- Jun 20, 2012
Contrary to more naïve opinion, the South African government is quite close to the point where it could begin seizing property without compensation.
There are twin processes at play here, and their implications extend beyond farms and agriculture to threatened seizures of pension funds and even the economy itself. The manner in which those two processes play out will be important in determining your odds of living in a free and open and ultimately prosperous society.
The twin processes are as follows:
1. The municipality will investigate a property it plans to expropriate, for which purpose it can enter the property either with the consent of the owner or with the backing of a court order.
2. The municipality will then serve on the owner a notice of intention to expropriate and ask for further information, plus invite representations on the proposed expropriation and the compensation offered.
3. The municipality will consider those representations (but will need not respond to them);
4. The municipality will then issue a notice of expropriation, under which both ownership and possession will pass to it on the dates set out in the notice. These dates can be set for very soon after the notice of expropriation has been served (the only time limit on the date on which ownership passes is that it can't be set for a day before the notice of expropriation has been served).
5. Property owners can go to court to challenge the amount of compensation offered (which is likely to be roughly half of market value, on the valuer-general's formula, and sometimes even less) and also the constitutionality of the expropriation (whether it is truly "in the public interest", for example). However, most people will lack the means for such legal challenges and will find them particularly difficult to mount if they have already lost ownership and possession of their properties.
6. Property owners will also have the right to object (on administrative justice grounds) if the time between the service of the expropriation notice and the passing of ownership and then of possession is unreasonably short. In practice, however, most people will also lack the means for this kind of legal challenge.
7. Where the property expropriated includes a person's home, there is no obligation on the expropriating authority to seek court approval for the eviction that will occur when the right to possess the house passes to the municipality.