contemplated expropriations;
(c) expropriations; and
(d) withdrawal of expropriations.

3.9.4 Chapter 9 also deals with offences relating to—

(a) failure to provide information or documentation as prescribed in
the Bill; and
(b) wilful furnishing of false or misleading information.

3.9.5 As far as existing laws dealing with expropriation are concerned,

clause 30 proposes that those laws continue to apply to the extent that
they are consistent with the provisions of the envisaged Act. In the
event of a conflict between the envisaged Act and such existing laws,
the envisaged Act will prevail.

3.9.6 The Bill seeks to repeal the Expropriation Act.

3.9.7 Finally, provision is made for certain transitional arrangements and

savings. The envisaged Act will not apply to expropriations initiated
prior to the commencement of the Act. Proceedings instituted before
the commencement of the envisaged Act for compensation resulting
from expropriation must be concluded as if the envisaged Act had not
been passed. However, the parties may agree that the provisions of the
envisaged Act will apply.

4. Bodies consulted

In the development of the Bill, the Department sought advice from various
prominent legal practitioners on specific constitutional and practical matters
relating to expropriation. The Bill was initially published in the Gazette for
comment on 21 December 2018. Wide-ranging submissions were received
from organised agriculture; commerce and industry; the financial sector; the
legal fraternity; the property industry; professional associations; public
entities; government departments and members of the public.

5. Implications for provinces

The Bill does not seek to interfere with the powers of expropriation conferred
by specific legislation but prescribes uniform procedures to be followed by all
expropriating authorities when exercising their powers.

6. Financial implications for State

6.1 Section 25(2) and (3) of the Constitution obligates the State to pay persons
affected by expropriation compensation that is just and equitable, reflecting an
 30

equitable balance between the public interest and the interests of those
affected, having regard to all relevant circumstances.

6.2 The implementation of the uniform procedures for expropriation should not
have a significant impact on the staff structures of expropriating authorities.

6.3 Implementation of the envisaged Act will have financial implications for the
Department in that it will—
(a) establish capacity to provide guidance on the uniform procedures to all
expropriating authorities; and
(b) be responsible for the development and maintenance of the expropriation
register, which will require the development of a database accessible to
the public and dedicated personnel.

7. Parliamentary procedure

7.1 Sections 74 to 77 of the Constitution contain the procedures that have to be

followed in respect of different types of Bills introduced in Parliament. It is
important to determine which section applies— colloquially referred to as the
tagging of the Bill in order to ensure that the Bill is passed in a constitutionally
sound manner. Sections 74 to 77 deal with the following:

• section 74: Bills amending the Constitution;

• section 75: Ordinary Bills not affecting provinces;
• section 76: Ordinary Bills affecting provinces; and
• section 77: Money Bills.

7.2 The State Law Advisers have considered the provisions of the Bill and are of
the view that sections 74, 75 and 77 do not apply in respect of the Bill, and that
the Bill must be dealt with in accordance with the procedure prescribed by
section 76(3) of the Constitution since the Bill in substantial measure falls
within several of the areas of concurrent national and provincial legislative
competence listed in Schedule 4 to the Constitution.1

7.3 This view is based on the application of the Tongoane judgment2 of the
Constitutional Court and the views held therein regarding the tagging of Bills.

7.4 In the Tongoane judgment the Constitutional Court stated that what matters
for the purposes of tagging is not the substance or the true purpose and effect
of the Bill, but rather, whether the provisions of the Bill in substantial measure
fall within a functional area listed in Schedule 4. The Court furthermore stated
that the tagging test focuses on all the provisions of the Bill in order to
determine the extent to which those provisions substantially affect functional
areas listed in Schedule 4, and not whether or not any of the provisions are
incidental to the Bill’s substance.3 The Court furthermore stated that the
process of tagging of a Bill ‘‘. . . is concerned with the question of how the Bill
should be considered by the provinces and in the NCOP, and how a Bill must
be considered by the provincial legislatures depends on whether it affects the

1. The areas identified are: Administration of indigenous forests; Agriculture; Airports other than
international and national airports; Consumer protection; Disaster management; Education at all levels,
excluding tertiary education ; Environment; Health services; Housing; Industrial promotion; Nature
conservation, excluding national parks, national botanical gardens and marine resources; Police to the
extent that the provisions of Chapter 11 of the Constitution confer upon the provincial legislatures
legislative competence; Population development; Provincial public enterprises in respect of the
functional areas in this Schedule and Schedule 5; Public transport; Public works only in respect of the
needs of provincial government departments in the discharge of their responsibilities to administer
functions specifically assigned to them in terms of the Constitution or any other law; Regional planning
and development; Road traffic regulation; Soil conservation; Urban and rural development; Welfare
services.
2. Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC) (2010
(8) BCLR 741; [2010] ZACC 10): Par 58.
3. Tongoane at par. 59.
 31

provinces. The more it affects the interests, concerns and capacities of the
provinces, the more say the provinces should have on its content.’’.4

7.5 Since the Bill seeks to serve as a uniform legislative measure which would in
future be applied by any expropriating authority to expropriate land in a
constitutional manner and since the Bill seeks to repeal the Expropriation Act,
the envisaged Act would find application in the performance of functions
relating to the majority of areas of concurrent national and provincial
legislative competence listed in Schedule 4 to the Constitution.

7.6 The State Law Advisers are therefore of the view that, since the Bill in
substantial measure falls within functional areas listed in Schedule 4, it must
be dealt with in accordance with the procedure prescribed by section 76(3) of
the Constitution.

7.7 The State Law Advisers are furthermore of the opinion that it is necessary to
refer the Bill to the National House of Traditional Leaders in terms of section
18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003
(Act No. 41 of 2003), since it may impact on the customs of traditional
communities.

4. Tongoane at par. 60.

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