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COMMENTS ON EXPROPRIATION BILL

COMMENTS ON EXPROPRIATION BILL. SUBMITTED ON BEHALF OF FORESTRY SOUTH AFRICA. PRESENTATION OVERVIEW. Introduction Powers of Investigation Notices of Intention to Expropriate Compensation Claims for Compensation Approval of Compensation by a Court Conclusions. INTRODUCTION.

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COMMENTS ON EXPROPRIATION BILL

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  1. COMMENTS ON EXPROPRIATION BILL SUBMITTED ON BEHALF OF FORESTRY SOUTH AFRICA

  2. PRESENTATIONOVERVIEW • Introduction • Powers of Investigation • Notices of Intention to Expropriate • Compensation • Claims for Compensation • Approval of Compensation by a Court • Conclusions

  3. INTRODUCTION • Forestry South Africa accepts the need to create a legislative framework for expropriation consistent with the Constitution • FSA contends the Bill is objectionable mainly because of: • Failure to provide for expropriation that is procedurally fair • Denial of proper access to the courts • Bill infringes the rights to privacy and human dignity

  4. POWERS OF INVESTIGATION • Clause 10: Investigation and gathering of information • No allowance for owner or holder to influence investigation and recommendations by a Board • Infringement of right to privacy and the right to human dignity • Norm: prior issue of a warrant by judicial authority

  5. NOTICES OF INTENTION TO EXPROPRIATE • Clause 11(1): “If (EA) intends …”. Suggest “contemplates” • Period of 21 days too short + no condonation / extension • Only written objections and submissions • Consideration of objections and submissions • Negotiations without prejudice

  6. COMPENSATION • Clause 15: determination of compensation by expropriating authority • Clause 24: approval of compensation by court • Approach in conflict with section 25(2) of Constitution • More than market value compensation

  7. CLAIMS FOR COMPENSATION • Clause 17(3): Period of 21 days too short • Clause 18(1): Expropriating authority will face same difficulty with 21 day period • Condonation by administrative officials

  8. APPROVAL OF COMPENSATION BY A COURT • Section 25(2)(b) of the Constitution • Decided or approved by a court • Interpret conjunctively as opposed to disjunctively • Bill limits courts to a review of the process • Access to the courts to determine compensation • Review model unconstitutional

  9. CONCLUSIONS • Bill is unconstitutional in certain respects and defective in other respects • Bill ought to be amended to make provision for procedures which recognise and give effect to fundamental rights

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