The Public Purpose Requirement in the Calculation of Just and Equitable Compensation

Abstract

The South Africa Constitution requires that the amount of compensation must reflect an equitable balance between the public interest and the interests of those affected. This balance must be established with reference to the relevant circumstances, including, but not restricted to, the list of factors in section 25(3).

Section 25(3)(e) requires the court to have regard to the purpose of the expropriation. It is not clear whether this means that if land is expropriated for land reform purposes the owner can be expected to accept a lower price than where property is expropriated for non-land reform public purposes, or whether it merely confirms the reformist agenda of section 25. The purpose of the expropriation in section 25(3)(e) is complimented by section 25(4), which states that public interest include the nation’s commitment to land reform.

This paper will consider the possible impact of the public purpose factor in determining compensation for expropriation.

Keywords: Compensation, Expropriation, Takings, Public Purpose, Transformation, Restorative Justice