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Comprehensive Analysis of Expropriation Bill by Forestry South Africa

Explore the in-depth analysis by Forestry South Africa highlighting objections to the expropriation bill, including issues with investigation powers, compensation determination, and court approval. Discover proposed amendments for fair procedures.

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Comprehensive Analysis of Expropriation Bill by Forestry South Africa

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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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