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1 results

  • 1 - Politics or Principle?

  • from Part I - The Rights and Wrongs of South African Property Law
  • Edited by Olaf Zenker, Martin-Luther-Universität Halle-Wittenberg, Germany, Cherryl Walker, Stellenbosch University, South Africa, Zsa-Zsa Boggenpoel, Stellenbosch University, South Africa
  • Book:
    Beyond Expropriation Without Compensation
    Published online:
    28 March 2024
    Print publication:
    04 April 2024, pp 35-54
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  • Summary

    This chapter focuses on the so-called politics behind nil compensation against the background of some recent judicial developments, which arguably show a conservative trend in awarding compensation that deviates substantially from market value. The chapter questions why the narrative in favour of nil compensation is so dominant if it is argued that it is already legally possible to expropriate for very little compensation. Considering the Msiza judgments in the Land Claims Court and the Supreme Court of Appeal, the chapter asks: Do we need to rethink the space that nil compensation occupies in our legal framework? The fact that expropriation is essentially compensation-based, coupled with the difficulty that courts have to determine compensation that is not (always) related to market value, suggests that it may be necessary for us to engage more directly with the idea of nil compensation in a much more open, honest and principled manner. There is enough evidence to show that this option is not only politically driven but in fact legally necessary.