SAPOA Parliament comments on the Expropriation Bill

Posted On Thursday, 03 September 2015 09:40 Published by
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SAPOA was invited by the Department of Public Works to address its comments on the Expropriation Bill in Parliament at the Public Hearings.

Deputy_Public_Works_Minister_Jeremy_Cronin

SAPOA pointed out that the technical difficulties which were raised with respect to the previous version of the Expropriation Bill have been largely attended to.  In broad terms, the structure of the Bill conforms to international standards and the Department is to be commended for the Bill as it stands. However, the following clauses needed to be addressed, as the practical implications of not addressing these issue would be a nightmare:

1. Definition of court

The definition should restrict the Jurisdiction to the high court where the property is situated. The practical difficulties with the current Bill is that in a case of national government, the seat of the particular Minister will be in Pretoria whereas the property expropriated may, for example be situated in the Western Cape or KwaZulu-Natal. In every instance where the compensation is determined by the court, it is necessary for a court inspection to be held.  If, for example, summons is issued in the Gauteng High Court, Pretoria, the costs attendant upon a trial where the witnesses are in the Western Cape or in KwaZulu-Natal in the aforegoing example and where a court inspection is to be held. 

2. Magistrates Court

The magistrates who were presiding over the compensation court were simply not competent to do the determination of compensation. By giving magistrates’ courts’ jurisdiction to determine compensation, the difficulties which led to the removal from the Expropriation Act 63 of 1975 of compensation courts, are again created. This area of determining compensation is a highly technical and requires highly experienced technical persons and a Magistrate should not be saddled with issues where they do not have the technical experience.

3. Jurisdiction of Magistrates Court

SAPOA pointed out that that simple claims that fall within the jurisdiction of magistrates court can be left to magistrate’s court.

4. Costs of Litigation

The argument that costs of litigation in a magistrates’ court is less than in the High Court, can be met by including in clause 21(3) a sub-clause (e) to the effect that should compensation be determined in an amount which falls within the jurisdiction of a magistrates’ court, only the costs taxed on the magistrates’ court’s scale may be allowed.

5. Notice of Expropriation

The bill does not provide for a separate or different method of expropriation in the case of roads or railways.  SAPOA suggested a new section can be added along the following lines:

”Whenever any legislation provides for the expropriation of a road or railway by means of proclamation thereof in the Provincial or Government Gazette, such method of expropriation may be exercised with the necessary changes, subject to the provisions of this Act.”As far as the wording of clause 8(1) is concerned, the phrase “expropriate a property”, should be amended to read “expropriate property”.

6.Time frames set down in terms of the Bill

The period of 60 (sixty) days from the notice of expropriation which is allowed for an expropriatee to issue summons with respect to the determination of compensation, is oppressively short.  It cannot be expected from an expropriatee to have his property valued by a valuer, have the valuation properly analysed and have the claim for compensation prepared within 60 (sixty) days of the notice of expropriation having been served.  In practice, this period of 60 days, which can indeed be imposed in the notice of expropriation itself, is simply impractical and oppressive. A period of 6 (six) months is recommended, but also with a provision that a court may extend the said period on application should the expropriating authority not be willing to do so in terms of clause 25.

7. Arbitration

What is glaringly absent from section 21, in contradistinction to section 14 of the Expropriation Act 63 of 1975, is a provision that the parties may agree to have the amount of compensation determined on arbitration. SAPOA also pointed out that many Advocates provide pro bono work.

8. Compensation

SAPOA stated that compensation should be based on what the person lost, which would include goodwill, income etc. 

The Deputy Minister Jeremy Cronin thanked SAPOA for its valuable contribution in pointing out the practical implications with regards to the implementation of the Bill in its current form and pointed out that he will take under serious consideration all of the points up to point 7. The Compensation issue is an area that Government is still looking at and values all comments.

Last modified on Thursday, 03 September 2015 10:33

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