Expropriation without compensation in South African land reform – when is it ethically justifiable?

Abstract

In this dissertation I will discuss the question of whether expropriation without compensation (hereafter “EWC”) is supported by either principles of rectificatory justice or principles of distributive justice. Specifically, I will consider whether EWC is supported by the principles of rectificatory justice or the principles of distributive justice as a permissible means for the state to bring about justice (as the specific conception of justice might require). I will set my discussion within the context of the current public and political debate in South Africa regarding EWC and the draft legislation relating to EWC as set out in further detail below. Expropriation involves state interference with private property rights and therefore requires justification. Expropriation is recognised as a sub-category of deprivation. Arbitrary deprivation of property rights is unacceptable. By contrast, non-arbitrary deprivation by the state in the form of expropriation of property rights is considered to be a justifiable limitation on private property rights when the expropriation meets the following conditions: (i) it is in the public interest or for a public purpose, and (ii) the landholder is compensated for their loss. If the state’s actions fail to meet the first condition and are not for a public purpose or in the public interest, then the expropriation would be considered to be an arbitrary deprivation. What constitutes adequate compensation for the second condition, and whether expropriation without compensation is permissible, is a subject of much debate. The latter is the focus of this dissertation